IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. HBA 10 OF 2001S
(SUVA MAGISTRATES’ COURT MATRIMONIAL CAUSE NO. 321 OF 2000)

Between:

ANJANI LATA
Appellant

and

DAYA RAM
Respondent

R. Naidu for the Appellant
D. Sharma for the Respondent

JUDGMENT

The parties who are both civil servants were married in 1984. In July 2000 the wife petitioned for divorce on the grounds of cruelty. In addition to a decree nisi she prayed for custody of and maintenance for the child of the family, then aged 4.

In August 2000 the husband filed an Answer. He denied cruelty and prayed for dismissal of the petition. In the alternative and in the event of a decree been granted he sought transfer to him of one  share in the matrimonial home at Nailuva road.

In a careful Judgment handed down on 16 March 2000 the Resident Magistrate (A. Katonivualiku Esq RM) concluded that the petitioner had not proved cruelty. He dismissed the petition. However he granted the husband’s request for a property adjustment order. This is the wife’s appeal against that order.

The Court’s power to make a property adjustment order is contained in Section 86 (1) of the Matrimonial Causes Act (Cap. 51). An order of this type may be made “if the Court considers it just and equitable in the circumstances of the case”. As has been seen, the husband’s request for a property adjustment order was conditional upon the granting of a decree to the wife. Since the wife’s petition was dismissed the prayer for a property adjustment order lapsed. This is because a Respondent’s application for ancillary relief must be contained in the Answer (see Section 55 (2) of the Act).

The power to grant a property adjustment order in matrimonial proceedings is relatively new. In England and Wales it was not introduced until the passage of the Matrimonial Causes Act 1973. Our own Act dates from 1969.

In Shakuntala v. Karan 24 FLR 87 the Fiji Court of Appeal held that the restriction on granting Section 86 relief following dismissal of the petition which is imposed by Section 89 of the Act does not apply to an Answer. It is worth however bearing in mind the words of Kitto J in Lansell v. Lansell 110 CLR 353 who said:

“in considering under Section 86 (1) what is just and equitable in the circumstances the court is not restricted to considerations relevant to maintenance: but they share with both the character of relief incidental to because consequential upon the dissolution of a marriage…”.

Section 24 (1) of the English Act makes it clear that property adjustment orders must only be made after granting a decree dissolving the marriage. Although Section 89 does not apply to Answers it is hard to conceive a situation where it would be just or appropriate to make a property adjustment order at the same time as refusing to dissolve the marriage.

I would also add that while I find that the Resident Magistrate gave careful consideration to this aspect of the case it is not apparent to me that the husband had established any financial need to have one  of the matrimonial home given to the wife by her mother, transferred to him.

The appeal is allowed and the property adjustment order is set aside.

M.D. Scott
Judge

15 November 2001