Ruben v Owin [2009] PGDC 24; DC869 (16 April 2009)

DC869

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

COMPLAINT NO 01 OF 2009

BETWEEN

BETTY RUBEN
Complainant

AND

ROSE OWIN
First Defendant

AND

REUBEN HEZURA
Second Defendant

LIHIR: B.TASIKUL
2009: APRIL, 16

REASON FOR DECISION

TASIKUL, B.: This is a claim brought under the Adultery and Enticement Act, 1988.The complainant is seeking compensation pursuant to s.11 of the Act. The complainant claims that she was married to Reuben for some years now.Eventhough they don’t have children. They adopted a child from Betty’s sister.

2. The fact of the matter is that Reuben was employed by a security company in Rabaul when he first met the complainant, around 1993or 1994They have been living together at the complainant village in Rabaul.Reuben lost his job and decided to come to Lihir to look for a job. With the assistance from Winnie whom Reuben called her aunty he manages to come to Lihir and found himself another job with another security company.

3.While Reuben was working and living on Lihir, the complainant was staying in her village back at Rabaul.However there were times she would come and visit Reuben at Lihir.Reuben claims that she would only comes and stays for a couple of weeks only, mostly to do her marketing.

4. The reasons why Reuben decided to leave Betty and enter into another relationship with Rose basically because he claims that Betty is not his legal wife. There was no proper marriage arrangement or any form of bride price paid. He further claim that Betty has been away from him for almost two years .While he was sick Betty was not there for him, that is why he cannot accept her as his wife.

5. Before Betty and Reuben came to live together, Betty had previously married with children from that first marriage. She explained why she does not live with Reuben because she has to look after her children in Rabaul.The defendant Reuben now claims that because of this reason he now decided to enter into a new relationship with Rose.

6. The issue is now whether the relationship between Reuben and Rose can be considered a subsisting having the status of a marriage?

S.1 of the Adultery and Enticement Act, defined spouse as,

a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of marriage.

7. There are two kinds of marriage relationship covered under the definition of spouse in s.1, a registered marriage under Part V of the Marriage Act and a customary marriage.

8. I am satisfied in this present matter, that this is not a registered marriage, likewise it is not a customary marriage. This is because there is no evidence before me to justify what kind of marriage the entered into.

9. The complainant comes from Rabaul, East New Britain Province, while the defendant Reuben comes from Finchafen, in Morobe Province and the second defendant hails from Duke of York, in East New Britain. The parties now live in Lihir New Ireland Province, whereas they sometimes travel to and fro to their respective province.

10. Having said that the question remains unanswered as to whether the relationship between Betty and Reuben can be considered a subsisting relationship having the status of marriage.

11. Because the Adultery and Enticement Act is silent on the definition of marriage, I refer the case of Elma John and Luke Mane (1998) Unreported Judgement, in which his honour, Injia J stated as I quote;

As to what factors are relevant to be considered in deciding whether a relationship is one enjoying the status of a marriage are many and of course will depend on the circumstance of each case. Some of the notable common factors include the circumstance of cohabitation including the place and period of cohabitation, the children born to the couple in this period, the acceptance of the union of the couple by the immediate parents and relatives of the couple through out the period of cohabitation, where custom of certain societies require bride price payment as a pre- requisite to a valid marriage, the demand for payment of bride price by the woman and her relatives in this period, the reciprocal exchange of gifts and understanding of economic obligation between the couple and their respective relatives in recognition or furthermore of their relationship and the regard they had of the relationship of the couple by members of the community the couple lived in and the people they relate to.

12. According to the evidence adduced by the complainant is that, when both of them first met in Rabaul Reuben normally reside with her at her village. That was confirmed by her two witnesses. Her brother Joel Apelis testified that he knows about their relationship, but wasn’t to concern about their problem, when he saw Reuben with Rose together, he sent message to his sister to come to Lihir and see for herself.

13. The complainant’s witnesses who are her relatives testified that they regarded Betty and Reuben as marriage couple. This is because since 1993 till now they have been living together; even though there were times Betty was away in Rabaul they still considered them as marriage couple.

14. Even though, they did not have any children of their own they did adopted a child which Reuben accepted as their child. This was of course not disputed by the defendant.

15. Reuben testified that he paid K300.00 as bride price, which was disputed by the complainant as, her claim, she knew only of a K100.00 which was given to a relative. I don’t know whether if it’s really bride payment or something else.

16. Bride prices in some society are paid where customary rites are perform and are witnessed by both relatives of the parties. Payment is either in cash, traditional shell money, pigs, and foods. I don’t know whether it is the same in East New Britain and Morobe where both of them comes from. There were no evidences; by either the parties as to how the bride price was paid and who were present to witnesses it.

17.From my own view I think this was not bride price but it is what some society refers to it as baim shame. (That is when a man is going around with a woman then this man must pay some form of compensation to the relatives of the woman.)I don’t know whether this same customary practice is practiced in both East New Britain and Morobe respectively, but from my opinion I don’t think such payment meets the distinct character of a customary bride price payment.

18. I have no doubt that when Reuben and Betty were living together in Rabaul; Betty’s relatives recognize them as married couples. They are no longer in Rabaul, but now resides in Lihir and what do the community at Lihir, especially those people living next to them and those related to them.

19. A witness Jeffery testified that he has known both Reuben and Betty since 2001. He lives next to them at Putput village.The last time he saw Betty was in 2006, most of the time she comes and go, just to do her marketing. Sometime later he saw Reuben taking Rose to his house.

20.The moving in of Rose with Reuben was on the understanding that Betty and Reuben had broke up their relationship. This is the same sensation that Jeffery share, thinking that Betty has left Reuben that is why Reuben now took Rose as his new partner. Jeffery testified that he did not recognized Betty as Reuben’s wife because she has left him for to long. She has failed to deliver her obligation as a wife to Reuben.

21. As mentioned earlier, that before Betty and Reuben came to live together; Betty was previously married where she had her own children. I don’t known what happen to her previous husband. Did they get separated? Was their marriage a customary or statutory marriage?

22. The Marriage Act only recognized two type of marriage as legal: a customary marriage and a registered marriage. The most common type of marriage people entered into today is customary marriage. However a customary must comply with all traditional customary obligations to be legally recognized.

23. Once two parties entered into a customary relationship, that relationship would be legally recognized as long as their retionship is not dissolved. A party cant entered into another relationship if the first relationship was not properly dissolve. In this case Betty had a previous marriage then she entered into a new relationship with Reuben, the question is did she dissolved her first marriage? There is no evidence before me as to what happen to her previous marriage.

24.Because people leaving their village and coming to urban areas looking for jobs they normally end ups in this type of situation. They often think that it is easy to engage into any relationship without considering the aftermath of it. Regardless of how many years you may live togetherwith, the law will not recognized that type of relationship.

25. Betty and Rueben may have lived together for some years, which Betty’s relatives have considered them as marry couple that when they were in Rabaul, however when Reuben came to Lihir Betty failed to meet up with him that is why the community in where Reuben is now, living failed to recognized her as Reuben’s wife. To have a valid marriage the community they are from must recognized that relationship. It is my view that their relationship can not be the one having the status of marriage under the meaning of spouse under the Adultery and Enticement Act.

I therefore dismissed this matter.

Complainant in person
Defendant each in person.