PNG Law Reports 1995
[1995] PNGLR 281
N1282
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ROBERT KUNJIL
V
THERESIA MONPI
Mount Hagen
Woods J
21 December 1994
6 January 1995
MATRIMONIAL LAW - Maintenance of wife and children - Constructive desertion - Purporting to take a new wife is grounds for the first wife to leave.
MATRIMONIAL LAW - Statutory marriage and customary marriage status.
Facts
The appellant and respondent were married by custom and then subsequently under the statutory system. They had five children. The former then purported to marry a new wife by custom. When she moved into the matrimonial house the respondent moved out with her children. The magistrate held that the appellant had committed adultery and the act of taking the new wife into the house amounted to constructive desertion. The appellant appealed against the order that he should pay maintenance to his wife for herself and children.
Held, dismissing the appeal,
1.       To enter into a marriage with another woman, whether statutory of customary, after a statutory marriage is committing the offence of bigamy and also adultery.
2.       To take a new wife into the home is to create an unreasonable situation for the wife, and it is not unreasonable to expect her to leave. This is constructive desertion by the husband.
Cases cited
Zerike v Kagl (1994) unreported.
Counsel
P. Peraki, for the appellant.
B. Aipe, for the respondent.
6 January 1995
WOODS J: This is an appeal against an Order of the District Court at Mount Hagen in maintenance proceedings whereby the District Court ordered that the husband Robert Kunjil pay maintenance to the wife Theresia Monpi for herself and their 5 children. 
The grounds of appeal are firstly that the Magistrate erred in finding the appellant liable as the evidence before the Court did not support the finding that the appellant had deserted the respondent and children rather that the wife had left the home with the children without the consent of the husband. In the alternative, it is submitted that the order for maintenance payments was excessive in the circumstances. 
The parties were married in 1973 through custom with full brideprice as well as in church with a marriage certificate. The church marriage with the marriage certificate means that the marriage was a statutory marriage under the Marriage Act. The couple had five children. Then problems seemed to arise in 1989 when the husband got what he called a new wife. I say called a new wife because in law he could not have a second wife as this would be committing the criminal offence of bigamy by taking a second wife while the statutory Marriage Act marriage was still subsisting. 
The evidence is that the bringing of the so-called second wife into the home caused difficulties for the respondent and she was forced to leave the home. This is not only from the evidence of the respondent/complainant but also is supported by the appellant’s own witness Peter Kigi, a village court magistrate, who said “the problem started after the defendant got a new wife”. 
What is clear is that nobody realised the legal consequences of a statutory marriage which means that any later marriage whether statutory or customary is committing the offence of bigamy, and is also adultery. So once a husband commits bigamy this must be a very good reason for the real wife to be forced to leave the matrimonial home. And this is what the magistrate found. She found that by taking a “new wife” into the house and thereby committing adultery the real wife was forced to leave and this is in legal terms constructive desertion by the husband. The Magistrate found in her judgment:
“The essence of the complaint under the Deserted Wives and Children Act is the unjustified conduct of the husband or father. Desertion may be actual or constructive, that is if the wife is compelled to leave by the husband’s violence or other improper behaviour, she will not be deemed to have been deserted without reasonable cause.”
The magistrate then found: “in view of the defendant’s behaviour it was not reasonable to expect the wife to reside with him. I find it constructive desertion. “
The magistrate did overlook the criminal status of bigamy which makes the husband’s situation even worse. 
I find the Magistrate’s findings are the correct statement of the law as it is or should be in PNG. Even allowing for the customary practice of polygamy which does not in fact apply here as there is a statutory marriage under the Marriage Act there is no evidence that even custom says that a wife must be forced to live in the same house as a new or other wife. For example see Injia J in Zerike v Kagl [1994] unreported: “There is no way she could have moved in the defendant’s house with his wife and children living in the same house.”
I find no error in the Magistrate’s reasoning and ruling. Any man who takes a so called new wife into the same house as the first wife would be creating an unreasonable situation for the other wife. And it is not reasonable to expect the wife to continue to reside, and if she is finally forced to leave that is constructive desertion by the husband. 
On the alternative ground of appeal of the excessive nature of the maintenance payments ordered, the appellant is in a wage employment and I find that the amounts ordered to be paid are not unreasonable in the circumstances.
I dismiss the appeal.
Lawyer for the appellant: Peraki Lawyers.
Lawyer for the respondent: Public Solicitor.