DC423

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 614 OF 2001

Rosa Mofaya
Complainant

V

Lia Agupa
First Defendant

Jeno Mofaya
Second Defendants

Goroka: Manue F. Magistrate
2002: 11th December 2001
08th January 2002

Civil Jurisdiction

MANUE F: This is an action by the complainant for adultery against each and several defendants pursuant to section 4 of the Adultery and Enticement Act. The adultery was alleged to have taken places on the 24th August 2001.

The several issues that arise from the case adultery occurred on the 24th August 2001, are acts of adultery occurred on that date. And whether such open relationship between the defendants may be said to be recognized in the community and has the status of marriage and if not whether the violent behaviour and actions of the complainant is a defence to the adultery complaint of.

The second defendant and the complainant are married by custom and have seven (7) children. He is the Headmaster at Barola Community School at the time of the complaint. At the time of the alleged adultery, the complainant was living away in the second defendant’s village at Okapa while he was at Barola Community School. It was during her absence from the matrimonial house that the adultery eventuated and continues to the time of trial of this matter.

On the relevant date, the complainant was summonsed by the second defendant to go to the said school. This was intended for defendant two to inform her of his intention to marry a second wife assumably the first defendant. On arrival, the second defendant informed her that the first defendant had been living with him but had just been sent to her village. When she learnt of that she argued and fought the second defendant.

Thereafter, the defendant informed his staff members and members of the School Board of Governors that he would take the first defendant into his house to be his wife. He then openly invited the second defendant to his house that has been and is living with him.

There is no evidence of any formality of a marriage being celebrated to formalize the first and second defendants’ marriage.

The first question for consideration is whether the defendants committed adultery on the 24th August 2001. It is a questioned of both facts and law.

The Law: The law on adultery is stated in Section 4 of Adultery and Enticement Act. Section 4 (2) of the Adultery and Enticement Act reads:-

(2) For the purposes of an action under subsection (1), all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery.

The facts show that the complainant was not aware of what the complainant of what the second defendant was doing, i.e. his newly created relationship with the second defendant. She only learnt of it via the defendant two when she arrived at Barola School. The second defendant actually released the news to her saying that he intended to marry the first defendant. It was upon the confession of the second defendant that the summons was issued. 

Am I entitled to assume that adultery took place on the 24th August 2001 or any day prior to that date? 

The first defendant was not in the house of the second defendant when the complainant arrived on 24th August 2001. The complainant does not state whether she arrived in the morning or afternoon of the 24th August 2001. However if the first defendant, and I take that to be so, had been sleeping with the second defendant on the night of 23rd August and send away on the 24th August. Then I can safely infer that acts of adultery may have occurred that night or in the early hours of the alleged date.

Furthermore, if the second defendant had the intention of marrying the first defendant as stated to the complainant, then the alleged date would not have been the only date the co-defendant would have most likely spent with him. She may have most likely lived with or stayed with him on other dates prior to the alleged date.

In my view, the law as stated covers such situations and circumstances – (Section 4 (2) in the Adultery and Enticement Act). It is my view that acts of adultery did take place on or prior to the 24th August 2001.

As to the fact of the defendants living together after the 24th August 2001involves different questions of fact and law. 

I decline to enter into discussion over the circumstances. Having said that, the next question for consideration is whether there are any defences available to the defendants. Defendant two particularly raised two questions. He stated that he had openly taken the first defendant into his house and declared to be his wife and secondly, the violent actions of the complainant towards the second defendant lead or forced him to take the first defendant as his wife.

To answer the questions, we would have to consider what constitutes a customary marriage and who authorizes customary marriages etc in that particular locality. In other words in the custom of the area who gives marriages and what are the processes or procedures of customary marriage in that area.

The questions are both of facts. No definition of customary marriage is to be found in the family law books or laws that make up family law.

Section 3 of the Marriage Act says that for a customary marriage to be valid, it must comply with the custom or group which the parties "or either of them belong or belongs."

For this court to be satisfied that there was a customary marriage, evidence of such custom must be produced or provided.

In this case the second defendant stated only that he made announcements publicly that he was taking the first defendant as his second wife. The first defendant stated that she was invited to live with the co-defendant in his house. She was invited to the house when the complainant became violent and injured the second defendant. Whether such public announcements may be concluded to be a marriage by custom of the area, cannot be said. Parties did not produce evidence to that effect.

The first defendant’s immediate relatives did not give evidence to substantiate that the first defendant’s relatives accepted the defendants’ relationship. At least from the view of the second defendant’s immediate family members, their relationship is not accepted. One of the complainant’s witnesses who is a daughter to the second defendant stated that she did not see the first defendant as her second mother. She only saw the relationship as one of an adulterous affair. There is little evidence or lack of it to establish that the defendants are married.

As to the question of whether the violent behaviour of the complainant which lead to first defendant inviting the co-defendant to his house, depended again on whether there existed such customary practice. No such evidence was produced to that effect.

Even if evidence was produced to substantiate the custom, the parties would still be held liable for adultery, as they had lived together prior to and on the 24th ‘August 2001.

I find that the defences raised are not available to the defendants. I find that the defendants have committed adultery on or prior to the 24th August 2001.