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Lata v Shankar [2005] FJHC 227; HBD0003.2005 (15 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBD0003 OF 2005

BETWEEN:

ARUNA CHAND LATA
PETITIONER

AND:

PRAVENDRA SHANKAR
RESPONDENT

Ms P. Maharaj for Petitioner
Mr. D. Prasad for Respondent

Date of Hearing: 1st August 2005
Date of Ruling: 15th August 2005

RULING ON NOTICE

At issue in this application is Section 30(3) of Matrimonial Causes Act Cap 51 which permits leave to be granted to file divorce within the three-year period of marriage if refusal to grant leave would cause “exceptional hardship” or that the case is one involving ‘exceptional depravity’. The qualifying word is “exceptional” which means out of ordinary. The circumstances must be such that it takes the case out of and “beyond the normal hardship involved in a case of cruelty” – Sitama Begum v. Liaqat Ali & Suruj Kumari v. Atil Kumar - Consolidated Action 179 and 180 of 1978 Lautoka High Court.

The applicant has attached a copy of proposed divorce petition with the application. She alleges in her petition that the applicant is aggressive, and has frequently assaulted her and threatened to kill her. She accused him of being a drunkard and of having accused her of adultery and being very abusive.

She deposes that she obtained a non-molestation order ex-parte but that has not stopped the defendant from harassing her and coming to her work place and trying to strangle her. She has attached a medical certificate and also photos to show what appear to be bruises around her neck. Besides there are E-mails which have passed between the parties and which reveal an utter lack of sensitivity by both parties towards the feelings of the other.

Cruelty by itself is not exceptional. If it is accompanied by some aggravating features like drunkenness, neglect, violence and causes danger to health then it can cause exceptional hardship to the applicant – Bowman v. Bowman - (1949) 2 ALL ER 127; (1949) 65 LTR 461.

When considering a case alleging exceptional hardship, the Court takes a subjective view, that is, it looks at the effect on the petitioner of the situation that has developed – Hillier v. Hillier & Latham – 1958 2 ALL ER 261. The applicant alleges that the conduct of the respondent is causing her mental stress. In Brewer v. Brewer – 1964 1 ALL ER 539 at 541 Willmer L.J. speaking of similar provision in England expressed the view that the section was aimed not only at hardship suffered in the past but also probably at hardship suffered presently and prospect of hardship in the future.

Section 30(4) requires the court in such applications to consider the interest of the children (which does not apply to the present case there being no children) and “reasonable probability of a reconciliation”.

On this latter point it is “most material to inquire what the applicant has already done to try to make the marriage a success or to become reconciled” – Bowman v. Bowman. I had questioned the applicant’s counsel and she says that no efforts were made to see a welfare officer. In Fiji it is usual for parties to consult a welfare officer as they are qualified by experience to assist in such matters and who often achieve success in their efforts. The parties in these proceedings began to live together after their traditional ceremony by 28th August 2004 and by 14th January 2005 the applicant had filed an application for ex-parte non-molestation order. That is within five months of living together the applicant alleges that it was impossible to associate with the respondent.

The applicant says that she will not reconcile with the respondent and seeks leave. These are educated people and presumably know what they want. There is in the affidavits evidence of parties meeting after grant of non-molestation order but whether these were forced upon by the respondent or genuine attempts to reconcile I cannot say. However given the nature of accusations in the affidavits, I am of the view referring these two persons to welfare officer may be an exercise in futility. I do not see why the applicant ought to be on her guard even at work against the possible violence from the respondent.

I realise the overall objective of courts is to preserve marriages. However I grant leave to issue petition within three years of marriage.

In considering this application, I do not have to examine the truth of allegations. If the applicant is not telling the truth, then that can be investigated by process of cross-examination in the domestic court. Whether or not cruelty is proved is entirely for the domestic court to decide.

Leave granted. No order as to costs.

[ Jiten Singh ]
JUDGE

At Suva
15th August 2005