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Kuang v Tovivil [1969-70] PNGLR 22 (19 May 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 22 - Daruslia Kuang v Eliab Tovivil

[1969-70] PNGLR 22

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DARUSILA KUANG

V.

ELIAB TOVIVIL

Port Moresby

Frost J

21 March 1969

19 May 1969

HUSBAND AND WIFE - Leaving without means of support - Maintenance of wife and children of native customary marriage - Deserted Wives and Children Ordinance 1951-1961, s. 5[xxv]¹ - Marriage Ordinance 1963, s. 55.[xxvi]² 

Held:

That by virtue of section 55 of the Marriage Ordinance 1963, a native customary marriage, whether potentially polygamous or not, is to be treated as a valid and effectual marriage for the purposes of the Deserted Wives and Children Ordinance 1951-1961.

Accordingly a District Court may hear proceedings for maintenance under the latter Ordinance against a husband who is a party to any native customary marriage.

Cases referred to:

Baindail v. Baindail, [1946] P. 122; Sowa v. Sowa, [1961] P. 70; Ng Ping On v. Ng Choy Fung Kam, [1963] S.R. (N.S.W.) 782; and Bamgbose v. Daniel, [1954] UKPC 24; [1955] A.C. 107.

Appeal from District Court.

On 2nd January, 1969, the District Court at Rabaul dismissed the complaint of Darusila Kuang (the appellant) that Eliab Tovivil (the respondent) had left her, the appellant, and the children of her native customary marriage with the respondent. Against this order the appellant appealed. The grounds on which the complaint was dismissed and the nature of the marriage appear in the reasons for judgment.

Counsel:

Luke, with him Flood, for the appellant.

Kinna, for the respondent.

Cur. adv. vult.

19 May 1969

FROST J:  This is an appeal against an order of the District Court made on 2nd January, 1969, at Rabaul in effect dismissing a complaint made by the appellant under the Deserted Wives and Children Ordinance 1951-1961 that the respondent had left her and the children of her marriage with the respondent without means of support. The learned stipendiary magistrate ruled that “the appellant cannot bring an action under s. 5 of that Ordinance, or s. 29(1) of the District Courts Ordinance 1964”, on the ground that the marriage between the parties, which was a native customary marriage and therefore potentially polygamous could not confer on the appellant any rights under the Ordinance. The learned stipendiary magistrate thus ruled that the Ordinance applied only to monogamous marriages, and further that s. 55 of the Marriage Ordinance 1963 did not operate to render a native customary marriage a valid and effectual one for the purposes of the Deserted Wives and Children Ordinance.

Apart from the provisions of s. 55 (supra), the learned stipendiary magistrate’s ruling was right. The law is correctly stated in Dicey & Morris The Conflict of Laws, 8th ed. (1967), at p. 293, as follows:

“Rule 37        The matrimonial jurisdiction of the court is confined to marriages which are ‘the voluntary union for life of one man and one woman to the exclusion of all others’.

Comment

The parties to a polygamous marriage, even if it is valid by the law of the place of celebration and of each party’s domicile, and even if it is only potentially polygamous, are not entitled to the remedies, the adjudication or the relief of the matrimonial law of England. ‘The reasons are that the powers conferred on the courts for enforcing or dissolving a marriage are not adapted to any form of union between a man and a woman save a monogamous union.’ ” [Citing Baindail v. Baindail[xxvii]³ .]

This rule has been applied to proceedings for maintenance under the English Summary Jurisdiction Acts  (Sowa v. Sowa[xxviii]⁴ ), and the Deserted Wives and Children Act 1901-1960 of New South Wales (upon which the Territory Ordinance is based), Ng Ping On v. Ng Choy Fung Kam[xxix]⁵, and in my opinion, apart from the effect of the Marriage Ordinance, s. 55, would apply to the Territory Ordinance. But there is one qualification. In view of the rights conferred by the Ordinance upon the mother of a child born outside lawful wedlock, I consider that the case of the children of a potentially polygamous marriage is different, and an order may be made for their maintenance: Ng Ping On v. Ng Choy Fung Kam, per Macfarlan J.[xxx]⁶, citing Bamgbose v. Daniel[xxxi]⁷ .

The only question in this appeal is thus the effect of the Marriage Ordinance 1963, s. 55, which is as follows:

“Native Customary Marriages

(1)      Notwithstanding the provisions of this Ordinance or of any other law in force in the Territory or a part of the Territory, a native, other than a native who is a party to a subsisting marriage under Part IV of this Ordinance, may enter, and shall be deemed always to have been capable of entering, into a native customary marriage in accordance with the custom prevailing in the tribe or group of natives to which the parties to the marriage or either of them belong or belongs.

(2)      Subject to this Ordinance, for the purpose of any law in force in the Territory or a part of the Territory, a native customary marriage whether entered into before or after the commencement of this Ordinance, shall be as valid and effectual as a marriage under Part IV of this Ordinance.”

In my opinion having regard to the wide terms of the second paragraph—especially the words “for the purposes of any law in force in the Territory . . .”, the only meaning which the section can be given is that the common law rule of construction which I have referred to is abrogated, and any native customary marriage, whether potentially polygamous or not, is to be treated as a valid and effectual marriage for the purposes of the Deserted Wives and Children Ordinance. Thus the legislature felt it necessary especially to provide in the Matrimonial Causes Ordinance 1963 that nothing in that Ordinance applies to or in relation to a native customary marriage (s. 8). In Australia the rule is not regarded as sacrosanct. It has been abolished for the purposes of the matrimonial causes legislation: Matrimonial Causes (Amendment) Act 1965, s. 3.

As the learned stipendiary magistrate mentioned, there will be difficulties in the application of the provisions of the Ordinance to a native customary marriage. Thus proof of the custom prevailing in the tribe or group of natives to which the parties to the marriage belong will be required, and whether the marriage conformed to that custom. But these practical difficulties cannot prevent the construction which I consider must be placed on s. 55. In this connexion, I would also refer to s. 23 of the Deserted Wives and Children Ordinance which provides that the complainant at the hearing shall produce direct evidence of her marriage to the defendant to the satisfaction of the Court or, if she is unable to produce such direct evidence, shall make and produce an affidavit setting forth the time, place and circumstances of the marriage.

The learned stipendiary magistrate also referred to s. 18 of the Local Courts Ordinance 1963 which provides that the jurisdiction conferred by the Deserted Wives and Children Ordinance 1951-1961 may be exercised by a Local Court in the case of a marriage by native custom or of an ex-nuptial native child. In my opinion this grant of jurisdiction to a Local Court limited to the case of marriages by native custom and an ex-nuptial native child is a clear statement or “parliamentary exposition” by the legislature that the effect of the Marriage Ordinance, s. 55 is to extend the provisions of the Deserted Wives and Children Ordinance to such cases, and thus an aid to construction: Craies on Statute Law, 6th ed. (1963), p. 146.

For these reasons I allow the appeal, set aside the order of the District Court at Rabaul, and remit the case for hearing to that Court.

Appeal allowed. Order of District Court set aside. Complaint remitted for hearing.

Solicitor for the appellant: John F. Ley, Acting Public Solicitor.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

[xxv]The Deserted Wives and Children Ordinance 1951-1961 confers jurisdiction on a District Court to make a maintenance order against a husband or father who leaves his wife or child without means of support.

[xxvi]Infra, at p. 24.

[xxvii] [1946] P. 122, at p. 125.

[xxviii][1961] P. 70.

[xxix][1963] S.R. (N.S.W.) 782.

[xxx][1963] S.R. (N.S.W.), at p. 795.

[xxxi][1954] UKPC 24; [1955] A.C. 107, at p. 119.