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Maniha v Maniha [2009] PGDC 45; DC875 (9 June 2009)

DC875

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 55 of 2009

BETWEEN

REGINA MANIHA
Complainant

AND

IPAI MANIHA
Defendant

Goroka: G Madu
2009: May 15, 25
June 1, 9

CIVIL - Seeking orders for search warrant – child taken by the father and kept in his custody without mothers consent – child’s place of residence and person whom she is living is known - situation does not necessitate issuance of search warrant – case dismissed.

Cases Cited:
Nil

References:
Nil

Counsel:

Regina Maniha, for the Complainant
Ipai Maniha, for the Defendant

9th June 2009

REASONS FOR DECISION

G Madu: The complainant filed an information against the defendant for keeping a female child in his custody and denied her access to the child.

2. The facts perceived are the complainant is a second wife of the defendant and had three daughters from that wedlock ages range from one year to seven years.

3. The complainant is currently not employed and lives with her two daughters namely Kathleen seven years and Sirauke three years in the house owned by her. Her last daughter, Shonte one year is residing with her aunty at Okiufa Village,Goroka.

3. On 8th July 2008 the complainant went to Alotau leaving the children with her big sister at the block. Upon her return on 8th August 2008 she found out that her daughter was not living in the house.

4. She was told that Shonte was taken by the defendant on 12th July 2008, when he came to the block drunk and has not returned her since that time. On three occasions the complainant tried to get Shonte, but was refused and assaulted by the defendant.

5. On 4th May 2009, the Complainant filed an information against the Defendant saying that he was keeping a female Child namely Shonte in his custody since 12th July 2008 and denied the her right and access to the child

6. The only issue is whether under the circumstances a search warrant should be issued to the complainant?

7. The complainant submitted that she being a biological mother had all the rights to the child and that she did not give her consent to her husband nor his relatives to take care of the child in her absence. She further said that the child is a pre-mature child and wanted her back so she could take care of her together with the two other daughters who are already in her custody.

8. The complainant further said that no proper customary agreement was ever arranged by the defendant for the child namely Shonte to be adopted by the defendant’s sister and her husband. She said that at one time her husband got drunk and made a statement saying that if complainant gave birth to a baby girl she would be given away to his sister but if the complainant gave birth to a boy they would keep the child.

9. The defendant in response said that the complainant abandoned two of the children at Council Camp – West Goroka and left for Alotau without proper arrangement for their welfare and security and did not informed the defendant as their father.

10. The defendant also stated that the Asaroufa Village Court [Lowa No.02] heard the matter and awarded the children to his custody refer to annexure “B”.

11. The defendant further said that he support the complainant and the two other children by providing K100.00 per week and wants to continue that support.

12. The complainant is seeking orders to issue search warrant because the defendant took the child namely Shonte to be with him whilst she was away at Alotau. The situation in question does not necessitate the issuance of search warrant because the complainant knew where the child was living and under whose custody the child was being kept. The complainant would have sought an application for orders for the defendant to return the child with specific orders for the police to enforce the order.

13. For the above reasons I refuse to grant the Search Warrant and dismiss the complaint.

_____________________________

Lawyer for the Complainant: Regina Maniha
Lawyer for the Defendant: Ipai Maniha