Application of Thesia Maip [1991] PNGLR 80

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 27 February 1991
• Citation: [1991] PNGLR 80
• Docket Number: Re Thesia Maip and s42(5) of the Constitution
• Court: National Court
• Year: 1991
• Judgement Number: N958

Full Title: Re Thesia Maip and s42(5) of the Constitution; Application of Thesia Maip [1991] PNGLR 80

National Court: Woods J

Judgment Delivered: 17 or 27 February 1991

N958

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE THESIA MAIP

AND SECTION 42 (5) OF THE CONSTITUTION

Mount Hagen

Woods J

22 February 1991

27 February 1991

FAMILY LAW — Marriage — Proof of — Whether de facto relationship recognised by custom.

CONSTITUTIONAL LAW — Rights of all persons — Liberty of person — Imprisonment for failure to pay compensation for breakdown of marriage — Sufficiency of proof of marriage — No proof that de facto relationship recognised by custom — Imprisonment unlawful — Constitution, s 42 (5).

INFERIOR COURTS — Village courts — Jurisdiction — Power to order imprisonment — Breach of customary law as to marriage — Need for marriage to be proved — No proof that de facto relationship recognised by custom — Imprisonment unlawful — Constitution, s 42 (5).

Held

(1) Where the existence of a marriage is in issue in any proceedings great care must be taken to ensure that the marriage is legally supported either by the relevant traditional custom or under the Marriage Act (Ch No 280). Whilst custom is developing, it does not yet recognise a casual non-customary (de facto) relationship as a formal marriage.

(2) Accordingly, the female partner of a de facto relationship who was imprisoned by her village court for failure to pay compensation for breakdown of "marriage" to a male from another village had been unlawfully imprisoned and should be discharged under s 42 (5) of the Constitution.

Inquiry into Complaint

This was an inquiry into a complaint that a person had been unlawfully detained. The matter came to the attention of the court through the position of Woods J as visiting justice and was dealt with by him under s 42 (5) of the Constitution which provides:

"Where a complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained:

(a) the National Court or Judge shall inquire into the complaint and order the person concerned to be brought before it or him;

and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit."

Cur adv vult

27 February 1991

WOODS J: This is a complaint that Thesia Maip is unlawfully or unreasonably detained by virtue of an order of the Village Court at Balk. Thesia Maip was taken to the Village Court at Balk on a complaint from Jude Sioni that she was his wife and had left him and gone off with another man. She was ordered to pay K700 compensation which was later reduced to K300 by the local court magistrate when endorsing the order for imprisonment. Upon failure to pay this compensation she was imprisoned for 30 weeks.

The first question is how does this matter come before me. This is a...