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Gawi v Gawi [1998] PNGLR 463 (22 July 1997)

[1998] PNGLR 463

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN GAWI AND DIANA APES

V

MARY GAWI

KIMBE: WOODS J
16 and 22 July 1997

Facts

The appellants appeal from a District Court order where they have been ordered by the court to pay compensation to the respondent for continuing acts of adultery under the Adultery and Enticement Act 1988. Previously they have been taken to court by the respondent and ordered to pay compensation.

The question before the court was: are continuing acts of adultery between the same parties actionable?

Held

1. Continuing acts of adultery between the same parties, by implication of s 4(2) of the Adultery and Enticement Act are not actionable.
   
2. If the marriage has completely broken down then that is the end of the matter and following one order of compensation under the Act then it is up to the parties to take appropriate proceedings under the Matrimonial Causes Act.
   

Counsel

R Habuka, for the appellant.

22 July 1997

WOODS J. This is an appeal against an order of the District Court at Kimbe on the 9th April 1997 on a complaint under the Adultery and Enticement Act 1988. A complaint had been laid in March 1996 that since 23rd February 1996 the defendants had committed adultery and continued to do so knowing very well that the first defendant is married to the complainant.

The magistrate found the complaint proved and ordered compensation against the defendants in favour of the plaintiff.

The defendants have appealed against the order and the ground of appeal is that the Magistrate had erred as the Court had earlier made a similar order for the same matter and therefore the complaint was res judicata.

It appears that there had been previous proceedings between the same parties for this adulterous relationship and these proceedings had resulted in mediation on 23rd February 1996 and orders for the payment of compensation by the same two defendants to the plaintiff.

It is noted that this new complaint in March 1996 refers to adultery having taken place since the 23rd February 1996. It would therefore appear that in spite of the mediation that took place in February 1996 the adulterous relationship between the defendants was still continuing and the marriage had completely broken down. The question therefore is whether an aggrieved partner in such marriage situation can continue to bring fresh complaints for the same and continuing adulterous relationship. Section 4(2) of the Adultery and Enticement Act states that for the purposes of an action under this section, all acts of adultery committed between the same persons before the commencement of the action shall be regarded as one act of adultery. Does this therefore mean that it is not open to a party to bring subsequent actions for further acts of adultery following one proceeding? I think that this must be the situation because the section clearly suggests that all acts of adultery between the same persons are to be deemed to be the one act. It cannot be intended that where there is a continuous adulterous relationship there can be a repetition of actions. Therefore all the acts of adultery committed after 23rd February are to be seen as including the acts of adultery before 23rd February and to be read as the one act of adultery. There has been action taken under Section 4 of the Act for these acts of adultery namely the mediation that resulted in the order of 23rd February. Therefore there can be no repetition of this action. If the marriage has completely broken down then that is the end of the matter and following one order of compensation under the Act then it is up to the parties to take appropriate proceedings under the Matrimonial Causes Act. A Court cannot force a marriage to continue if the parties or one of them does not want it.

Therefore by virtue of Section 4, the fresh complaint of March 1996 could not be pursued because the problem between the parties was dealt with in February 1996.

I uphold the appeal and quash the orders of the Magistrate. It would appear to be a matter for the parties to consider appropriate proceedings under the Matrimonial Causes Act.

Lawyer for the appellant: Habuka Lawyers.