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Vurr v Vurr [1997] PNGLR 2; [1997] PNGLR 630 (6 September 1996)

[1997] PNGLR 630

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PAULA LAS VURR

V

TEDDY VURR

MOUNT HAGEN: INJIA J
12 July, 23, 29 August, 6 September 1996

Facts

The plaintiff and her husband, the defendant, were married under custom. However, subsequently, the plaintiff filed an originating summons seeking, inter alia, a declaration that the customary marriage be dissolved. The basis of the plaintiff’s action was that the defendant was guilty of infidelity towards her and his marriage to several other wives. The relevant issue was whether the National Court has jurisdiction to dissolve a customary marriage.

Held

Schedule 2.1 of the Constitution does not confer jurisdiction on the National Court in an action seeking a declaration that a customary marriage be or was dissolved. Pursuant to s 16 of the Local Courts Act (Ch. No. 41), the appropriate Court is the Local Court which has jurisdiction to inquire into an alleged dissolution of a customary marriage and upon being satisfied that the marriage has been so dissolved in accordance with the relevant custom, grant a certificate of dissolution of that customary marriage.

Counsel

Paula Las Vurr, in person.
No appearance for or of the defendant.

6 September 1996

INJIA J. This is a claim by the plaintiff, in person against her husband, the defendant, for the following orders:

1. A declaration that the customary marriage be dissolved.
   
2. An order for the settlement of properties.
   
3. An order that the house on Section 308 Lot 9 at Hohola, Port Moresby, National Capital District be awarded to the plaintiff:
   

(a) And the property in defendant’s name be transferred to the plaintiff; or

(b) Property be transferred to the children with their guardian.

4. An order that compensation of K20,000.00 being for loss of companionship and loss of consummation, and breach of customary obligations, loss of customary right to compensation.
   
5. An order that each party bear their own costs.
   
6. Such further or other orders as this Honourable Court see fit.
   

I granted leave to the plaintiff to proceed with the matter ex-parte, upon her application, after I satisfied myself that the defendant and/or his lawyers were served with the originating summons and all the other accompanying documents and were aware of these proceedings coming up for hearing on 23 and 29 August 1996 but they made no effort to attend the proceedings.

I heard the substantive matter on 29 August 1996. The plaintiff relied on her affidavit sworn on 25 April 1996 and filed on 8 May 1996. Being unfamiliar with the court procedures, she chose to rely on her affidavit; she chose not to say anything further and closed her case. No submissions were made. I did not ask any questions on her affidavit. I adjourned the matter to today for decision.

The plaintiff’s primary relief is for a declaration, by this Court, that their customary marriage entered into in 1982 be dissolved. The other orders sought are consequent upon an order for dissolution of the customary marriage.

The plaintiff in her affidavit has given an account of their marriage life, going through difficult times, mainly because of the defendant’s infidelity towards her and his marriage to several more wives. As a result, the defendant failed to look after her and her children, failure to live with her, etc. The plaintiff considers that her customary marriage to the defendant has come to an end in accordance with the custom of the Melpa people of Western Highlands to which they belong and is asking this court for a declaration that the marriage is dissolved.

Whilst I agree with the plaintiff that she is entitled to come before the National Court as a court of unlimited jurisdiction to seek redress, and more particularly, under Sch. 2.1 of the Constitution which empowers this Court to deal with actions arising out of local custom, I do not think this is an appropriate case for the exercise of the court’s jurisdiction under Sch. 2.1 because there is a statutory law which specifically vests the jurisdiction to deal with the dissolution of customary marriages in another court, namely the Local Court. Pursuant to s 16 of the Local Courts Act (Ch. No. 41), the Local Court has jurisdiction to deal with an application by a married person to issue a certificate of dissolution of a customary marriage. Section 16 provides:

"16. Dissolution of customary marriage.

(1) A Local Court shall, on application by a person married by custom, and on being satisfied that that marriage has been dissolved in accordance with custom, grant to him a certificate that that marriage has been so dissolved.

(2) Subject to Part VI, a certificate under Subsection (1) is conclusive evidence that the marriage has been dissolved."

Section 16 confers a judicial discretion on the Local Court to issue a certificate of dissolution of a customary marriage and it is exercised on proper grounds. As to what use is made of the certificate of dissolution by the applicant is another matter. She may take up the matter with the Village Court, which has jurisdiction to deal with all actions arising out of local custom, and sue the other party for compensation for causing the dissolution of the customary marriage and/or for a decision over the properties owned by the family. She may bring similar proceedings in the Local Court or the District Court, both Courts having jurisdiction to deal with actions arising out of local custom. Further, she may even return to this court, the National Court, and pursue the other consequential relief sought in paras. 2-6 of the originating summons.

For the above reasons, I refer this matter to the Local Court in Mount Hagen to determine the issue of dissolution of the subject customary marriage. If the Local Court, after determining that the customary marriage has dissolved in accordance with the Melpa custom, issues a certificate of dissolution, the plaintiff may choose to come back to this court and apply for the consequential orders sought in paragraph 2-5 of the originating summons. If the plaintiff chooses to return to this court, this court will deal with those matters in the usual way.

The orders of this court shall be:

1. The matter of dissolution of customary marriage between the parties claimed in para. 1 of the originating summons is referred to the Local Court at Mount Hagen for determination under s 16 of the Local Courts Act Ch. No. 41.
   
2. The relief claimed in para. 2, 3, 4 and 5 of the originating summons are adjourned sine die until the issue of dissolution of the subject customary marriage is determined by the Local Court.
   
3. The plaintiff is granted liberty to apply to this court for a determination of the relief claimed in para. 2, 3, 4 and 5 of the originating summons upon obtaining a certificate of dissolution of the subject customary marriage.
   

Lawyer for the plaintiff: Plaintiff in person.
Lawyer for the defendant: Paulus M Dowa Lawyers.