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Malu v William [2002] PGDC 44; DC490 (19 December 2002)

DC490

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 68 OF 2002

BETWEEN

William Malu
Complainant

V

Alu William
Defendant

Mt Hagen: Appa - Pm
2002: 15th November, 19th December

JUDGEMENT

Civil jurisdiction – wife not submissive to husband – separation – recovery of debt/bride price

Counsel
W. Malupa for himself
William for herself.

19th December 2002

APPA, P.M. This appears to be a case of recovery of debts/bride price. The original complaint appears to be recovery of ordinary debt but it was evident at trial that it was actually intended for return of bride price because the defendant walked out of her matrimonial home and lives on her own. This would have been an appropriate case for village court but since the case was already registered in the District Court, case proceeded in the exercise of concurrent jurisdiction.

There was no dispute that in 1975 the parties were married by Erave custom with the payment of bride price of K3000.00 cash, 30 shell kina and 5 pigs. They moved to Mt. Hagen and lived happily and they used to go to Lutheran church until in 1996 some family problems started when defendant started to go to another church and got too involved in church activities like staying out all night, returning home very late at night and sleeping in the kitchen, avoid sleeping with the complainant and so on.

The complainant became suspicious of her behaviour. She was not submissive to the complainant. They went before Tarangau village court and a Preventive Order was issued to them to live in peace and for the defendant to submit to her husband. However, the Chairman of Tarangau village court told this court that defendant did not obey the Preventive order and did not change her attitude and she walked out of the house. Complainant said defendant walked out of the matrimonial home in October 2001 and refused to return. The marriage was therefore deemed to have dissolved.

In defence, the defendant said she walked out of the house because complainant used to mistreat her, would stop her from her church activities and would not support her financially. She was forced to leave and would not go back to the family. She leaves behind three sons and two daughters all in the care of the complainant.

The first born son gave evidence that the defendant has not been looking after them for the last six years in areas of cooking, washing clothes and show motherly care and attention. All work was done by their father so he wanted their mother to pay compensation.

The principle for payment of bride price in my view was to strengthen the marriage relationship and for the woman to bear children and submit to the husband. She is expected to behave like a married woman and to perform her part of the obligation to the marriage and the children.

In the present case, it doesn’t seem to be the case. There is sufficient evidence to show that the woman was not submissive to the husband. She did not perform her part of the marriage obligations. It was a case of wife disliking the husband and children. There was no evidence that she was forced to walk out of the matrimonial home. She disobeyed the village court preventive order to change her attitude and return to the family. She didn’t want to return to the family when asked during the trial of the case. All it can be said was that she was at fault. When court asked complainant at trial what happens where in Erave custom a wife refuses to go back to the husband, he said the full bride price is returned as well as compensation for bringing shame for disliking husband in the eyes of others.

After considering the whole evidence, I found that complainant is proved on balance of probabilities.

On quantum, complainant claims debt recovery of K3, 000.00 in cash, five pigs each of K1000.00 in value and K2000.00 for causing shame; total claim is at K10, 000.00 in monetary terms.

As was pointed out earlier, the defendant did not dispute the bride price payment of K3000.00 in cash and five pigs. She did not challenge any of those claims in his defence case or through cross-examination. Those claims remained unchallenged. I know the return of bride price would have to be joint responsibilities of the defendant and her relatives but owing to long distance or for whatever reason only the defendant was sued.

I am sure once the orders were made her family members and relatives who took share of the bride price would help out. They know who they were. There is always a social and moral obligation.

Although there was no mitigating factors provided, and no legal representation, I have to be fair to the defendant. I take into account the fact that defendant had bore five children out of the marriage and with about 26 years of marriage with the complainant, it is only fair to make deductions. In saying so, I reduce the number of pigs to three, each at K1000.00 in value; cash is reduced by K1000.00 and for causing shame is reduced by K1,500.00. The total claims allowed for is at K5500.00.

I enter judgment for the complainant for a sum of K5500.00 plus 8% interest to run from date of summons to date of settlement and nominal cost of the proceeding. The defendant is allowed two months in which to pay up.

Should the parties decide to reconcile and reunite this order will cease to have effect.