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Kumar v Devi [2001] FJHC 199; HBA1.2000 (25 May 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 2000

Between:

SUJIT KUMAR
s/o Ram Narayan
Appellant/ Original Respondent

And

SUMAN GYATRI DEVI
d/o Matuk Dhari
Respondent/ Original Complainant

Mr. V.P. Ram for the Appellant
Mr. A. Sen for the Respondent

JUDGMENT

This is an appeal by the appellant/husband against the Order of the learned Magistrate made in this action on 9 December 1999 upon a warrant issued by the complainant wherein the Magistrate ordered the respondent to pay $50.00 per week commencing 17 December 1999 upon two grounds. The grounds are: Firstly, that the Learned Magistrate erred in law and in fact in refusing an adjournment and extension of bail to enable the Appellant to make an application to remit the arrears thereby denying his right to make such an application. Secondly, the order made by the learned magistrate was excessive and unreasonable in the circumstances and he ‘failed to observe the principles of natural justice and refused to let counsel examine the appellant as to his means’.

I find that there is no merit in the first ground. It therefore fails.

As for the second ground, the learned magistrate made an order for payment of $50.00 per week commencing from 17.12.99. That $50.00 included $9.00 per week for the child as originally ordered and $41.00 towards arrears which stood at $1,732.00 as at the date of the order on 9.12.99 on the warrant.

On the appellant’s motion in his ruling on 30.3.00 the order of $50.00 was stayed until the finalization of this Appeal.

At the outset I must say that there should not have been a stay of $9.00 (which is included in the $50.00). The main complaint is that $41.00 towards payment of arrears is harsh and excessive in the light of the evidence before the Court.

I agree with Mr. Ram for the appellant that the order is on the high side looking at the very scanty evidence as to the means of the appellant. Applying the principles of law applicable in such case the order for payment of arrears in the sum of $41.00 cannot stand. The learned counsel for the appellant should have been allowed the opportunity to examine the appellant as to his means before making the order.

Therefore, the order for payment of $50.00 is set aside. The order for payment of the said sum of $9.00 being the maintenance for the child remains intact. This means that the Respondent is at liberty to take out a warrant for arrears of maintenance to date. Thereupon the Learned Magistrate proceed to hear the orders sought by the Appellant which was pending before him before this appeal. The second ground succeeds.

The appeal is therefore allowed to the above extent.

D. Pathik
Judge

At Labasa
25 May 2001