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Mangeshwar v Registrar of Births, Death and Marriages [2022] FJHC 3; HBM35.2021 (13 January 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBM 35 of 2021

IN THE MATTER of the Dead Certificate of the deceased, SHAHEED ALI formerly of

Australia, died at Lautoka, Fiji, Farmer, Deceased Testate.

A N D

IN THE MATTER of an application pursuant to Order 15 Rule 18 of the High Court Rules of

Fiji, Section 154 (a) of the Family Law Act and Section 2, 6 and 7 of the Succession, Probate and

Administration Act by USHA MANGESHWAR of Velovelo, Natabua, Lautoka beneficiary in

the Estate of SHAHEED ALI deceased of Velovelo, Natabua, Lautoka.

BETWEEN:

USHA MANGESHWAR of Velovelo, Natabua, Lautoka beneficiary in the Estate of

SHAHEED ALI deceased of Velovelo, Natabua, Lautoka.

PLAINTIFF/APPLICANT

AND:

REGISTRAR OF BIRTHS, DEATH AND MARRIAGES

FIRST DEFENDANT/ FIRST RESPONDENT

AND:

ATTORNEY GENERAL OF FIJI

SECOND DEFENDANT/ SECOND RESPONDENT

Appearances: Ms. Nettles J. for the Plaintiff / Applicant
Date of Hearing: 13 December 2021
Date of Ruling: 13 January 2022

R U L I N G

1. Before me is an ex-parte Originating Summons filed by the Applicant on 26 November 2021. The Originating Summons seeks the following orders:
   
   • (1) A Declaration that the Plaintiff /Applicant Usha Mangeshwar of Velovelo, Natabua, Lautoka be declared as the defecto wife of the deceased Shaheed Ali.
   • (2) A Declaration that the Plaintiff /Applicant’s son namely Vikash Chandra be declared as the biological son of the deceased – Shaheed Ali.
   • (3) An Order be granted that the permanent block on the deceased’s Death Certificate be uplifted and/or removed by the Registrar of Births, Deaths and Marriage herewith;
   • (4) An Order that the Death Certificate of the deceased Shaheed Ali died on the 27^th day of August 2021 be released to the Plaintiff/Applicant and/or to Vikash Chandra - the biological son of the deceased.
   • (5) That Costs of this action be cost in cause.
   • (6) That any further and other relief that this Honorable Court deems just and fit.
     
2. It is supported in an Affidavit of Usha Mangeshwar sworn on 26 November 2021.
   
3. Usha deposes that she was in a de-facto relationship with the deceased – Shaheed Ali (“deceased”) since 1984. The deceased died on 27 August 2021. The deceased and Usha had a biological son who was born on 11 September 1985. His name is Vikash Chandra (“ the child”).
   
4. In 1987 (after the coup), the deceased emigrated to Canada. Despite their distance apart, Usha never got married to any other man. She says that she maintained the de-facto relationship with the deceased.
   
5. In 1990, Usha registered the child at the Birth, Death and Marriages Office in order to have a birth certificate issued to enable the child to enroll in a school to begin primary education. However, the child could not be registered under the deceased’s name because the deceased was in Canada at the time and also because Usha and the deceased were never legally married.
   
6. In 2004, one of the deceased’s sisters came to Fiji and contacted Usha and the child. She took our pictures for the deceased to see.
   
7. Since 2004, the deceased was in contact with Usha and the child. He also supported them financially and also contributed financially to the occasion of the child’s marriage in 2008.
   
8. After sometime in Canada, the deceased then migrated to Australia where he stayed for some 32 years or so until he was deported to Fiji in 2019.
   
9. In Australia, the deceased had purchased some property and kept some bank accounts, an insurance cover, and also some superannuation funds.
   
10. As stated, on 19 January 2019, the deceased was deported to Fiji from Australia. Back in Fiji, he stayed with Usha and the child and the child’s wife in Velovelo, Natabua, Lautoka until his demise on 27 August 2021.
    
11. Usha deposes that the child and his wife took care of the deceased whilst he was in Fiji until his demise at Lautoka Hospital. The deceased’s body was actually released to the child together with the Medical Cause of Death Certificate No: 36986, Notification of Death and Lautoka Morgue Services Notification No. 6608.
    
12. The child then authorized Vitogo Muslim Cemetery to conduct the burial of the deceased by a priest registered under Fiji Muslim League.
    
13. Usha deposes that she and the child are now trying to access the deceased Super Annuation and/or Australia Super. The child had emailed Spirit Super on 01 September 2021 enquiring about the process to access the same. They requested for further details which was submitted as per their request.
    
14. The son has sworn a Statutory Declaration on 27 September 2021 to the effect that the deceased is his biological father and forwarded it to Spirit Super on 28 September 2021.
    
15. Spirit Super Administration Claims responded to the email on 04 October 2021 stating that the claim will not progress until they are provided with a certified copy of the deceased’s Death Certificate.
    
16. The child and Usha then attended to obtain the Death Certificate from the Registrar of Births, Deaths and Marriages however have been informed that the Death Certificate of the deceased was released to the deceased’s siblings and now there is a permanent block for the Death Certificate to be released to anyone.
    
17. The child had advised the Registrar of Births, Deaths and Marriages that he was given the Medical Cause of Death Certificate No. 36986, Notification of Death and Lautoka Morgue Services Notification No. 6608 from Lautoka Hospital as a next of kin. He was advised that a Court Order will be required to uplift and /or remove the permanent block in order to obtain the Death Certificate.
    
18. The deceased’s siblings are now in the process of obtaining Letters of Administration in the estate of the deceased in order to access the Super Annuation and/or Australia Super.
    
19. Usha deposes that from the time of the deceased’s arrival in Fiji, the entire Velovelo Temple Road Community witnessed that he was residing with Usha and the child.
    
20. One Ashik Hussain, the owner of the shop in the community at Velovelo Temple Road has witnessed and knows that Shaheed Ali was my defecto hence exhibited herein and marked as annexure “UM8” is his Statutory Declaration.
    
21. Usha prays:
    

That in the above circumstances I herein request this Honorable Court to grant me the Orders prayed for by the Originating Summons filed herein upon which I can apply for Letters of Administration and/or to provide Super Annuation and/or Australia Super the Death Certificate as per the request.

22. I am of the view that this application would be better dealt with if it was filed before the Family Division of the High Court.
    
23. Application dismissed.
    

..................................

Anare Tuilevuka

JUDGE

Lautoka

13 January 2022