Maik v Maik [2008] PGDC 135; DC903 (5 September 2008)

DC903

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DC 165 – 166 of 2008

BETWEEN

MACULATA MAIK
Complainant

AND

RICHARD MAIK
1ST Defendant

ROSE GABO
2ND Defendant

Wewak: D. Susame
2008: September 5

CIVIL LAW – Action for Adultery – Defence of Consent – S. 9 (1)(a) Adultery and Enticement Act 1988 – Whether Defence available.

Held:

1. Consent is available as a defence as long as consent was given prior to the commission of the act of adultery or enticement.

2. And consent must have been obtained without element of fraud, duress, threat, intimidation, bribery or any other undue influence exerted to the person giving consent.

3. On the evidence no consent was given prior to the commission of the act complained of.

4. Both defendants are guilty of Adultery.

Cases Cited
None

Counsel

In Person, For The Complainant
In Persons, For The Defendants

5 September 2008

DECISION

D. Susame : This is an action for adultery under the Adultery and Enticement Act 1988.

FACTS

2. The uncontested facts as it flows from the evidence are these. Both defendants commenced sexual relations in Madang when the complainant’s spouse was attending a five weeks long fisheries workshop from 20 January to 22 February 2008. Although Rose knew Richard was married their relationship continued resulting in Rose becoming pregnant. Because of the situation they had created Richard decided to take Rose as his second wife.

3. On returning to Wewak after the workshop, Richard did not tell his wife about his affair with Rose until 15 March 2008. Richard was apologetic and told his wife of his relationship with Rose and her pregnancy. To make right the wrong Richard then asked his wife for her approval to take Rose as his second wife so as to avoid paying child maintenance. It was under these circumstances the wife agreed and Richard had to travel to Madang and returned with Rose in early April 2008. Both defendants are now living together while the complainant and her children are living in a separate house.

4. In their defence both defendants asserted that complainant had consented to her husband taking Rose as his second wife. This then became the main issue for the Court to decide on.

5. Consent is one of the statutory defence that is available to a defendant in an action for adultery or enticement. The defence is specifically provided for in S.9 (1) (a) of the Act. The provision reads:

5.1 A defendant to an action under this Act may, without prejudiced to any other defences which he may raise, raise any or all of the following defences:-

5.1 –(a) "that the person entitled to bring the action has, prior to the commission of the act of adultery or enticement, consented to the act of adultery or enticement, as the case may be, or" (underlining added for emphasis)

6. The important phase in the interpretation of the above provision is "prior to the commision"

7. The wording of the section is explicitly clear. Consent is available as a defence as long as it was given prior to the commission of the act of adultery or enticement. In other words sometime earlier the complainant had given consent for defendants to commit the act of adultery or enticement and relying on such a representation the act of adultery or enticement was committed. Consent of course must have been obtained without any element of fraud, duress, threats, intimidation, bribery or any other undue influence exerted to the complainant.

8. So the issue here is not about consenting to marry. The issue is about whether the complainant had given her consent or approval prior to defendants committing the act of adultery complained of.

FINDING

9. The Court has heard evidence from the parties. It is very clear from the evidence that no prior approval or consent was given by the complainant for the defendants to have sexual relations in Madang. Both had had sexual relations without the knowledge and approval of the complainant. Rose became pregnant as a result of this illicit affair. Both defendants then made plans to get married and following their discussions, Richard sought for his wife’s consent on 15 March 2008. That was the first time the complainant became aware of her husband’s relationship with Rose.

10. Furthermore, is it right and fair for the husband, after having committed adultery without the knowledge and approval of his spouse, and make right the wrong by asking his wife to give him approval to take the other woman as his second wife? I think it is most unfair to the wife when she has been betrayed and cheated of her love. The complainant was emotionally hurt and she had every right to seek appropriate remedy in a Court of law and justice for the unlawful and immoral act her husband had committed with Rose.

11. The conclusion reached from the discussions is that both defendants are guilty of adultery and each of them must pay compensation for the emotional pain and distress the complainant has suffered.

__________________________

For the Complainant, In person
For the Defendants, In person