N958

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RE THESIA MAIP

AND SECTION 42(5) OF THE CONSTITUTION

Mount Hagen
Woods J

22 February 1991
27 February 1991

FAMILY LAW - Marriage - Proof of - Whether de facto relationship recognised by custom.

CONSTITUTIONAL LAW - Rights of all persons - Liberty of person - Imprisonment for failure to pay compensation for breakdown of marriage - Sufficiency of proof of marriage - No proof that de facto relationship recognised by custom - Imprisonment unlawful - Constitution, s 42(5).

INFERIOR COURTS - Village courts - Jurisdiction - Power to order imprisonment - Breach of customary law as to marriage - Need for marriage to be proved - No proof that de facto relationship recognised by custom - Imprisonment unlawful - Constitution, s 42(5).

Held

(1) Where the existence of a marriage is in issue in any proceedings great care must be taken to ensure that the marriage is legally supported either by the relevant traditional custom or under the Marriage Act (Ch No 280). Whilst custom is developing, it does not yet recognise a casual non-customary (de facto) relationship as a formal marriage.

(2) Accordingly, the female partner of a de facto relationship who was imprisoned by her village court for failure to pay compensation for breakdown of "marriage" to a male from another village had been unlawfully imprisoned and should be discharged under s 42(5) of the Constitution.

Inquiry into Complaint

This was an inquiry into a complaint that a person had been unlawfully detained. The matter came to the attention of the court through the position of Woods J as visiting justice and was dealt with by him under s 42(5) of the Constitution which provides:

"Where a complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:

(a) the National Court or Judge shall inquire into the complaint and order the person concerned to be brought before it or him;

and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit."

Cur adv vult

27 February 1991

WOODS J: This is a complaint that Thesia Maip is unlawfully or unreasonably detained by virtue of an order of the Village Court at Balk. Thesia Maip was taken to the Village Court at Balk on a complaint from Jude Sioni that she was his wife and had left him and gone off with another man. She was ordered to pay K700 compensation which was later reduced to K300 by the local court magistrate when endorsing the order for imprisonment. Upon failure to pay this compensation she was imprisoned for 30 weeks.

The first question is how does this matter come before me. This is a matter under s 42(5) of the Constitution and under that section a judge has an overriding discretion to grant a hearing in cases where people claim to be unlawfully or unreasonably detained. These matters come within the knowledge of judges in their position as a visiting justices. Conflict resolution should not have to rely on strict causes of action and when a judge can see that a problem or right has been ignored or overlooked or restricted and, which in a well-run society would be handled efficiently and expeditiously, but when it cannot be addressed in time and time is running out then the court must act of its own volition. Section 42(5) gives the court the power to so act. Where unsophisticated village people are imprisoned and do not understand the procedures for appeal and have no facilities to make such an appeal and time of imprisonment is running then the court has a responsibility to act quickly and efficiently. For these reasons I have ordered that the applicant be brought before me and I gave notice to the village court officials that this matter was to be heard by me and in due course the village court officials attended at the court to assist me.

Thesia states that she was not properly married to Jude Sioni, that they have met and lived together at Mendi and no bride price had been paid.

The facts are that Jude Sioni comes from Bougainville and they met at Mendi and started living together. He suggested that if she behaved well they would get married in a church. However there was no formal marriage in a church or under the Marriage Act (Ch No 280) nor was there any public ceremony involving bride price in the village. They lived together at Mendi for two years and it appears that at no time did Jude Sioni ever visit Thesia’s village namely Balk village in the Western Highlands. I am sure that he would have spent some money on her and he states in his evidence he did give her some money at different times; however this would be expected when two people are living together. And also perhaps relatives did visit and cost him some money. After living together in Mendi for two years he was apparently arrested and taken to Bougainville for some problems and was locked up for some months. He escaped sometime in 1990 and came to the Western Highlands to Balk Village to look for Thesia. It would appear that this was his first visit to the village. At that time she had taken up with another man so he then took her to the village court.

This problem shows the confusion that seems to be happening in the area of family law at the village level. My initial confusion is how can a man from Bougainville come to a village court in the Western Highlands and seek what is in effect an order for restitution of conjugal rights when there has been no contact at all between him and that village apart from his living with a woman from that village elsewhere in Papua New Guinea. There seems to have been no proper inquiry into what the different customary laws might be and which customary law applied. It was quite clear that there was no marriage according to the traditional customs and practices of that village. The chairman of the village court has confirmed that, according to the traditional custom, if two people marry and they both are from the Highlands then they pay bride price in the village and that is witnessed by the village people. He then stated that in modern times due to the interaction that takes place between the different provinces people from coastal areas are marrying people from the Highlands and are not following the traditional procedures. However, even though they are not following the traditional procedures people today are recognising it as a marriage. Jude Sioni does refer to the parents saying at the time he did return from Bougainville and came looking for Thesia that they were giving approval to the marriage although that could appear to be approval if the marriage does proceed.

In the modern world two people away from their homes living together is quite a common occurrence. Often it is just for the convenience of the time; however sometimes it is a serious trial to see if the two people are seriously interested in getting married. And note here that Jude does say that he had suggested when they were living together in Mendi that if she behaved herself he was considering getting married in a church.

There are three clearly recognisable ways of getting married with all the legal support that implies in this country. First, by the traditional custom as has always been. Secondly, through the church under the Marriage Act and, thirdly, by a civil marriage registrar under the Marriage Act. However, the village court here is finding a development of custom which is recognising a casual non-customary arrangement as a formal marriage. Whilst one must accept that custom must develop in Papua New Guinea to meet the many changes within the country one must be very careful in accepting that such developments in custom are clearly recognised by everyone and that they do not leave the way open for far reaching consequences. We are getting many problems in the field of family law and the law must look carefully always at the implications and consequences of any developments which are not clearly sanctioned by the formal law. In view of the fact that imprisonment can result from the breakdown of marriages at the village court level great care must be taken to ensure that such marriages are properly recognised and comply with either custom or the formal law. In this case there was no true customary arrangement. Jude Sioni had never been to the village before his return from Bougainville. The arrangement seems to be no more than a casual arrangement between Jude and Thesia which suited them both at the time. I do not see anything in the facts which would have enabled Thesia to enforce any maintenance if such was needed so, conversely, how can there be grounds for enforcement of conjugal rights which is in fact what the application to the village court was seeking.

Because of the legal implications and responsibilities that arise in a marriage and if imprisonment can be used as a sanction if there is breakdown, the law cannot recognise anything but a properly arranged or certified marriage whether properly done according to the custom of the place or under the formal law, the Marriage Act. This gives plenty of scope, there can be no room for a one sided view of a casual arrangement which results in the imprisonment of the other party. Such must be contrary to all principles of incarceration and punishment. Jails are for criminals, not as a means of revenge on the breakdown of a living together arrangement which discriminates against the female partner. The thwarted man here had ample opportunity to consider a proper marriage, either by a public ceremony in the village concerned or in the church or registry office under the Marriage Act. He elected not to take any of those procedures.

I find that the village court has unjustly and wrongly assumed a marriage without considering all the aspects and implications. This has resulted in discrimination against, and grave injustice on, the female partner. I order that her imprisonment is unlawful and I order her immediate discharge.

Order for discharge of prisoner

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