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Aska v Maki [2002] PGDC 13; DC179 (18 December 2002)

DC179

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 62 OF 2002

BETWEEN

Elizabeth P Aska
Complainant

V

Raphael Maki
First Defendant

Serah Bernard
Second Defendant

Lihir: Patricia Tivese
2002: 16th & 18th December.

Civil Jurisdiction: S 4 (1) (C) Of The Adultery & Enticement Act - Judgment

Cases cited:
1. APP NO 32 & 33 Copland Oa and Ester Korua -v- Nelson Korua unreported National Court Judgement of 2nd August 1999.
2. APP NO 501 and 502, Elma John and Luke Mune - v- John Nuke.

This is a complaint taken under 84 of the ADULTERY AND ENTICEMENT ACT 1988 against the first and second defendant for adultery.

The complainant told the court that, she met the first defendant in the year 2000 and soon after they moved into one house and lived together as husband and wife. The complainant comes from Rabaul and the defendant is from the North Solomon's Province. On the month of January 2002 the first defendant accompanied her to Rabaul. While they were in Rabaul he made a payment call "paem sem " to the complainant's family. The purpose of this payment was to publicly inform them of his intention to marry their daughter.

In reply both defendants admitted engaging in sexual intercourse but denied that, the complainant was married to the first defendant. The first defendant told the court that he did not marry the complainant under Part n nor Part V of the Marriage Act (Chapter No 286). He admitted he paid "paem sem", but denied that, this payment was for bride price.

In Order to establish whether the relationship between the complainant and the first defendant was a relationship having the status of marriage, I shall now refer to definition of the word "spouse" under 81 of the ADULTERY AND ENTICEMENT ACT. The word" spouse" includes a party to a relationship between a man and a women which can reasonably be considered a subsisting relationship having the status of a marriage."

Justice Injia in the App NO 501 and 502, Elma John and Luke Mune Vs John Nuke unreported National Court Judgement dated 14 May 1999 had listed the following factors to assist the Court in considering whether a relationship have the status of a marriage." Some of the notable common factors include the circumstance of cohabitation including the place and period of cohabitation; the children born to the couple in this period; the acceptance of union of the couple by the immediate parents and relatives of the couple throughout the period of cohabitation where customs of certain societies require bride price payments as a pre-requisite to a valid marriage, the demand for payment of bride price by the women and her relatives in this period; the reciprocal exchange of gifts and undertaking of economic obligations between the couple and their respective relatives in recognition of or in furtherance of their relationship and the regard had of the relationship of the couple by members of the community the couple live in and the people they relate to.

The test is an objective one. The court should ask itself. Having regard to the relevant factors, is the relationship between the man and the women one that ordinary people in the community they live in or where they come from, and the relevant people they relate to, one that is accepted or regarded as one of a husband-wife relationship, that is, one of" marriage?" In this case Justice Injia has allowed for the courts to add to the list of considerations he had set out for the different cases that comes before them. He said, As to what factors are relevant to be considered in deciding whether a relationship is one enjoying the status of marriage are many and of course will depend on the circumstances of each case."

The interpretation of "spouse" under 81 of the Act is too wide. It appears to cover the defector relationships as well. However, it does not specify which type of defector relationships. The danger is that, people who have had a relationship under part II and part IV of the Marriage Act and now living in adulterous relationships will also be seeking reliefs under 84 of the Adultery and Enticement Act. In most cases, this will be done due to ignorance. To avoid this problem, I would add two more considerations to those set up by Justice Injia.

1. Whether or not one of the parties had entered into any form of marriage prior to this relationship.
2. Whether or not they have been granted a divorce, in which case they would have to produce a certificate to prove the later.
   

I found from all the evidence before this court that, the first defendant had not paid bride price as required under part II of the Marriage Act nor entered into a formal marriage with the complainant under part IV of the Marriage Act Moreover, it was not disputed that the parties were living together for a period of two years. In this case I will adopt the guidelines set out by Justice Injia in the case Appeal No 01 and 502 Elma John and

Luke Mune Vs John Nuke supra. I 'am satisfied that the parties had been living together for two years and that their families considered their relationship to be that of husband and wife. However, the court enquired further as to whether or not, either of the parties had entered into a previous relationship, and the court found that the complainant had entered into part IV of the Marriage Act. It was also revealed that, the complaint had not been granted a divorce from her first husband. I therefore, conclude that the complainant was living in a adulterous relationship with the first defendant and dismissed her complaint.