N534(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

MARTHA AEAVA

V

OA IKUPU

Waigani
Barnett J
28 February 1986

MAINTENANCE - Orders for - Where subsisting marriage only - Customary marriage dissolved by custom - No jurisdiction to make maintenance order - Deserted Wives and Children Act (Ch No 277).

MAINTENANCE - Orders for - Adultery - Proof of - By circumstantial evidence - Principles applicable.

EVIDENCE - Circumstantial evidence - Proof of adultery by - Principles applicable.

Held

(1) Where a customary marriage has also been dissolved according to native custom no order for maintenance may be made under the Deserted Wives and Children Act (Ch No 277).

(2) Adultery may be proved by circumstantial evidence. Such evidence should prove an opportunity for committing adultery as well as some evidence of "guilty passion", and the conclusions to be drawn from the proven circumstances must take account of the personal particulars of the people involved and also the accepted standards of behaviour of the time and place.

Cases Cited

Igua Nou v Karoho Vagi [1986] PNGLR 1.

Appeal

This was an appeal from an order of a District Court magistrate discharging an order for maintenance made under the Deserted Wives and Children Act (Ch No 277) by a Local Court.

Counsel

S Injia, for the appellant.
V Kapa, for the respondent.

28 February 1986

BARNETT J: This is an appeal against an order of the District Court at Port Moresby which on 23 April 1985 discharged a maintenance order previously made against the respondent in favour of the appellant by a local court on 14 July 1978. The local court had ordered the respondent to pay the sum of fifteen kina per fortnight as maintenance for the wife and five kina for maintenance of the child JAI.

The ground for discharging the order for the child was that the child had died on 5 December 1979. (This order is not appealed.) The learned magistrate also found that the appellant wife had committed adultery with one Taetae on 1 June 1983 and he then exercised his discretion under s 11 of the Deserted Wives and Children Act (Ch No 277) to discharge the order to maintain the appellant as from 1 June 1983. It is against this latter order that the appellant appeals.

After reading the depositions and hearing argument of counsel for both parties to this appeal I find that the learned magistrate erred in finding that adultery had been proved against the appellant.

The evidence of adultery was entirely circumstantial. It consisted of one witness swearing that he once saw the appellant drive past him in a car being driven by Taetae and another witness who saw her sitting with Taetae in a car in Boroko in broad daylight on a public street. He also swore that he had seen her shopping and waiting on a bus stop with Taetae.

At common law, and no doubt by custom, it is possible to prove adultery by circumstantial evidence. This has normally been taken to mean proof of an opportunity for committing adultery as well as some evidence of "guilty passion". A typical example would be proof that a couple spent a night together in a hotel room under a false name.

The conclusions to be drawn from proven circumstances must of course take account of the personal particulars of the people involved and also the accepted standards of behaviour of the time and place.

In this case the proven circumstances did not justify the magistrate in concluding that adultery had occurred. The appellant is an educated and modern woman employed in the cash sector of the economy. Her marriage had ceased to function several years before she was seen in the company of a man who was not related to her. Nothing in the circumstances proved pointed towards adultery, even though there is evidence that she made some attempt to conceal her face when being seen by one of the husband’s friends.

The magistrate was therefore wrong to discharge the maintenance order on the grounds of her adultery. It was not proved to either the criminal or even the civil standard of proof. This however does not end the matter.

The original marriage was one by native custom. Although no bride payment was given, it appears that the union between the respondent and appellant was treated as a marriage, and this must have been the basis for the local court magistrate’s original maintenance order in favour of the appellant "wife". The respondent apparently deserted the appellant sometime in 1978 and the local court maintenance order was made on 14 July 1978.

On the respondent’s evidence it appears that he married a new wife in December 1979. He and another witness referred in the evidence to the fact that the original marriage between the appellant and respondent was "broken" or dissolved at about that time.

On the evidence and as a matter of commonsense and common practice, I find that the customary marriage between the appellant and the respondent dissolved by native custom sometime during 1979 when all parties and the relatives on both sides had come to accept that it had irretrievably broken down. By the end of 1979 co-habitation and communication between the appellant and the respondent had ceased, the only child of their marriage had died, the respondent was married to another woman and they had commenced their new family. No bride payment had been returned but then none had ever been given. Being a customary marriage no court order was necessary in order to dissolve it. In finding that the marriage had dissolved, I am following the same principles which I expressed more fully in the case of Igua Nou v Karoho Vagi [1986] PNGLR 1.

I now place myself in the shoes of the learned district court magistrate and exercise the power given to me by s 230 of the District Courts Act (Ch No 40) to make an order which he could have made.

I find that the marriage between the appellant and the respondent was dissolved by custom during 1979 and I discharge the maintenance order made against the respondent as from 30 December 1979. Such payments as he may have made since that date the appellant is entitled to keep as she received them under a valid court order. She is not however entitled to enforce payment of any arrears since that date.

The Deserted Wives and Children Act (Ch No 277) is intended to oblige a husband to pay maintenance to a wife he had deserted during the continuance of that marriage. Once the marriage is dissolved no further payment can be enforced under that Act. For a statutory marriage dissolution is granted by a court order and there is provision for maintenance to be ordered under the Matrimonial Causes Act (Ch No 282). If, however, the dissolution is by custom the question of possible continuous obligations for the former husband to pay maintenance to the divorced wife would have to be determined according to the custom involved. Whereas it is common for return of marriage payments to be arranged between affinal relatives on customary dissolution, the question of continuing maintenance for the wife is generally left to the accepted obligations of the wife’s own relatives. It would be most unusual for the former husband to have such a continuing obligation to maintain his former wife according to custom. No such custom was proved or even contemplated in this case.

ORDER

1. The decision of the District Court magistrate on 23 April 1985 is quashed.

2. The maintenance order of the Local Court dated 14 July 1978 in relation to the child J is discharged as from 5 December 1979 owing to the death of the said child.

3. The said maintenance order in relation to the appellant is discharged as from 31 December 1979 owing to the dissolution by native custom of the customary marriage between the appellant and the respondent.

4. The respondent is discharged from the obligation to pay arrears of maintenance which have occurred since 5 December 1979 in respect of the said child and since 31 December 1979 in respect of the appellant.

5. The appellant is entitled to keep all payments received by her for her own maintenance under the said Maintenance Order prior to the date of this order.

6. No Order as to costs.

Orders accordingly

__________________________

Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: Public Solicitor.

[1986] PNGLR 68 - Peter Rarai v Susan Collins