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RR v FB [2013] FJMC 176; Domestic Violence 54.2012 (29 April 2013)

IN THE MAGISTRATES COURT AT NASINU
Domestic Violence Case No. 54/2012

BETWEEN:

R R
[Applicant]

AND:

F B
[Respondent]

Ms. Keli Vulimainadave ( Messrs.M.A. Khan Esq) for the Applicant
Mr. Mukesh Nand ( Nands Law) for the Respondent

Ruling on Final Orders

Introduction

(1) This is a Domestic Violence Restraining Order Application by Razia Rehana Hassan (hereafter the "Applicant") seeking orders for non molestation, non contact, use of property, use of weapons and occupancy orders against Farzana Bi Hussein (hereinafter the "Respondent") .

(2) On 30th January 2012 the application was supported by PC Ravi and the applicant was present. The applicant has filed this application in relation to her other two younger sisters who are ages of 18 and 13 years. The applicant is 20 years and she is a student of Fiji National University.

Background

(3) The applicant and the respondents were step sisters. The disputed house belongs to the applicant's father who is deceased now. On 30th January 2012 the application was supported in open court and the court was satisfied. Then, the Respondent was served an interim Domestic Violence Restraining Order restraining the Respondent and her husband; Shaleem Shah particularly from harassing the Applicant and her 2 sisters, for the Respondent to stay 100 meters from the Applicant and her 2 sisters and for the Respondent to vacate the Applicant's house forthwith. In addition the respondents were ordered not to destroy any, remove any household items apart from the respondent's own belongings; the respondents must not use any weapons on the applicant or her sisters.

(4) These interim orders were made under sections 27, (non molestation), 29( non contact), 32( use of possession), 33 ( use of weapons) and 3735 and 36( Occupancy order) of Domestic Violence Decree 2009( Hereinafter Decree).

(5) The Respondent has filed the response. The Respondents filed Affidavit on 20th March 2012 denying the allegations made by the Applicant.

(6) The Applicant then filed an Affidavit in Reply on 19th April 2012 and served the same on the Respondent on 19th April 2012.

(7) There was ruling on objection and the court held it has jurisdiction to grant tenancy or occupancy orders to stop violence and safety and well being of the applicant.

(8) The matter was heard on 09th January 2013 and parties have filed closing submissions. I now consider all.

Evidence

(9) The Applicant Ms. R R H gave on oath. The applicant said they are three sisters and their parents have passed away. On 22-01-2012, one of cousin brothers called her and told he can assist them. So, she went there. When she returned back the respondent sister yielded at her. She said "When I returned my sister yield at me. She told me not to go there. She is Farzana, the Respondent. It was night time. I went there at 8pm, returned 10.30pm. She started threaten me, if I'll go to the place. She said "Kutiya" (bitch- female dog)." The applicant said that people, who are willing to them, were stopped by the Respondent. Even when their parents were alive the same thing happened. The applicant said that the first Respondent was about to hit her. She is her step sister. She said this abuse was many years. She said her father is the owner of the property. The memorandum of Lease tendered as AEX-1. It was 99 years Methodist Church Lease which commenced on 18th March 1985. The Probate was tendered as AEX-3. In that the applicant mother Amina Bi and Sheik Asraf Alihave been appointed as executors and beneficiaries are 1] Razia Rehana Hassan, 2] Zaveen Fazia Hassan and 3] Shagufa Sihfazia Hassan. The Respondent said the validity of the will is being contested in High Court. The Applicant says that she is afraid about them and sought these orders. She said the Respondent has texted her after obtaining the DVROs and showed those messages to the court. Those messages were not threatening ones but request to release the respondent's photos and just wait and watch the case outcome. The Applicant said the second respondent is her brother in law who married to the first respondent. She confirmed the affidavit evidence. She said it is 3 bed room house with two kitchens. But they ate together. The applicant is 10 years older than her and she is safety and well being of her and her sisters. The Applicant said that not only with them but also the respondent fought with her parents. They were in and out and the Applicant produced AEX-3 the written letter of the second respondent which he admitted that he wrote it in open court. It shows that there were problems with their parents.

(10) In cross examination applicant said this has been happening since she was 4 or 5 years. Though the respondents did not abused her at that time they abused her parents. The applicant said on 22nd January 2012, the first respondent yielded at her. The respondent suggested it is for her safety they concerned it. But the applicant denied it as they were on and off left the premises. The applicant admitted that they were paying the rent and the second respondent paid the burial fees for her parents. Those receipts were tendered as Rex-1, 2, 3. She said she has no evidence to prove as the neighbors do not to come to the court. The Respondents suggested there were no treat or abuse and the applicant is lying in the court. But she refused.

(11) The applicant said on 22-01-2012, she called the police. Although the police came to her house, they were not listening to her police tried to reconcile them.

(12) The Applicant then closed her case.

(13) The first respondent gave evidence first. She said the applicant is her half sister. Their mother is same. Before their parents died they were living happily. On 3rd of January she was very sick and one Maulavi came to pray. The Maulavi went and the applicant called one uncle in Nakasi and they came with 4 boys. The Uncle yeided at her what are you are doing to Razia. She said they are doing nothing, but the uncle wanted to hit her husband. She said that she supported their parents and sisters but uncle from Nakasi wanted to them to be removed so they can easily control the applicant and sisters. On 22-01-2012, the applicant had gone with little sister. The witness phoned her and asked where they were. Then, the applicant came around 11pm. When she returned she asked where were you? But she did not yield at her. Then, they went to sleep. Around 2am, two police officers came and inquired. She told the incident. The Police officers warned them to stay peacefully. Thereafter the applicant filed DVRO.

(14) In the cross examination, the first respondent said that on 22nd January, they had dinner together. She did not say "Kutiya" to the applicant and did not confront any filthy words. She knows that a criminal offence. When the applicant got late, she inquired why she was late as they responsible for their protection.

(15) In re examination, she said they are Muslims, they lived happily. After 15 days of mother's death, the applicant obtained the DVRO.

(16) The Second Respondent also gave sworn evidence. The First Respondent is his wife and the Applicant and protected persons are smaller sisters of his wife. He elaborated how he got married to first respondent. He said "I can recall 22nd January. It is a mourning house. We had prayers. ...They came very late. I asked why so late? She said "I am 21, I can take my responsibility. I went to my bed room. I did not yield or abuse the applicant or the sisters. After deaths, I am the senior man at the home. I never denied them foods".

(17) He admitted that he wrote AEX-3 because he did not like his mother in law's interfere in their marriage life.

(18) In the cross examination, He said that there was verbal agreement to pay $25 and it increased to $75 later. He said he never hit mother in law, but they had bit disagreements. He said he did not ever verbally abuse the applicants.

Determination

(19) In this case, this court held it has jurisdiction to grant all interim orders including occupancy orders. The real fact in issue is whether the court should allow the Respondent to go in and stay with the Applicants. When, occupancy order is granted, section 35 of the DVD should be concerned. Section 35 (5) of the Domestic Violence Decree 2009 provides as follows:

• (a) The accommodation needs of the respondent, and any other relevant person, provided that unless there are exceptional circumstances, priority must still be given to the accommodation needs, safety and wellbeing of the protected person and any child in their care or who is ordinarily in their care [Emphasis added]
  

(20) It says there should be exceptional circumstances and priority must still be given to the accommodation needs, safety and wellbeing of the protected person. AEX-3 says there were disputes in the past between applicant's parents and the Respondents. AEX-1 and 2 proves that there is no legal ownership could be claimed by the Respondents, but they say they challenge the last will. But, superficially, no legal ownership can be claimed to the property by the respondent. It proves they sometimes on and off left the place and the respondent stayed outside. From 22nd January 2012 because of DVRO orders they are prevented from entering the property. One can say this is an abuse of DVD provision to eject the person illegally. But the court must look these facts neutrally and should not promote another cause amongst the parties. If court allows them (the Respondents) to be in, it would cause another unnecessary litigation between parties without any legal rights to the respondents.

(21) The Court admits there may be hardships on the respondents but primary concern is to stop violence and safety and well being of the victims of violence. Since the applicant strongly objects that the respondents be in the property the court to look stop violence and imminent violence as there is 13 years and 18 years old left behind with the applicant. In this court the court does not decide the title of the property. That is respondent to solve in proper forum if they challenged. But it is apparent that there is no legal rights that the respondents to stay in the property. If this court allows them to go in, there will be tensions and it cause lots of hardship and lost of inner peace to these young three girls ( Applicant's and protected persons) as they are not getting well with the respondents. The Society can think it is ok to punish or question the applicants by the older sister, when they were at fault, but should be parameter of accepted norms without committing any criminal offence. Furthermore, under provision of DVD physical or mental harassment is not valid. The real issue is to be concerned here is violence or imminent violence. If there is violence or likely to be, the court should stop it. In this case there was single act of violence by the respondents. The respondent denied it. But, the Respondent admitted the Applicant mother was interfering the Respondent's family. In AEX -3 the second Respondent wrote; "As our stay, I don't want your house wife to interfere with my wife at all. And she should not even talk about us with anybody or not even talk to herself as she is doing. And no to disturb my family in any kind of disorderedly behavior". This phrase says they had bitter relationship, though they were mother (now deceased) and daughter (First Respondent). The Applicants are now alone and they are vulnerable as well. DVD is to protect vulnerable. Therefore, I hold there was violence and there is a possibility of imminent violence. I further hold that the applicant proved her case balance of probabilities under section 46(1) of the DVD.

(22) I therefore make following orders;

1. All interim orders are made permanent.
   
2. The Respondent can claim legal rights, if any, in the proper forum.
   

100. Under Section 72(2) of the DVD, you have 28 days to appeal against this order.
     

4. Copy of these final order is given to both parties.
   
5. No costs
   

On 29th April 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu