Fiji Law Reports

I am also in complete agreement with paragraph 12(3), (f) and (h) of the said affidavit that the children are attending school and that he is the soladwinner in the family and that he stands to lose his job as a result of which his family wily will suffer.

“However, stro strong voices have been raisedaised recently in some forums that the public is most dissatisfied with the meagre sentences which are being imposed on offenders guilty of domestic violence and that the magistrates pay scant regard to gender sensitivity in such cases. It is being advocated that custom, tradition or culture should not be used as an excuse or reason for promoting reconciliation in matters of domestic violence and that a husband’s assault on his wife should be treated no different from a man assaulting any other woman in the street or outside a night club. In other words if reconciliation is not proper in the latter case then it is equally improper in the former.

The Magist have been toen told that they should listen to the facts and sentence the offending husband in the same manner as in any other of assault. They have been told that, and I quote, “whether the marriage breaks down down is not your concern and that we are not social workers.” It has further been said that domestic violence should be treated as any other criminal offence and that, again I quote “we are not there to protect the family”. It has been said that the general public, women’s organisations and other NGO’s are unhappy with the lenient sentences, or no sentences passed by the Courts in matters of domestic violence. As pointed out above the advocates of such a view are not prepared to accept that bearing in mind the social and economic condition in this country and bearing in mind, maybe to a small extent, the tradition and culture in which the bulk of the rural population has been brought up, it is unwise to treat a husband and wife assault in the same manner as if the same person had committed a similar assault outside a night club. They are not prepared to accept that though the latter may be a clear case of no re-reconciliation and a custodial sentence, considering the social and economic conditions current in our society, such rigorous and indiscriminate application of the law in a husband and wife situation, particularly where there are children and the parties are prepared to reconcile, albeit after some coaxing, will undoubtedly bring about disastrous social and economic consequences. We are, for some reason, told that, that is none of our business.

In the present case, in , in spite of the fact that this Court was fully conscious of the retrograde step it was taking, in the light of the standard set out , it had no choice but to impose a custodial sentence of 4 of 4 months imprisonment because if anyone had subjected a woman to that kind of assault out in the street or outside a night club which resulted in injuries such as those received by Uttra Wati, a 4 month sentence would be somewhat on the lighter side.

The Court was loath to apply the test set out above, that is, that an assault by a husand on his wife must be treated as an assault on anyone else and reconciliation, marriage breakdo effect on children should not be taken into consideration tion by the Magistrates because they are not there to protect the family neither are they social workers.”

It is clear in refusingusing bail the learned Magistrate had allowed himself to become overly affected by peripheral sentiments against his own better judgment for justice based on his understanding of exg law in this country. Judi Judicial officers are sworn to do justice according to law and to discharge their judicial function without fear or favour, affection or ill will. It seems clear that the learned Magistrate had let himself down and others concerned in the case by his undue preoccupation with polemical diversions. The concluding passage from the Ruling which is quoted below is, if I may with respect say so, somewhat lamentable in its lack of decisiveness and proper exercise of judicial authority:

“I am firmly of the view that custodial sentence, if it threatens a breakdown of the marriage, or if there is a likelihood that such a move may adversely affect the welfare of the family, should be avoided.

Unfortunately, agisMagistrates are advised that it is wrong to adopt such an attitude and what they should do is to regard the offending husbanthe same manner as if the victim of the assault was not his wife but a stranger and sentencntence him accordingly. As already mentioned, if the victim in a case such as this was a stranger, the assailant would have certainly gone to prison.