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Bijay v State [1997] FJMC 2; Criminal Case No 0482 of 1997 (6 June 1997)

IN THE MAGISTRATE COURT OF FIJI
AT LABASA

CRIMINAL CASE NO. 482/97
BETWEEN:

DAVENDRA BIJAY

s/o Mohan Lal
Appellant
&

THE STATE

Respondent

Mr A Kohli for Appellant
Ms L Laveti for the Respondent

JUDGMENT

This was a brutal assault by a male person on a female who was his wife. She was hit with a knife handle and received injuries on both upper arms, left hand (lateral aspect) and on the right side of her shoulder. She was also hit on the buttocks which showed red bruising. The injuries were all, in other words serious.

It is clear from the medical report that the assault was not a quick, single blow inflicted in sudden anger but continued for sometime.

I am in complete agreement with the contents of paragraphs 9 & 10 of Davendra Bijay’s affidavit that the Courts, which includes this Court, have always promoted reconciliation in domestic matters and that upon reconciliation proceeding shave been terminated and the accused ordered to pay costs.

I am also in complete agreement with paragraph 12(e). (f) & (h) of the said affidavit that the children are attending school and that he is the sole breadwinner in the family and that he stands to loss his job as a result of which his family will suffer.

I am not only in agreement, but I am most concerned and distressed, I may add, about the contents of paragraphs 7 & 8 of Uttra Kumar’s affidavit that the family is suffering hardship and the children are shattered and that the sentenced could ruin her marriage and that the blame for her husband’s imprisonment is being put solely on her shoulders.

As expected in such family disturbances in the society we live in, the beatings she received at the hands of her husband has become insignificant and has been relegated to the background. It is the welfare of the family that has now taken precedence over all other considerations. The original assault however serous it may have been, has now become a secondary factor it may be more appropriate to say that it has been forgotten.

Such practice has unfortunately become a feature of our way of life. To all intents and purposes, it has become a part of our tradition and this outlook on life in an Indian family in perhaps a direct result of our social and economic environment and however much we may dislike it, it cannot be charged overnight.

However, strong voices have been raised recently in some forums that the public is most dissatisfied with the meagre sentences which are being imposed on offenders guilty of domestic violence and that the magistrates pay scant regard to gender sensitivity is such cases. It is being advocated that custom, tradition or culture should not be used as an excuse or reason for promoting reconciliation in matters of domestic violence and that a husband’s assault on his wife should be treated no different from a man assaulting any other woman in the street or outside a night club. In other words if reconciliation is not proper in the latter case then it is equally improper in the former.

The Magistrates have been told that they should listen to the facts and sentence the offending husband in the same manner as in any other case of assault. They have been told that, and I quote, “where the marriage breaks down is not your concern and that we are not social workers.” It has further been said that domestic violence shall be treated as any other criminal offence and that, again I quote “we are not there to protect the family’. It has been said that the general public, women’s organizations and other NGO’s are unhappy with the lenient sentences or no sentences passed by the Court in matters of domestic violence. As pointed out above, the advocated of such a view are not prepared to accept that bearing in mind the social and economic condition in this country and bearing in mind, may be to a small extent, the tradition and culture in which the bulk of the rural population has been brought up, it is unwise to treat a husband and wife assault in the same manner as if the same person had committed a similar assault outside a night club. They are not prepared to accept that though the latter may be a clear case of no reconciliation and a custodial sentence, considering the social and economic conditions current in our society, such rigorous and indiscriminate application of the law in a husband and wife situation, particularly where there are children and the parities are prepared to reconcile, albeit after some coaxing, will undoubtedly bring about disastrous social and economic consequences. We are, for some reason, told that, that is none of our business.

In the present case, in spite of the fact that this court was fully conscious of the retrograde steps it was taking, in the light of the standard set out above, it had no choice but to impose a custodial sentence of 4 months imprisonment because if anyone had subject a woman to that kind of assault out in the street or outside a night club which resulted in injuries such as those received by Uttra Kumari, a 4 month sentence would be somewhat off the lighter side.

The Court was loath to apply the test set out above, that is, that an assault by a husband on his wife must be treated as an assault on anyone else and reconciliation, marriage breakdown or effect on children should not be taken into consideration by the Magistrate’s because they are not there to protect the family neither are they social workers.

This test was advocated by brains better than mine and I applied that the test and sentenced the applicant to 4 months imprisonment. I feel it will not be proper for me to depart from it although I am clearly of the view that in a husband and wife situation greater emphasis must be put on the promotion of reconciliation, particularly where there are young children, than in cases involving two or more strangers. I am firmly of the view that custodial sentence, if it threatens a breakdown of the marriage, or if there is a likelihood that such a move may adversely affect the welfare of the family, should be avoided.

Unfortunately, the Magistrates are advised that it is wrong to adopt such an attitude and what they should do is to regard the offending husband in the same manner as if the victim of assault was not his wife but a stranger and sentence him accordingly. As already mentioned, if the victim in a case such as this was a stranger, the assailant would have certainly gave to prison.

I sincerely trust that this matter will not stop here and presently we may receive some guidelines as to whether cases of domestic violence are to be treated as any other case of violence irrespective of the effect it will have on the social and economic welfare of the other members of the family, or whether the promotion of reconciliation is to feature more prominently and should be given more emphasis in a husband and wife situation than in other cases of violence which do not adversely affect the victim, his or her children and other members of the family.

I am afraid that with a great deal of reluctance, I must disallow this application.

Anirudh Kuvar
RESIDENT MAGISTRATE

6/6/97