N807

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LUKE KERE AND ANOTHER

V

BESSI TIMON AND FAMILY

Madang & Waigani
Los J

21 September 1989
9 March 1990

MATRIMONIAL LAW - Customary law - Bride price repayment - Application of custom within constitutional framework - Wife not property of husband - Relevant factors - Fault - Custody of children - Fairness - Competing customs a matter of fairness - Evidentiary burden.

On appeal from an order of the District Court for payment of monies as a part return of bride price on breakdown of the marriage,

Held:

(1) Any customs related to bride price payment must be applied within the general constitutional and legal framework of the country.

(2) The custom of bride price payment cannot within that framework entitle a husband to do what he likes with his wife.

(3) Accordingly, where there is a breakdown of a marriage in respect of which bride price payment has been made, a major factor in considering whether there should be any repayment of bride price is where the fault lies. Other factors include custody of the children and fairness.

(4) It is a question of fairness as to whether one custom should be applied in an area where there is a different custom accepted and practised by people in that area.

Cases Cited

The following cases are cited in the judgment:

Bore Konia v Daniel Dosinga and PNG (N745, 1989, Los J, unreported).
Derbyshire v Tongia [1984] PNGLR 148.
SCR No 4 of 1980; Re petition of M T Somare [1981] PNGLR 265.

Appeal

This was an appeal from a decision of the District Court in respect of a claim for repayment of bride price.

Counsel:

M Miva, for the appellants.
The respondents in person.
Cur adv vult

9 March 1990

LOS J.: This appeal arises from a decision of the Madang District Court sitting in its Grade V jurisdiction. The claim before the court was for return of certain bride price payments made to the family of Bessi Timon, the respondent, for the marriage of Bessi Timon to the appellants’ son, Kere Muro.

In its decision on 11 February 1989, the court ordered the respondents to pay the appellants a sum of K1,700. The grounds of appeal are:

1. That in view of the evidence, the amount ordered to be paid is insufficient;

2. That the order was and is in the circumstances unfair and unjust to the appellants.

I deal with the two grounds together because in my view they deal with the same issues but are worded differently.

The parties come from different areas: Kere Muro’s father comes from Milne Bay while his mother comes from Kairuku in Central Province. The respondents come from Madang. Automatically there arises a question of conflict of customs. The evidence taken by the District Court indicates that there was a marriage. The appellants made certain payments and the respondent accepted the payments. The parties also accepted that the marriage had broken down. The marriage took place in the Raicost area of the Madang Province. It broke down in Siar Village near the town of Madang.

The basic notion of bride price payment is common and accepted throughout the country. But the extent and the form varies from area to area. The evidence indicates that Bessi Timon and Kere Muro made a choice themselves to get married and Bessi Timon came and lived with Kere Muro in his parents’ house. The appellants accepted the choice by their son and formalised the relationship by making certain payments. I say certain payments because just what had constituted bride price payment was also an issue. It is still an issue on appeal as apparent from the grounds of the appeal. Bessi Timon’s parents also accepted the choice by their daughter and accepted the relationship by accepting payments.

The appellants made payments on three occasions. The first payment was made when Kere Muro and Bessi Timon met and lived together and Bessi Timon became pregnant. The second payment was made when Bessi Timon was about to give birth. The third and last payment was after the child had been born and was about a year old. The first payment consisted of food and a pig. The second one consisted of a pig. The third payment consisted of food, bilums, two pigs and cash. The food consisted of garden foodstuff like bananas and yams and store food like rice and flour. There were four bilums. The amount of cash was disputed in court. The appellants claim it was K3,000 to K4,000, while Bessi Timon and her parents said it was K2,800. The value of the pigs and foodstuff was not settled. All in all, the appellants claimed K6,000 as a maximum value for food and pigs together with cash.

The respondents argued in the District Court and later on appeal that Kere Muro was at fault in breaking up the marriage and therefore there was no reason to ask them to repay any bride price payment. At any rate, and in the alternative, as he had caused the marriage to break down, payment of K1,700 was sufficient to satisfy his parents’ claim.

The appellants did not admit any fault on the part of their son initially, but as the hearing proceeded the mother conceded by saying the trouble occurred later. By inference, she said they had gone to a lot of trouble paying a substantial bride price; yet Bessi Timon did not stay long and therefore bride price should be returned. Later, at the hearing of the appeal, it was argued that K1,700 was insufficient because the amount did not correspond to the trouble they went through making payments on three occasions and that the marriage did not last long.

The question of who caused the breakdown of the marriage was property decided upon by the learned magistrate by examining the evidence before her. As to how that affected the claim for return of bride price payment was a question of customary law. The learned magistrate had also addressed that question.

The reason for the breakdown of the marriage was that Kere Muro seduced and had an affair with Bessi Timon’s younger sister who was about 14 years old then. She became pregnant. Apparently Mrs Kere, the mother of Kere Muro, was upset about this allegation and objected to the evidence on this. However, she conceded it with protest by saying, "The problem came later, here I am only interested in the bride price".

There was also evidence that Kere Muro had a relationship with another woman and a child was born as a result of that relationship. This stood unchallenged. It seems Bessi Timon was prepared to ignore it. But subsequently she exploded when Kere Muro had an affair also with her own sister. And the magnitude of the problem as she saw it can only be described in her own evidence before the court.

"When I saw him doing that with my sister and I explained clearly to him this is a bad thing you have done to go round with another woman is not good but with my little sister is not acceptable and left me and went and worked in town (sic)."

It is obvious that Bessi Timon did not want to continue as Kere Muro’s wife because of his affairs with another woman and her (Bessi Timon’s) own sister. Each had a child.

Should the bride price payment be returned? Evidence on custom was needed to determine this question. The main witness called by the appellants who gave evidence on bride price in Central Province said these were the basic rules:

"If parents of man pay bride price for a girl and the girl leaves husband without good reason the girl’s family must return the bride price. Secondly if the girl does not like the husband and leaves the husband and the husband asks her to return and she does not then the parents of the man have to repay the bride price (sic)."

The witness was cross-examined by Bessi Timon and I quote part of the evidence:

"Q. You said if wife leaves for no good reason, what if wife has a reason?
A. If wife can convince there is a good reason for leaving the two groups of parents must meet and wife does not want to return and convinces is good reason then cannot claim compensation, if not a good reason man’s parents can claim compensation (sic).

Q. If man is cause of trouble what happens to bride price?
A. The wife must convince the man’s parents that is their son’s fault and she cannot return and parents can decide, maybe can claim.

Q. What if too big problem and lose for good.
A. They must repay bride price and that’s all there is to it. In our area in Central Province if I want to marry and pay bride price, she is under my control as I have paid. If she goes back to her parents I can go back and take her and if she refuses she must convince man and his parents. She must repay. She and her parents must repay. It’s like buying a car, Ela Motors, I can do what I want, hit her or whatever I have every right. If not come back then we have right to ask for bride price back and therefore son and his parents have every right to ask it back (sic)."

The witness was then examined by the court.

"Q. This Central Province custom who does it cover.
A. All line of Central and Papua.

Q. Does it cover Madang also.
A. I do not know.

Q. If Central Province man marries a woman from an area other than Central eg Highlands.
A. The Church custom. Applies only under control. When pay bride price.

Q. What if Central marries a Madang.
A. That is what happened here they are not satisfied.

Q. Give examples of ‘good reasons’ for wife leaving husband.
A. In Central if married and wife leaves and goes back to her parents she refuses to return then must repay.

Q. Answer the question.
A. Big head so leaves. She can sit with his parents (sic).

Q. Beating up a good reason.
A. No.

Q. Going around with women.
A. No. She can have every reason to leave her husband tell parents. I believe two groups parents must decide.

Q. If goes around with friends and gets drunk and fails to care for family.
A. If takes off with children be settle between two groups of parents (sic)."

Did the evidence suggest that by custom the woman’s line must pay back the bride price even though she left the husband because the husband had extramarital affairs with other women, especially the wife’s younger sister? In other words, does fault have any effect on the question of whether to repay any bride price? The learned magistrate was not impressed with the evidence given by the witness called by the appellants. She observed that the witness had no in-depth knowledge of the custom. That custom could not be binding in Madang. If it was the custom, part of the custom would not apply as it would be against the public interest pursuant to s 3(1)a of the Customs, Recognition Act (Ch No 19). There was no right to beat a wife as it was an offence of assault. Further, that bride price payment did not entitle the man to bring shame and disgrace to his wife’s line by having affairs and impregnating his wife’s sister which was a crime under s 216 of the Criminal Code (Ch No 262). So also was the failure to maintain the child contrary to s 22 of the Deserted Wives and Children Act (Ch No 277).

I consider that Mrs Kere was too general and sweeping in her evidence when she said the same customary rules of marriage applied throughout Central Province and the Papuan region. The details of customary rules in any aspect of life vary within one Province, even within tribes or villages. The witness she called to give evidence on the custom of Central Province exaggerated when he said that once bride price payment is made, a woman becomes enslaved to her husband. In saying this, he implied that the husband’s fault was irrelevant because the wife was fully paid for. It may be true in areas where the real tradition is strong. For example, in Vailala East Mareke, Gulf Province: see Customary Law in Papua New Guinea, Law Reform Commission Monograph No 2, at 156. I shorten the publication for easy reference to LRC Mono 2. Also in villages around Kiunga, Western Province, women are not allowed by custom to retaliate: see Marriage in Papua New Guinea, Law Reform Commission Monograph No 4, at 8 (LRC Mono 4). But it cannot be claimed, as Mrs Kere has done, that that part of the custom has a general acceptance in the Papuan region of the country. In Oro Province, for instance, mistreatment of women by their husbands has limits. If a wife is unjustly mistreated, she can pack up and leave: LRC Mono 2, at 183, 195. Kere Muro’s father did not give evidence on his custom in this respect. But just by way of example, I refer to the custom on South Fergusson Island in Milne Bay. If there is continued ill-treatment upon the wife by her husband, she can leave the husband altogether. She can remarry. Sometimes she retaliates by committing adultery with another man before leaving (Mono 4, at 29, 33). Or on Kiriwina, if the husband mistreats his wife too often, the wife’s relatives may "punish" the husband by forcing their "daughter" to leave him (Mono 2, at 173).

Whether the traditional custom is accepted or not is a different question. Whether that custom can be applied within the general constitutional and legal framework of the country is another question. Many women are not familiar with their rights under the Constitution. The learned magistrate has properly made reference to specific provisions of the Constitution and other statutory laws of the country. I express no contrary view on those provisions. In Bore Konia v Daniel Dosinga and PNG (N745, 1989), I said value of life did not vary with gender. That is an accepted constitutional principle. Custom cannot have it both ways. Bride price payment therefore does not alter that right. I conclude therefore that bride price payment does not entitle a husband to do whatever he likes with his wife. Therefore fault on the part of a partner which causes the marriage breakdown must be the major factor in considering whether to return any bride price payment.

Kere Muro’s father did not give evidence. Therefore his own particular custom as to whether any bride price payment could be returned at all despite the fault of marriage breakdown on the part of his son is not known. Perhaps it was convenient to accept the Central Province custom. Or, maybe the convenience, together with the fact that he comes from a matrilineal society that made him let his son’s marriage be decided in accordance with the mother’s custom. For general guidance, I refer to the custom in the Trobriand Islands. There, if a wife commits adultery and the marriage breaks up as a consequence, her relatives must return veguala (husband’s things), showing that the marriage no longer exists: LRC Mono 4, at 12, 14. The monograph does not say what happens where the husband commits adultery. But as fault is emphasised, the question of return of bride price must be affected by adultery on the part of the husband.

As to the respondents’ custom, the witness called by them gave helpful evidence. What he has said was supported by Bessi Timon’s evidence as well as her father’s evidence. What they said cannot be generalised as Madang custom for there are variations. They come from Siar village in the Bel area surrounding the township of Madang. Bessi Timon’s father said in answer to the court’s question at the hearing:

"It is hard to explain if parents of man pay and later the man turns and does something wrong. It is a big thing for parents to pay bride price. This bride price ‘sleeps nothing’. Cannot repay it in our area. If the parents pay and Bessi goes off with another man then certainly we must repay, this new husband and her must repay the bride price. If not then all the children must go to pay back bride price (sic)."

Here is a strict custom: when the husband is at fault, he or his people cannot ask for return of bride price. The logical conclusion is that if the man commits adultery and the marriage breaks up, there is no obligation on the part of the wife’s line to repay any bride price.

As to the appellants’ custom, despite the insistence on applying the Kairuku customary law, there was admission by the main witness that that custom did not apply with its stringencies outside the Central Province. It would be contrary to common sense. Other areas recognise the need not to insist upon applying their customs with its stringencies when outsiders are involved. For example, bride price payment is not insisted upon by the parents in Gomwa village, South Fergusson Island, Milne Bay Province (Mono 4, at 26-29).

Despite the insistence by the parties on imposing their own customs, there appeared a common denominator, that is, because Kere Muro was grossly at fault, bride price cannot be repaid. However, this rule is qualified by consideration of the custody of children and of fairness or unfairness whether to keep the bride price payment when there is no longer a marriage or the marriage was of such short duration.

I take, first, the custody of children as a consideration. Inherent in the evidence of Kere Muro’s mother is one other reason for paying bride price, which is that children of the marriage must stay with the husband’s family. Inherent in the evidence of Bessi Timon’s father is a message that if bride price payment is not returned, children of the marriage must go to the father’s line as payback for bride price. What Bessi Timon and her parents have now are the bride price and the child of the marriage. The appellants have neither.

The other consideration has not been proven as a specific part of any of the customs of the disputing parties. But it is apparent from the claim by the appellants before the District Court and subsequently stated in the grounds of appeal. They said it was unfair for the respondents not to return any bride price payments at all. In this respect, Bessi Timon’s father’s response was torn between his strict custom on the one hand and a guilty feeling on the other hand:

"It is hard to explain if parents of man pay and later the man turns and does something wrong. It is a big thing for parents to pay bride price. This bride price ‘sleeps nothing’. Cannot repay it in our area (sic)."

In other words, he says it is not fair that they have received a substantial bride price, but that the marriage of their daughter to the appellant’s son no longer exists nor did it last long.

I think it is obvious from the evidence that custom can relax itself to accommodate the sense of fairness. Custom is a growing thing. It grows or moderates itself and that does not need citation of many authorities. In Bore Konia v Daniel Dosinga and PNG (N745, 1989), I said the growth of custom, its extent and direction are influenced by many factors. The growth of custom may be influenced by formalities of the Constitution and the laws of Papua New Guinea or by informal things such as needs and conveniences. Obviously, the evidence shows that the sense of fairness — that no man can get rich from another person’s fault without a bit of sweat — can influence the growth of custom.

I think that consideration of the custody of the child of the marriage and the fairness requires that Bessi Timon’s parents must return a part of the bride price payment. In this respect, I agree with the learned magistrate’s decision to order a partial return of bride price.

How much would have been sufficient? The appellants argue that K1,700 is insufficient. The appellants look at the total value of the goods and cash paid on three occasions. That is about K6,000. The respondents had disputed the amount of cash. The learned magistrate had not made a clear finding on this. But the difference is from a minimum of K200 to a maximum of K1,200.

Apparently the appellants regard the three payments as constituting the bride price payments. This is similar to the Motuan custom: see the Editorial notes in Derbyshire v Tongia [1984] PNGLR 148 at 152-154. First the parents of a boy initiate an exploratory talk with parents of a girl they are interested in getting married to their son. During this talk some betel-nuts and cooked food are exchanged. If there is an agreement, "maoheni", the boy’s parents give a small amount of money to the girl’s parents. Three or so months later, the second payment is made. This is called "kuku". "Kuku" consists of food, pigs and cash. When "kuku" is paid, the girl and the boy live as man and wife. Then there is the third and last payment, called "dava bada" or "dava" which again consists of food (garden and store food), pigs and cash. To this extent, the appellants’ claim does cover three payments as does the Central Province custom. There is therefore support for their claim from the summary of the Motuan custom I referred to. But how can this be applied to Madang?

There is no requirement in the respondents’ area to make three payments. Sometimes bride price is not required at all. It is a notion recognised but to an extent not necessary; as far as the present generation is concerned, it is "samting bilong bifo"!

This is certainly reflected in research done by Sanol Malaga on Marriages in the Amele area of Madang Province: see LRC Mono 2, at 49. At 52, on bride price, he says:

"Bride price is an area of Amele customary law which is in a transitional period regarding forms of payment, a transitional period from pigs, shells, and clay pots (generally a strict traditional payment) to modern money and other goods. The girl’s relatives in the Amele area are the persons who determine how much a man has to pay as bride price. Soon after the names of the parties intending to marry are announced, one of the chosen girl’s relatives visits the man’s relatives and lets them know the required amount of bride price. Of course, it is not always as smooth as this. Parties sometimes elope to get married, which usually results in high payments of bride price. Also, in ordinary situations, it is not uncommon for the girl’s relatives to charge nothing. In any case, the man’s relatives prepare for the payment, and at the date arranged, both groups meet and the man’s relatives hand over the payments. The payments include pigs, clay pots, wooden plates, and many other items. There is usually no dispute involving bride price payments except where the amount is thought to be unreasonably high."

Obviously the parties are looking at different amounts as they are entitled to do. Validity of one custom cannot be questioned as against another custom because each is subject only to the criteria imposed by the Constitution and its legality under various statutes. It is a question of fairness whether one custom should be applied in an area where there is a different custom in existence and accepted and practised by people in that area. In this case, marriage and bride price payments were made at Raicost. Although Raicost is in Madang Province, all the parties, the parents on both sides, do not come from there. It might have been interesting to know how long Kere Muro’s parents had lived in Raicost and whether they had considered Raicost as their home. If they had considered Raicost as their home, then there might be a consideration as to whether they have adopted or at least have acquiesced in some aspects of customary rules of marriages there. If so, insistence on Kairuku custom in the marriage in question might not be fair as it might be tantamount to imposition of one "law" upon different people without any modification. History tells us that even the mighty common law of England could easily be modified by the circumstances of the area where it was applied.

It is my view that only the last payment should be considered. To consider the total value of the goods and cash payments made on three occasions would be to impose the Kairuku custom upon the respondents. That would be unfair. That may also mean accepting that three payments is a custom practised in most parts of Papua New Guinea. There is no evidence on this and in this respect I refer to a concern expressed in SCR No 4 of 1980; Re petition of MT Somare [1981] PNGLR 265, per Kidu CJ, at 272:

"... Counsel then submitted that custom should be used to formulate a new rule of locus standi at least as far as leaders in this country are concerned. He quoted certain authors and read an affidavit of Herman Beni to show this Court that a custom exists in this country that leaders can speak in any forum on behalf of their people. If such custom exists, it applies to certain groups of people in this country — e.g. the Arapesh of East Sepik Province. The custom is not shown to be applicable throughout Papua New Guinea. I consider that in a case such as this, for a custom to be held to be applicable in Papua New Guinea, evidence that at least the majority of the nineteen Provinces have this custom would be required for this Court to hold that it applies in Papua New Guinea. For this reason I am of the opinion that there is no custom in this country that any leader can come to this forum and speak on behalf of his people."

I should therefore look only at the final payment when addressing the question of sufficiency or otherwise of the amount subject to the appeal.

The appellants say they had paid cash in the sum of K3,000 to K4,000 while the respondents say it was K2,800. The payment ordered by the District Court stated in percentage is 43 per cent to 57 per cent of the lowest and highest sums claimed to have been paid by the appellants and it is 60 per cent of the sum the respondents say the appellants have paid.

In my respectful view, the amount ordered by the District Court is quite sufficient to accommodate fairness as well consideration for custody of the child. The learned magistrate had not fallen into any error in this respect. I therefore dismiss the appeal.

Appeal dismissed

_______________

Lawyers for the appellants: Miva and Associates.
Respondents in person.