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Kia v Demugu [2003] PGDC 18; DC181 (22 May 2003)

DC181

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 78 OF 2003

BETWEEN

George Kia
Complainant

V

Grag Demugu
First Defendant

Jenny Kia
Second Defendants

Port Moresby: Gauli, Apm
2003: 22 May

Civil Law: Adultery - Action brought after the Customary Marriage been dissolved - Act of adultery committed before the dissolution of the marriage - Action for adultery non-actionable once marriage is dissolved.

Cases Cited
Complainant Defendants
1. Pauline Titus & Nathan Kigolena -V- Saliau Molean, National Court Appeal No. 137 Of 1992 (Unreported).
2. Asi Burege -V- John Kaupa SC258 Of July 1983 (Unreported)

Counsel
In Person
No Appearance

DECISION OF THE COURT.

GAULI, APM: The defendants are sued for committing adultery on the 7th December, 2002 both at Goldie and in the Central Province pursuant to Section 4 (1) of the Adultery and Enticement Act 1988 which provides;-

"4 Action for Adultery

(1) A person whose spouse has committed and act of adultery may bring an action under this Act against;-

(a) the spouse; or

(b) the person with whom the spouse has committed the act of adultery; or

(c) the spouse and the person referred to in paragraph (b)".

The spouse is defined to include a party to a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage (Section 1 of the Act). I will come to this later.

The facts are this. The Complainant, Mr George Kia and Defendant, Jenny Kia were customarily married in 1994. They had two children of that marriage. They are both from Enga Province. Their marriage was according to the Engan custom. By an application by the Complainant, Jenny Kia, on the Complaint No. CPC 31/2003 for a Certificate of Dissolution of their marriage, the Central District Court in Port Moresby on the Oih March, 2003 granted the application and issued a "Certificate of Dissolution of Customary Marriage". The said certificate was granted and issued upon the confirmation by both parties that their customary marriage had been so dissolved.

The present cause of action for adultery was committed on the 07th December, 2002 some three months before the customary marriage was dissolved. This action was filed in Court on 11th April, 2003 a month after the marriage was dissolved.

There are two issue this Court should consider, these are;-

(1) Whether there was an act of adultery committed by the Defendant on the 07th December, 2002.

(2) Whether the act of adultery committed before dissolution of the Customary marriage be brought to Court after that marriage had been dissolved.

I now turn to the first issue, that is:

"whether there was an act of Adultery committed on the 07th December, 2002".

The Complainant's evidence is simply based on the affidavits of his two witnesses namely, Kapao Keps and Arlo Luther. The witness Kapao Keps stated in his affidavit that on the Oih December, 2002 between 1:30 pm and 2:30 pm at Goldie Barracks bus stop while waiting to catch a bus to go to 9 Mile, he saw both defendants driving pass in a Defence Force vehicle a 1600 Datsun Ute, Registration No. ZDU 165. They were driving out of Goldie Barracks. Still on the same afternoon about 5:00 pm at 9 Mile the witness saw both defendants driving back to Goldie in the same vehicle. They were both seated in the front cabin. This witness only saw them driving pass in a motor vehicle.

The witness Arlo Luther in his affidavit stated of sighting both defendants at 6 Mile on 1 ih January, 2003 driving pass in the same vehicle. In both these occasions the defendant Grag Demugu was driving. The incident of the 1 ih January is not part of the present action therefore I will not give considerations to it. The complaint before this Court is the incident of the 7th December 2002.

The Complainant has no other evidence apart from the affidavit of the witness Kapao Keps. The witness only saw the defendants together in a vehicle driving pass. The witness saw them driving out at about 1:30 pm and again he saw them driving in at about 5:00 pm. The witness has no evidence as to where the defendants went to nor what they did.

The "act of adultery" is defined under Section 2 of the Act where a spouse engages in a voluntary sexual intercourse with a person other than his spouse". By this provision there must be a proof of voluntary sexual intercourse. '"The evidence of the witness Kapao Keps is mostly assumptions. The assumptions that is not supported by direct evidence of voluntary sexual intercourse cannot be given weight.

I find that on the evidence as it is before this Court, the Complainant failed to prove the act of adultery against the defendants. There is no evidence of the defendants having sexual intercourse. Seeing the defendants together in a vehicle or at the shopping centres or at the markets does not amount to an act of adultery. I find that there is insufficient evidence to prove adultery.

I now turn to the second issue: "whether the act of adultery committed before the dissolution of the customary marriage be brought to Court after that marriage had been dissolved",

I have ruled above that there was no evidence to prove adultery been committed on 07th December, 2002. However since this action was filed in Court after the dissolution of a marriage, I decided to discuss the second issue as well.

From the facts as stated above the alleged act of adultery was committed three months before the dissolution of the marriage but the action was filed a month after the dissolution of the marriage. Can a person bring such an action to Court? The Section 4 of the Act authorises a person to bring an action where his/her spouse has committed the act of adultery. And Section 1 of the Act defines "spouse" to mean "a relationship between a man and a woman which can reasonably be considered as a subsisting relationship having the status of a marriage", By these provisions it is my view that the term "spouse" must be understood to mean that a person must be a spouse both at the time of the commission of the act of adultery and also at the time of the filing of the actions in Court. That relationship must be a subsisting relationship. A subsisting relationship is one that is currently existing having the status of a marriage. The phrase "status of a marriage" means, as expressed by his Honour Brown J, in an Appeal No. 137 of 1992 PAULINE TITUS & NATHAN KIGOLENA -V- SALIAU MOLEAN (unreported) at page 5.

"The status of a marriage would seem to me, in the context used by the legislature, to be a situation where a valid marriage has been contracted but the formalities for instance have not all been satisfied.

Where bride price is paid by installments or where reciprocal feasting between the respective marriage partners clans have not been completed but will in time then there is in my view a relationship having a status of a marriage although in custom it has not finally been legitimized".

In the present 'case there is no status of a marriage existing between George and Jenny. In fact their marriage had been legally dissolved on the 07th March, 2003. The defendant Jenny Kia therefore cannot be a spouse in this current proceedings once the marriage is dissolved.

It is quite understandable and acceptable that where a voluntary sexual intercourse occurs after a customary divorce there is no adultery. The late Kidu CJ, in the case of ASI BUREGE -V- JOHN KAUPA SC258 of July 1983 (Unreported), said at page 7;-

"If the appellant had sexual intercourse with the woman after she had customarily divorced the respondent, then no adultery charges should have been laid against the appellant".

The situation of the case of BUREGE -V- KAUPA (supra) is quite opposite to the present case. However my view is that the case of BUREGE -V- KAUPA is relevant in so far as bringing an action to Court after the customary marriage had been dissolved. Where sexual intercourse occurs before divorce but the actions have not been brought to Court until after the divorce no adultery charges should have been laid against the ex-spouse or the person who had sexual intercourse with the ex-spouse. Once the customary marriage is dissolved the existence of that relationship ceases. Any act of adultery committed before the dissolution are deemed not to have been committed if the charges are not brought until after the dissolution of the customary marriage. It may be that one of the reasons for a divorce of a customary marriage is adultery on the part of either the wife or the husband. The dissolution of a marriage would be deemed to be seen as a penalty for committing adultery. To seek orders for compensation for adultery after the dissolution would be seen as a double penalty. This would be against the spirit of the Section 37 8 9 of the Constitution of Papua New Guinea, which says that no person who has been convicted, acquitted or pardoned of an offence be tried again for the same offence. Once the marriage is dissolved, no actions for adultery should be brought to court for the acts of adultery before the dissolution of the marriage.

From the circumstances of the case and the evidence that are before me, I find that the defendants not guilty of adultery where the actions for adultery were not brought until after the marriage is been dissolved. That the case be dismissed and the defendants discharged.

Ordered:
Case dismissed.

In Person: Complainant
In Person: Defendant