Kasau v Benga [2009] PGDC 30; DC871 (14 May 2009)

DC871

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

COMPLAINAT NO 03 OF 2009

CATHY KASAU
Complainant

AND

NORMAN. S. BENGA
First Defendant

AND

HINGAI KIAPSENI
Second Defendant

LIHIR: B. TASIKUL
2009: MAY, 14

JUDGMENT

TASIKUL, BRUCE: The complainant is suing both defendants for engaging in voluntarily sexual intercourse with each other knowing very well that the complainant is the lawful spouse of the first defendant. This complaint is laid under s.4 (1) (c) of the Adultery and Enticement Act 1988 which reads:

A person whose spouse has committed an act of adultery may bring an action under this Act against-

(a) the spouse; or

(b) the person with whom the spouse has committed the act of adultery; or

(c) the spouse and the person referred to in paragraph (b)

The complainant is therefore claiming compensation under s.11 of the Act. She is alleging that the first defendant Norman is her husband as they have been living together for sometimes, in which their relatives have recognized their relationship.

According to the evidence the complainant was first married to a local man, whom they got separated sometimes in 2006.They had children of their own. The complainant was living by her own, so at one time she approached Norman asking him to be her friend. That relationship was meant for Norman to assist her look after the business and most importantly was for him to share her problem with him.

However that plan did not turn up the way she wanted it to be. Both of them started going out together. This makes Moses Otto the brother of the first defendant suspicious about their relationship. Moses then called both of them and questioned them about their relationship, in which Norman admitted having a sexual relationship with the complainant.

Because their relationship has been exposed they decided to leave the air port where they were staying and went too stayed with Lydia at Kopi, Londolovit village. Before that, the complainant approached Joe Arbilas and told him that she had a new husband. The next day both of them went to see Joe in which they paid traditional shell money called miss as shame money.

They lived together for some months in which Cathy on one occasion sent Norman to Kimbe. Cathy alleged that the purpose of him going was to inform his family about their relationship, however Norman disputed that saying, he went there for purely businesswise, to look for a block so that they can extent Cathy’s business to Kimbe

When Norman returned from Kimbe they left Kopi and went to live at Kunaye village. This is basically, because the complainant’s children were not happy about their mother’s relationship to Norman. On several occasions they fought with Norman that is why they have been trying to avoid them.

While they were staying at Kunaye they paid one miss and K100.00 to the complainants’ clan leaders. They continued to live on up until sometimes in September 2007 bride price was paid to the Tinatalgo clan.

Then the following year in 2008 the defendant Norman left and enters in to a new relationship with Hingai Kiapseni.That is why the complainant brought this proceeding against both of them. The reason why he left Cathy was basically because her children has been continually assaulting and threatening him.

The main issue that the court needs to determined is: whether or not that the relationship between Cathy and Norman can be considered a subsisting relationship having the status of a marriage?

The Adultery and Enticement Act 1988, does not defined the word marriage, however s.1 of the Act defined the word 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 a marriage.

Can the relationship between Cathy and Norman be one of those that can be considered having the status of a marriage?

The complainant comes from Manus Province and has been living on Lihir Island for many years as her previous husband was from Lihir.She has been adopted in Tinatalgo clan of Lihir.Whereas the defendant Norman hails from West New Britain Province and the second defendant comes from Lihir Island.

The defendant denies the existence of his marriage relationship with the complainant and adduced evidence that he was force to by the complainant to enter into this relationship. This is because the complainant had the money which she bribe the defendant.

Nevertheless it must be noted that there are three kinds of marriage covered under the Marriage Act (1) a registered marriage or commonly known as statutory marriage (2) a customary marriage. (3) status marriage.

Because the Adultery and Enticement Act is silent on the definition of marriage, I refer to a similar case of Elma John and Luke Mane v John Nake (1988) Unreported Judgment in which his honor Injia J (as he was then) 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 the 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 throughout the period of cohabitation, where custom of certain societies require bride price payment as a prerequisite 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 under taking of economic obligations between the couple and their respective relatives in recognition or furtherance of their relationships and the regard had of the relationship of the couple by members of the community the couple live and the people they relate to.

According to the evidence both parties have been living together for a few months in which the community around them knew about their relationship. There are evidence that there were some customary obligation perform into cementing their relationship. For instance there were payments of traditional shell money paid to the complainant relatives as shame money.

The complainant further claims that her bride price was paid by the defendant, however the defendant maintain that whatever payment that were paid to Cathy’s relatives were paid by Cathy herself. He never spent any money or his brother on Cathy’s bride price. Cathy did this because she wanted somebody to be with her.

On the other hand Norman was blind by Cathy money that’s why he continued to submit himself to Cathy. If Cathy claims of bride price payment was paid by Norman’s relatives the question is why then his brother did not know about this matters. He should have taken the lead in organizing such ceremony.

I do not think this was a status marriage relationship, why didn’t Cathy immediate children accept Norman at the first place. I am of the view that this kind of relationship cannot fall with the meaning of a spouse under the Adultery and Enticement Act.

There was one very important issue mention during the hearing which I think should be make mention in this judgment. There was evidence that Cathy spent a lot of her money on Norman during the period of their cohabitation.

It has been held in the National Court in Bulage v Ben that there are no cause of action under which a de facto husband or wife may recover the everyday expenditure incurred during the course of the relationship because they are not matters to which the courts attribute a contractual relationship.

I therefore have this matter dismissed.

______________________

Complainant in person
Defendant in person