DC100

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

CASE NO 01 OF 2005

BETWEEN

MARIA MAKET
Complainant

AND

PAUL MAKET
Defendant

Vanimo

August DCM
16 March 2005
13 April 2005
24, 29 June 2005

REASONS FOR DECISION

Cases Cited
Robert Kunjil v Theresia Monpi [1995] PNGLR 281
Re Wagi Non And Section 42(5) Of The Constitution [1991] PNGLR 84

Counsel
Parties by themselves

29th June 2005

AUGUST DCM: This is a claim for maintenance by the complainant against the husband pursuant to section 3 of the Deserted Wives and Children Act alleging constructive desertion.

The complainant and defendant were married according to the custom of the Ruprup Island, East Sepik Province in February 1980. On the 06th of September, 1991 their marriage was solemnized at the Boram Catholic Church Wewak. The family moved to Vanimo in 1998 when the husband took up a position at the Vanimo General Hospital as a Medical Laboratory Technician.

In or about June 2004 while the complainant was in Rabaul for the Blessed Peter Torot Celebration, the husband was alleged to have been sleeping out which she later established upon her return that the he was having an affair with a woman from Vanimo Village by the name of Hena Judas. On the 7th August 2004, the complainant spoke to Hena's father and mother to stop the relationship but this did not succeed. The complainant alleged that since the 7th August 2004, the defendant has been sleeping in Vanimo Village and coming to work.

The defendant on the other hand is denying constructive desertion and that he is still living with his family at the Hospital Compound and giving money to his children and providing food for them. He admitted that only on a few occasions he did not give them money. The defendant admitted that he use to give money to the wife but found out that she was not buying food for the house so he decided to stop and channel the money through her eldest daughter to buy food for the house. On the 8th of March, 2005 he decided to give the wife some money but decided against it when he received the summons to appear in court to answer the complaint. The defendant admitted to court that he spent and will spend most of his time in Vanimo Village because of the wife's abusive behaviour towards him, further stating that, the problem would not have occurred if they do not have "bedside problem" for more than 12 years from 1992 to 2004. The defendant did not elaborate on this bedside problem to court.

What are the issues in this case? I am of the view that the only issue in this case is whether the defendant's action of taking a new wife amounts to constructive desertion?

The law on constructive desertion is section 20 of the Deserted Wives and Children Act which states:

"20 Constructive desertion

For the purpose of this Act, a wife who has been compelled to leave her husband's residence under reasonable apprehension of danger to her person or under other circumstances that reasonably justify her withdrawal from that residence shall be deemed to have been deserted without reasonable cause"

The law is well stated in the case of ROBERT KUNJIL v THERESIA MONPI [1995] PNGLR 281. In that case the husband decided to marry a new wife by custom. When the new wife moved into the matrimonial house, the wife moved out with her children. Woods J held inter alia, "to take a new wife into the home is to create an unreasonable situation for the wife, and it is not unreasonable to expect her to leave. This is constructive desertion by the husband."

In this case before me, the wife has not left the marriage home, but it is the husband who has gone out to leave with another woman whom he claims to be his second wife.

The difference between Monpi's case and this case is that Monpi left the marriage home but the complainant in this case has not. The reason why the complainant did not leave is that although she is only a house wife, she is not from Vanimo but from an island off Wewak. She could not leave because the only place for her to stay is the Hospital Compound, an accommodation provided by the Hospital for the husband by virtue of his employment here in Vanimo. She does not have the support of her relatives here Vanimo which in my view may be different if she was at home in Rurup Islands or Wewak for that matter. She is forced by the circumstances of her husband's employment to remain in the house.

The rationale behind the passage of the Deserted Wives and Childrens Act is to protect wife and children from actions by husbands which might place them in a situation where they may not have any means of support. I am therefore of the view that the focus should not be on whether the wife has left the house, but rather the husband's action that has placed the wife and children in a situation where they can not support themselves. The action of defendant by taking a new wife or second wife while the first wife is still alive or the marriage either by custom or under the Marriage Act has not been dissolved, amounts to a statutory offence of Bigamy under the Marriage Act, which carries a penalty of five years imprisonment. For this court to rule that the action of the defendant does not amount to constructive desertion would be seen as encouraging the act of bigamy and adultery in society.

Papua New Guinean men has for a long time has hidden behind what I would call the "window of custom" citing that it is their customary practice to marry more than one wife. One may ask, is it really custom or is it just one way to legalize by customary law the desire for extra-marital relationship. In my 20 years as a Magistrate, and in most cases of extra-marital relationship, men would always initiate the relationship and if the wives find out, they would raise a defence that it is our customary practice to marry more than one wife. In many parts of Papua New Guinea, chiefs or big men would marry more than one wife not so much for love or pleasure, but because they needed the labour to tend to their big gardens or their pig farms. This is the 20th Century; a wise person would rather have only one wife than many wives, because we no longer have those big gardens to work on. We have replaced that with the "Big Supermarkets" where we buy food to sustain our livelihood and that of our families. Furthermore, why degrade the women folk? Are we supposed to be equal under our National Constitution? Why treat them as second class?

This in my view is unconstitutional and any custom that is repugnant to the Constitution should not recognized by the courts. His Honour Woods J held in the case of Re WAGI NON and Section 42(5) of the CONSTITUTION [1991] PNGLR 84 that "the enforcement of custom must not conflict with the principles and rights in the Constitution."

His Honour further held that "Customs which denigrate women should be denied a place in the underlying law because they conflict with the National Goals of equality and participation laid down in the Constitution."

In the final analysis of this case, the circumstance in Monpi's case is different from this case. In this case, the wife has not left the house, but the action of the husband to take a new wife in my view amounts to constructive desertion contrary to section 20 of the Act.

The situations in both cases are different but the effect is the same: The wife and children are left without means of support. The defendant admitted to not giving the wife money for food for that period in question, which is August 2004 to the 8th of March 2005 when he tried to give her some money but decided against it when he received the summons to come to court. I find that the actions of the defendant amount to constructive desertion. I also find that there is no evidence of what the defendant called "bedside problem" from 1992 to 2005 to the satisfaction of the court. The court could not assume what the problem was, if there was any. I find the defendant liable for maintenance for the wife and the two (2) children of their marriage.

Upon hearing submissions on quantum I now make the following orders: I order that the defendant shall pay maintenance of K100.00 for the wife and K50.00 each for the 2 children, a total of K200.00 every fortnight commencing on pay period ending the 06th of July 2005. The maintenance for the children shall continue until they each attain the age of 16 years, or dies or this order is discharged by a court of competent jurisdiction which ever first occurs. The maintenance for the wife shall continue until she dies or this order is discharged by a court of competent jurisdiction which ever first occurs. The Court further orders that the defendant shall pay all outstanding school fees for the children in what ever school or institution they are attending for 2005 and to continue until they complete whatever school or institution of their choice.

Complainant: In Person
Defendant: In Person