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Gugu, The State v [1981] PNGLR 5 (18 February 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 5 - The State v Boas Gugu 

[1981] PNGLR 5

N285

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

BOAS GUGU

Rabaul

Andrew J

17-18 February 1981

CRIMINAL LAW - Particular offences - Bigamy - When offence established - Valid “Christian marriage” - Subsequent customary marriage to another - Criminal Code s. 371 - Marriage Act 1963 s. 55, s. 63.

The offence of bigamy created by both s. 371 of the Criminal Code and s. 63 of the Marriage Act 1963, may be established by proving a valid first marriage solemnized under Pt. IV of the Marriage Act followed by a form or ceremony with another person “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”.

Trial.

This was a trial on a charge of bigamy.

Counsel:

T. D. Kitchin, for the State.

S. T. Tedor, for the accused.

Cur. adv. vult.

18 February 1981

ANDREW J:  The accused is charged upon indictment that he, between October and November 1978, in Papua New Guinea, being then lawfully married to one Delilah Gugu, went through a form of ceremony of marriage with one Rachael Waninara during the life of the said Delilah Gugu.

The offence of bigamy is created both by s. 63 of the Marriage Act 1963 and s. 371 of the Criminal Code. In the present case the indictment is laid under the Criminal Code.

It is not in dispute that the accused married Delilah Gugu on 24th July, 1971, and that the marriage was solemnized under the provisions of Pt. IV of the Marriage Act 1963 and was clearly a Christian monogamous marriage.

It is alleged by the State that the accused subsequently went through a form of ceremony of marriage with Rachael Waninara, this being a native customary marriage as defined by Pt. V (s. 55) of the Marriage Act. The accused denies that any such marriage took place.

For convenience I shall refer to the first marriage as a “Christian” one and the alleged second marriage as “customary”.

Counsel are in agreement that a “Christian” marriage followed by a “customary” one to another person would, if proved, amount in law to an offence of bigamy. I think that the matter is not free from difficulty for clearly the Marriage Act recognizes potentially polygamous marriage. In the reverse situation, that is a potentially polygamous marriage followed by a Christian monogamous marriage, there is authority that the first marriage is not a valid first marriage for the purpose of founding a prosecution for bigamy: R. v. Sarwan Singh[i]¹. However that authority was overruled to the extent that for the purposes of the criminal law the relevant time for determining the question whether the accused was within the meaning of the words “being married” was the time of the alleged bigamous ceremony of marriage and not the time of contracting the marriage. Thus where a potentially polygamous marriage still subsisted but had become monogamous in character at the time of the alleged bigamous ceremony of marriage, the accused was held to have been correctly convicted of bigamy: R. v. Sagoo[ii]².

According to s. 55(2) of the Marriage Act, a native customary marriage is as valid and effectual as a marriage under Pt. IV of the Act. But by s. 55(1) of the Act a native who is a party to a subsisting marriage under Pt. IV may not enter into a native customary marriage. In my view a valid first marriage solemnized under Pt. IV of the Act followed by a native customary marriage to another person would, if proved, amount to the offence of bigamy. Whether or not that is desirable is not for me to say. There may well be a feeling in the community that where the law recognizes polygamous and potentially polygamous marriages by virtue of the recognition of the validity of native customary marriages then an offence of bigamy is hardly appropriate to the circumstances of the country.

The validity of the second marriage does not affect the question. It is the appearing to contract a second marriage, and the going through the ceremony which constitutes the crime of bigamy, otherwise it could never exist in the ordinary cases, as a previous marriage always renders null and void a marriage that is celebrated afterwards by either of the parties during the lifetime of the other. See R. v. Robinson[iii]³.

Thus in our jurisdiction where there is a valid first “Christian” marriage a subsequent native customary marriage to another is expressly forbidden by s. 55(1) of the Act. By s. 371 of the Criminal Code the offence of bigamy is established when a married person goes through a form or ceremony of marriage with another person. So as a native customary marriage is a recognized and valid form of marriage then if a person married under Pt. IV of the Act purports to go through a form or ceremony in the words of s. 55(1) of the Act, “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”, that would clearly satisfy all the elements of s. 371 of the Criminal Code and amount to bigamy.

It is highly desirable that the criminal law and the matrimonial or family law should be the same in the recognition of status created by a marriage.

(His Honour then made findings that as there was insufficient evidence of the prevailing customs of the area pertaining to marriage he could not be satisfied beyond reasonable doubt that the accused had appeared to contract a form of marriage or gone through a ceremony which would constitute the crime of bigamy. The accused person was found not guilty.)

Verdict of not guilty.

Solicitor for the State: L. L. Gavara-Nanu, Acting Public Prosecutor.

Solicitor for the accused: Warner Shand Wilson & Associates.