Darusila Kuang v Eliab Tovivil [1969–70] PNGLR 22

• Jurisdiction: Papua New Guinea
• Judge: Frost J
• Judgment Date: 19 May 1969
• Court: Supreme Court
• Judgement Number: No524

Full Title Darusila Kuang v Eliab Tovivil [1969–70] PNGLR 22

Supreme Court: Frost J

Judgment Delivered: 19 May 1969

1 Maintenance; Common law

2 Rehearing ordered on claim for maintenance of wife, children of customary marriage; magistrate erred in holding maintenance laws didn't apply to customary marriages; Marriage Act s55 departed from common law

3 HUSBAND AND WIFE—Leaving without means of support—Maintenance of wife and children of native customary marriage—Deserted Wives and Children Act 1951–1961, s5 The Deserted Wives and Children Act 1951–1961 confers jurisdiction on a District Court to make a maintenance order against a husband or father who leaves his wife or child without means of support.—Marriage Act 1963, s55.

Held:

That by virtue of s55 of the Marriage Act 1963, a native customary marriage, whether potentially polygamous or not, is to be treated as a valid and effectual marriage for the purposes of the Deserted Wives and Children Act 1951–1961.

Accordingly a District Court may hear proceedings for maintenance under the latter Act against a husband who is a party to any native customary marriage.

Cases referred to:

Baindail v Baindail [1946] P 122; Sowa v Sowa [1961] P 70; Ng Ping On v Ng Choy Fung Kam (1963) SR (NSW) 782; and Bamgbose v Daniel [1955] AC 107.

Appeal from District Court.

On 2 January 1969, the District Court at Rabaul dismissed the complaint of Darusila Kuang (the appellant) that Eliab Tovivil (the respondent) had left her, the appellant, and the children of her native customary marriage with the respondent. Against this order the appellant appealed. The grounds on which the complaint was dismissed and the nature of the marriage appear in the reasons for judgment.

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Frost J: This is an appeal against an order of the District Court made on 2 January 1969, at Rabaul in effect dismissing a complaint made by the appellant under the Deserted Wives and Children Act 1951–1961 that the respondent had left her and the children of her marriage with the respondent without means of support. The learned stipendiary magistrate ruled that "the appellant...