DC8027
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
CIVIL JURISDICTION
APP. NO. 2 OF 2021

ROSE LISA
Applicant/defendant
V
PHILIP LISA
Respondent/complainant

GOROKA: B GORE, Magistrate
2021:  18th, 25th & 27th of May

VILLAGE COURT APPEAL- customary marriage, divorce at village court, appellant filed appeal, Grounds of appeal, other options not being considered, decision not fair, grounds of divorce not a good ground, appeal upheld, village court order quashed, marriage intact until and unless a court of competent jurisdiction decide otherwise.
CASE CITED:
Woodman v. Undai [1999] PNGLR 163
LEGISLATIONS:
Village Court Act
Customary Recognition Act
COUNSEL
Both Parties appeared in person

BACKGROUND

1.	The appellant and respondent were married for 36 years with five grown up children and nine grandchildren, three of the children are formally employed in the following organisations, a daughter is an accountant with BSP in Port Moresby and the other daughter is a medical doctor at Kundiawa General Hospital, one of her son is a policeman based in Port Moresby and two younger ones are currently studying at Uni Tech and Goroka Technical college respectively.

2.	The defendant/respondent is a technician with Telikom who resigned recently and the appellant is a house wife. The respondent filed divorce proceeding at the village court at or around March 2021.His grounds for divorce was that the appellant was a nagging wife and her actions had affected his health. The village court heard the case and based on those ground dissolve the marriage with an order for compensation of K3000 to be paid to the appellant. The appellant appeal on this decision to this court.
GROUNDS OF APPEAL

3.	The appellant raised five grounds of appeal, Ground 1, reason for divorce is shallow and not a good ground, grounds 3, 4 and 5 can be put together as one ground and that is, decision made was unfair, ground 2 and 5 can be put together as one ground and that is the appellant was not given reasonable opportunity to be heard and a quick decision was made in dissolving the marriage. 

EVIDENCE
4.	I have heard both parties in court, both gave their own version of stories, the respondent insisted that this appeal be dismissed because appellant was a nagging wife and have no respect for him as the husband. Her actions have affected his health. The appellant argued that his grounds for divorce are not good grounds. They are very shallow and the village court decision was totally unfair and biased considering the number of years they were married and the welfare of the children and grandchildren living with them at the moment.

5.	Secondly she argued that the village court heard the matter once and on the same day order for divorce, she said that was too fast, she was not given reasonable opportunity to present her case as per S.  92(2) (d) of Village Court Act, She further argued that both parties were not given any time to reconsider this issue nor reconciliation considering the number of years have been together and the number of children their have.

6.	She admitted being a nagging wife lately due to the fact that the respondent got his finish pay and was seeing other woman, he also gets drunk and half the time not sleeping in his house but elsewhere that’s why appellant was concerned of his wellbeing and put pressure on him. The appellant further said that the respondent has no medical condition, he is simply giving excuses to divorce her by alleging medical condition, and there is no medical report on file to confirm if he really had a medical condition.

ASSESSMENT

7.	There is no express statutory power in the Village Court to dissolve a customary marriage or order for compensation payment following such dissolution of marriages under the provisions of the Village Court Act. On the other hand Matrimonial Clauses Act does not apply to Customary Marriages. However there is general power vested on the village court under sections 47, 57 and 58 of the Village Court Act upon which village court derives its jurisdiction to dissolve customary marriage and can order for compensation after such dissolutions. The case of Woodman v. Undai (1999) PNG LR 163 basically deals with such scenario and the principle set out in that case is binding on the present case.

8.	I have assessed the present case to be one such case where village court used their power under sections .47, 57 and 59 to dissolve the customary marriage between the parties. 

9.	However in this case, the grounds for divorce are not good grounds. Being a nagging wife and putting pressure on the respondent in the recent past are not good enough reasons for divorce, she become nagging wife quite recently after the respondent got his finish pay entitlements from Telikom PNG and was absent from the house and was continuously drinking beer. The respondent was also suspected of having extra martial affair. The appellant was concerned of her husband life and was nagging him. This ground cannot hold water for the above mentioned reasons.

10.	Secondly matter was mentioned for the first time in court and divorce was granted on same day, the appellant was neither given any reasonable opportunity to present her case nor given parties time to reconcile or consider other options. Principle of natural justice not considered.

11.	A quick search on Google essentially said Principle of natural requires that a person receive a fair and unbiased hearing before a decision is made that will negatively affect them, the three requirement of natural justice that must be met in every case are adequate notice, fair hearing and no bias.

12.	The divorce ordered in these circumstances does not meet the above requirement hence is totally unfair and oppressive to the appellant, The parties were married for 36 years with  five grown up children and nine grandchildren, An opportunity to reconcile or consider other options will suffice. Abruptly ending such marriage is not fair on the appellant. 
  
COURT ORDER:
1.	Appeal is upheld
2.	I quashed the decision of the village court dated 25th of March 2021
3.	Appellant to return to her matrimonial home, the marriage is intact until and unless a court of competent jurisdiction says otherwise.
4.	The respondent, his relatives and agents are further restrained from threatening, insulting or harassing the appellant after this order
     _______________________________________________________________________
Plaintiffs’ Counsel: In Person
      Defendants’ Counsel: In Person