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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
DVRO Case No. 65/2012
SABILA DEVI
[APPLICANT]
-v-
RAVINDRA JEET MAHARAJ
[RESPONDENT]
The Applicant appeared in person
Ms. Miliana Tarai for the Respondent as Duty Solicitor of the Legal Aid Commission of Fiji
Ruling on Domestic Violence Interim Orders
1] On 08th February 2012, the applicant filed this application seeking interim orders for non molestation and non contact against the Respondent, her brother in law under the section 19 of Domestic Violence Decree 2009 (DVD).
2] The application was supported in open court, being satisfied the court issued following interim orders.
3] Interim orders were to be carried out through Nakasi Police Station. The Respondent was duly served and he obliged to the interim orders. He then through Legal Aid Commission filed his response to these interim orders.
4] In his AFFIDAVIT IN RESPONSE he says that; he denies the allegations made by the Applicants in their application (Domestic Violence Restraining Order Form 1) .The Applicant is his sister in law as she was married to his younger brother namely Mahendra. He states that he has never physically, emotionally or verbally abused the Applicant or her daughters at any time as they are his family and he knows of the consequences. He states that in August 2011, his mother had passed away and his will was read out whereby she had given the house to his elder brother who resides in Canada, namely Sabendra. That Sabendra had allowed the Applicant and her daughters to stay in his later mother's house as the Applicant's husband is currently serving a term in prison. he further states that on 30th January 2012, he had noticed an unknown boy residing in his mother's house and upon enquiring with his nephew, he came to know that the Applicant had been allowing this boy to reside in the house. He was worried for the Applicant's safety as well as those of her daughters which led him to sending a text message to his elder brother in Canada as he is the owner of the house. He informed him of what was happening. That on that same afternoon, the Applicant came to him and started swearing at him while he was at his garage and she insinuated that he was after her daughters. However, the respondent did not swear at her nor did he threatened her or abuse her in any way.
5] The Respondent says that he has vacated garage since the day he was served with the orders dated 7th February 2012 and he has been following the issued orders. The Respondent says that he has also been facing a lot of difficulties and hardships due to the issued orders as all of his sign-writing tools are in the garage at 56 Dilo Place, Nakasi and since he respects the law, he has never attempted to retrieve these tools.
6] He prays that the Court dismiss the Interim Orders to vacate the house and stay away 100 meters from the Applicant and protected persons.
7] The case was heard on 16th August 2012 and 24th October 2012. The Applicant gave evidence on oath. She said when her mother in law passed away in August 2011; the Respondent was in New Zealand. When he came he was creating problems. The owner of the property, elder brother in law has assigned her as caretaker of the property. She filed AEX-1 to prove that there the caretaker of the property. It proves that Sabendra Jeet Maharaj has authorized them be as caretakers. The Applicant filed AEX-2, a letter sent by the said owner of the property. In that letter, writer stresses to the court that "Mr. Ravindra Jeet Maharaj is not only a treat to Shabila Devi and her 3 daughters; he is an extremely violent person and poses a great danger to my family". The Aoplicant said that the Respondent addicted to drugs and he harasses her as her husband is in prison. She got 3 daughters aged 16, 15 and 9 years. He said the Respondent comes with his friends and takes drugs and Alcohol and she is afraid of safety and well being of her and her daughters. She prayed interim orders be made permanent.
8] The Applicant was cross examined at length by the Respondent's counsel. The Respondent objected to the AEX1 and AEX-2 as the applicant is not the author of the documents. I must consider this objection now itself. The Section 48 clearly illustrates the rules of evidence are as follows;
"48.-(1) Subject to subsection (2), in any proceedings under this Decree the Court may receive any evidence that it thinks fit, whether or not it is otherwise admissible in a court of law.
(2) Subsection (1) does not apply to criminal proceedings for the offence under section 77 of breach of a domestic violence restraining order."
9] Thus, unlike other court proceedings, the court can admit any evidence that it thinks fit. In this case these letters were written by the owner of the premises and the elder brother of the Respondent who knows the Respondent behavior and the Applicant's Plight. I therefore admit these letters as evidence. I must say that proper procedure to object a document is when the document being marked as a document and not at the cross examination. Because the contains of those letters have been already led as evidence and if there is any objection it should be done before the document being marked and tendered as evidence. In civil and criminal cases these thing being ironed out at pre trial conference but in Domestic Violence hearing rather rule of evidence are relaxed and the court considers the safety and well being of the protected person. But this rule does apply to breach of Domestic Violence Restraining Order Under section 77.
10] The Applicant in the cross examination said that he saw that the Respondent smoking Marijuana (Indian hemp) and he is addicted to drugs and he drinks with boys. The Applicant said she reported these matters to the police. The applicant filed AEX-3, the certificate of Nakasi Police station. It proves that she reported these matters to the police on 23rd 27th and 28th of January 2012 and Nakasi Reports Numbers are 388/2012, 439/2012 and 469/2012. The Respondent in his response said that only once he had been called to the police. But it shows there were continuous incidents occurred to the applicant. The applicant said when her mother in law was alive, she did not have any problems. The Applicant said the owner of the property, author of the AEX-1 and 2 came for mother's funeral and he saw the respondent was creating problems. She said before the bother in law's funeral the respondent started creating problems. The respondent suggested that non molestation order to remain and non contact order to vacate. But the applicant said the respondent has not changed and he will create problems if he comes to her compound. She said it is hard to go to the police if every time he creates a problem. The applicant said that the boy who respondent alleged is her nephew and he is studying with her daughter. The Applicant said that "He is using abusive language and passing sexual remarks on me".
11] Then, the Applicant called Avish Maharaj. The witness said that he saw and heard that the respondent was swearing "bitch" and "prostitutes," "One day you will end up nowhere" to the Applicant.
12] In the cross examination, the witness said that the applicant is her auntie and he has been living that house since birth. The applicant has not allowed one "Sagar "to stay in the house and Sabila is the caretaker of the house.
13] The Respondent also gave sworn evidence. He said that the applicant is her sister in law and he had 4 brothers one has passed away, one is in Canada and one is in prison he is Mahendra Jeet Maharaj. The Respondent said before his mother's death, he was in New Zealand. When she passed away, he came to Fiji and stayed in his mother's house. The applicant is also staying with him and house is under public trustee now. On 0108-2011 his mother passed away and when DVRO served he moved to his girl friend's house. He said because of this he cannot perform her mother's six month's rituals and the son is suppose to do that. The Respondent admitted that before he had problems with his brother's wife. He informed Nakasi police that he is going to do rituals and he tried to erect a shed, then the applicant did not like his girl friend to be present. The respondent said he did not do dirty gossiping about Sabila and her 3 daughters. But he inquired when one boy was found in the house. The Respondent said he does not drink alcohols or take drugs. He is a sign writer and also driving a taxi. The Respondent REX-1 and it confirmed that they had a fighting in progress at Dilo Street and the Applicant was warned to keep peace. The Respondent said that he needs access to the garage and his work place and interim orders be vacated.
14] In the cross examination the Respondent said when he was in New Zealand the applicant lady was looking his mother, taking very good care.
15] In the hearing the Applicant wanted another witness to be called after the Respondent's case. As I mentioned in my judgment, the rule of evidence are liberal and the respondent have chance to impeach the witness, I allowed that witness be called. She then called Ashnil Jeet Maharaj. This witness elaborated what happened on 17th August 2011. The both had an argument and the respondent said "I will rape you if I stay in the house". He witnessed this incident. The witness said the Respondent is his uncle, father's brother. The witness said that respondent was inviting applicant to stay husband and wife. The applicant refused and said I have a husband, if husband comes what will happen? The witness said when grandmother was alive they stay together peacefully without the respondent, the respondent created the problem.
16] In Cross examination the witness said he was staying in the house since birth. The respondent's garage is situated beside house. The witness was staying with the grandma after grandma's death the applicant Sabila is the caretaker of the house. At this moment, the Last Will tendered as AEX-4 by consent of the parties. The witness admitted due to this interim orders that the accused precluded staying in the property although his name in the Last will.
17] The Respondent called another two witnesses. They are Aisake Finau and Penisai Qalitiono. Aisake said that he went to erect a shed and he heard the applicant abused the Respondent saying" Bastard", "Putting him to jail". He said the Ravindra did not say anything to Sabila. He had never seen that Ravindra abusing or assaulting Sabila or her daughters. In cross examination this witness said that he cannot understand the Hindi, but Sabila was swearing at Ravindra in Hinidi. Penisai saud on that day 28-0102012, they were erecting a shed and parties had family disputes. Then, Sabila abused the Respondent saying "bastard", "Fuck you" and "Maichod-mother fucker". This witness said one of Sabila's nephew swore at them, but this was not told by other witness and it seems that they had discussed the evidence before and concocted a story.
18] On the Application of the Respondent Counsel, the Respondent was called to give sworn evidence with the permission of court. He said that he did not make any indecent proposal to the Applicant. When Sabila was chasing, the witness told that "Somehow chase him out".
19] The parties have made closing submission which I have carefully considered. The Applicant is the Respondent's sister in law and her husband is currently in Prison The applicant is alone and she prays to this Court to take into consideration the safety and wellbeing of her family in absence of her husband. It seems that the respondent's elder brother who is the owner of the property also doesn't want the respondent to enter his property and for the respondent to move his garage. This was proved by AEX-1 and 2.
20] On the other hand the Respondent claim is based on AEX-4. Last will of the mother. Before the hearing commenced, the Respondent informed the Court of his willingness to have Standard Non-Molestation Orders made permanent however the Applicant did not agree to this proposal and she informed the Court that she wants the Respondent to move out of the property.
21] The Domestic Violence is a law for protect vulnerable who are in domestic relationship. To get a domestic violence, there should be a violence or imminent violence and domestic relationship. Section 3(1) gives the Definition of Domestic Violence, that is;
"3. (1) "Domestic Violence" in relation to any person means violence against that person ("the victim") committed, directed or undertaken by a person ("The perpetrator") with whom the victim is, or has been, in a family or domestic relationship.
(2) In relation to subsection (1), "violence" means any of the following:
(a) Physically injury or threatening physical injury'
(b) Sexual abuse or threatened sexual abuse;
(c) Damaging or threatening to damage property of a victim;
(d) Threatening or intimidating or harassing;
(e) Persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner;
(f) Causing the victim apprehension or fear by;
(g) Following the victim; or
(h) Loitering outside a workplace or other place frequented by the victim, or
(i) Entering or interfering with a home or place occupied by the victim, or
(j) Interfering with property of the victim; or
(k) Keeping the victim under surveillance;
(l) Causing or allowing a child to see or hear any of the violence referred to in paragraphs (a) to (f) inclusive;
(m) Causing another person to do any of the acts referred to in paragraphs (a) to (g) inclusive towards the victim."
22] The Decree also gives Grounds for making a domestic violence restraining order in section 23. Those are;
"23. –(1) A Court may make a domestic violence restraining order for the safety and wellbeing of a person if satisfied that the person is, or has been, in a family or domestic relationship with the Respondent, and-
(a) The Respondent has committed, is committing, or is likely to commit domestic violence against that person or against another person relevant to the application, and
(b) The making of the order is necessary for the safety and wellbeing of the person or another person relevant to the application, or both."
23] Unlike Criminal cases, the Standard of Proof is balance of probabilities. Section 46 confirms it. It says;
"46.-(1) Subject to subsection (2), every question of fact arising in any proceedings under this Decree must be decided on the balance of probabilities.
(2) Subsection (1) does not apply to criminal proceedings for the offence under section 77 of breach of a domestic violence restraining order."
24] In Miller v. Minister of Pensions 1947 2 All E.R. 372 Lord Denning said the standard of proof regarding balance of probabilities as;
"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."
25] The Respondent objected that two letters of the owner of the property should be disregarded. In this matter the court minds those letters are not subjected to cross examination and the applicant is not the author of the letters, I have earlier given reasons for admissibility of those letters and I need not reiterate it. The objection is refused and I only consider the contains of the letters not beyond that. I take evidence in whole. The problem created when the Respondent returned from New Zealand for his mother's funeral. The respondent was not staying at home and when he gets to know that he has a right to stay in the house by last will the problem cropped up. It is seen that there was no physical abuse but it is patent there was verbal abuse. The circumstance proof the applicant is a lonely woman with three daughters and her nephews are residing with them. There were police reports against the both parties and witnesses of the both parties gave evidence and proved that there were threat and imminent threat to each other. This situation is persisting. Before demise of the mother the Respondent nowhere near to the applicant's house. When he approached to get his right this incident happened. Therefore, he can stay away and fight his rights. AEX-4 the Respondent has only right to live that is only a servitude not a legal ownership to the property. In AEX-4 paragraph "c" says;
"That the land is not for sale or held up for any other business dealings. My other two sons Ravendra Jeet Maharaj( The Respondent in this case), Mahendra Jeet Maharaj and grandson Ashneel Jeet Maharaj dob 1990 son of Khendra Jeet Maharaj9deceased), to live peaceful there."
26] Thus the Respondent should live peaceful and the Applicant's AEX-3 and the Respondent REX-1 prove that there were breaches of peace. To issue a domestic violence a single act of violence is enough if the court satisfied. The Respondent is ready to accept non molestation order but he is seeking the court to vacate non contact order. But it seems that the Applicant is alone and all are working or school going. If the court allows the Respondent to come and work in adjacent garage it would be treat to the applicant. There are minor discrepancies, but the applicant's case is not collapsed by those and important thing to be decided whether there was violence or imminent violence which she proved clearly. I am satisfied the safety and well being of the applicant and her daughter are in peril. I hold the Applicant proved her case in balance of probability. I must say this court is not deciding the rights of the title and parties to resolve these disputes in proper forum. Until, I make following orders;
a) All interim DVR orders against the Respondent are hereby made permanent.
b) Parties to resolve their civil disputes in proper forum.
c) No cost in this application.
Orders accordingly,
On this date 14th February 2013 at Nasinu, Fiji Islands
Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu
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