N1282

PAPUA NEW GUINEA
[In The National Court of Justice]

APPEAL 130 OF 1994

ROBERT KUNJIL
Appellant

V

THERESIA MONPI
Defendant

Mount Hagen: Woods J.
21 December 1994, 6 January 1995

Maintenance of wives and children - Constructive desertion - Taking of a new wife is grounds for the first wife to leave - Statutory marriage and customary marriage status.

Cases cited:
Zerike v Kagl [1994] Unreported.

P. Peraki for the Appellant
B. Aipe for the Respondent

6 January 1995

WOODS, J: This is an appeal against an Order of the District Court at Mount Hagen in maintenance proceedings whereby the District Court ordered that the husband Robert Kunjil pay maintenance to the wife Theresia Monpi for herself and their 5 children. 

The Grounds of Appeal are firstly that the Magistrate erred in finding the appellant liable as the evidence before the Court did not support the finding that the Appellant had deserted the respondent and children rather that the wife had left the home with the children without the consent of the husband. In the alternative it is submitted that the order for maintenance payments was excessive in the circumstances. 

The parties were married in 1973 through custom with full brideprice as well as in church with a marriage certificate. The church marriage with the Marriage Certificate means that the marriage was a statutory marriage under the Marriage Act. The couple had five children. Then problems seemed to arise in 1989 when the husband got what he called a new wife. I say called a new wife because in law he could not have a second wife as this would be committing the criminal offence of bigamy by taking a second wife while the statutory Marriage Act marriage was still subsisting. 

The evidence is that the bringing of the so-called second wife into the home caused difficulties for the Respondent and she was forced to leave the home. This is not only from the evidence of the Respondent/Complainant but also is supported by the Appellant’s own witness Peter Kigi a village court magistrate who said "the problem started after the defendant got a new wife". 

What is clear is that nobody realised the legal consequences of a Statutory marriage which means that any later marriage whether statutory or customary is committing the offence of bigamy and is also adultery. So once a husband commits bigamy this must be a very good reason for the real wife to be forced to leave the matrimonial home. And this is what the magistrate found, she found that by taking a "new wife" into the house and thereby committing adultery the real wife was forced to leave and this is in legal terms constructive desertion by the husband. The Magistrate found in her judgement:

"The essence of the complaint under the Deserted Wives and Children Act is the unjustified conduct of the husband or father. Desertion may be actual or constructive, that is if the wife is compelled to leave by the husband’s violence or other improper behaviour, she will be deemed to have been deserted without reasonable cause. "

The magistrate then found: "in view of the defendant’s behaviour it was not reasonable to expect the wife to reside with him. I find it constructive desertion. "

The magistrate did overlook the criminal status of bigamy which makes the husband’s situation even worse. 

I find the Magistrate’s findings are the correct statement of the law as it is or should be in PNG. Even allowing for the customary practice of polygamy which does not in fact apply here as there is a statutory marriage under the Marriage Act there is no evidence that even custom says that a wife must be forced to live in the same house as a new or other wife. For example see Injia J in Zerike V Kagl [1994] Unreported" "There is no way she could have moved in with the defendant’s house with his wife and children living in the same house."

I find no error in the Magistrate’s reasoning and ruling. Any man who takes a so called new wife into the same house as the first wife could be creating an unreasonable situation for the other wife. And it is not reasonable to expect the wife to continue to reside, and if she is finally forced to leave that is constructive desertion by the husband. 

On the alternative ground of Appeal of the excessive nature of the maintenance payments ordered, the Appellant is in a wage employment and I find that the amounts ordered to be paid are not unreasonable in the circumstances.

I dismiss the Appeal.

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Lawyer for the Appellant: Peraki Lawyers
Lawyer for the Respondent: Public Solicitor