Ali vs Sewji & Others (Civil Appeal 63 of 2005) [2006] TZCA 21 (17 November 2006)

Link to pdf of original judgement













(Appeal from the Judgment and Decree of the High Court of Zanzibar at Vuga)

(Mshibe Ali Bakari, J.)

dated the 29th day of June, 2004


Civil Case No. 49 of 2003


JUDGMENT OF THE COURT 7 & 17 November 2006 MROSO, J.A.:

The appellant who is an Indian citizen was married to the first respondent in India in 1998 according to Islamic rites. Both moved to Zanzibar where the first respondent was domiciled. She did not get any issues with the husband but the latter had five grown up


children, some- of whom are the rest of the respondents in this appeal.

While the couple were living together in Zanzibar the husband became ill in 2003. According to the appellant, the husband suffered from "severe stroke and paralysis." He was taken to Dar es Salaam for treatment and the appellant stayed with him until subsequently he was taken back to Zanzibar. He did not return to the matrimonial home but was taken to a home of his children. The appellant claimed that the children denied her access to her husband. They also denied her free use of the matrimonial home. The rooms in the matrimonial house were locked up except for one room where she was confined. She claimed that some of the children assaulted her on several occasions, denied her maintenance and constantly harassed her, telling her that she had been divorced by her husband. Her jewellery was also taken away from her. Following from all this she decided to file a suit in the High Court of Zanzibar against her husband and five children of the husband. She wanted the High Court to order the husband and his children to pay her USD


55,000.00; general damages for assault and harassment; incidental costs of USD 5,500.00; return of her passport and interest on the decretal amount. The High Court, Mshibe Ali Bakari, Judge, decided hyperlink she had been validly divorced and should return to India. Otherwise her suit was dismissed but costs were not ordered. Aggrieved by the dismissal of her case, she has appealed to this Court.

At the hearing of the appeal the appellant who had already returned to India was represented by Mr. Mbwezeleni and Mr. Mnkonje learned advocates. The first, second, fourth and fifth respondents were represented by Mr. Mushumba, learned advocate. The third and sixth respondents had not been served and were unrepresented. The advocates for the appellant decided to drop them from the appeal.

Six substantive grounds of appeal were filed and all except grounds four and five were argued seriatim. Grounds four and five were argued together. On the first ground it was complained that


the trial judge should have found that the case had been proved against the first and fifth respondents and the second ground, that the trial court should have found the appellant had been assaulted \ and harassed and that she had reported those incidents to the police, the Sheha and the Indian Consulate Officials. On the third ground of appeal it was claimed that the trial court should not have found the second respondent Amina Mohamedali Sewji (DW1) a credible witness. On the fourth ground the appellant sought to fault the trial judge for not having found that the first respondent had not divorced the appellant in accordance with the Shia Ithnaasheri law on marriage and divorce. On the fifth ground the appellant criticized the trial judge for not rejecting a divorce certificate which was produced at the trial because it did not apply to the Shia Ithnaasheri Muslim Sect. The trial judge was criticized on the sixth ground for not ordering distribution of matrimonial assets as a logical consequence of his finding that there was a valid divorce. The appellant then prayed that if the Court allowed the appeal it should "enter the Trial Court shoes and award reliefs prayed for in the plaint". Alternatively, if this Court also found that there was indeed a valid divorce, then


order the division of matrimonial properties. Finally, she asked for costs both in this Court and in the trial court.

\ We have found it curious that since the appellant was disputing the claim by respondents that she had been divorced, she did not ask the trial court to grant a declaratory decree that her marriage to the first respondent was still intact and from such a declaration would follow such reliefs like the right to maintenance from and to cohabitation with the first respondent. Be it as it may. We now wish to consider the most crucial question whether there had been a valid divorce from the first respondent.

It is noted that the first respondent who was said to have divorced the appellant did not give evidence at the trial. Assuming he was bed-ridden, there could have been a request to the trial court to move to his bed to take his evidence unless he was too ill at the time to communicate by speech or even by gesture.


Of the respondents only the second respondent Amina Mohamedali Sewji gave evidence at the trial. The only other witness for the defence was one Himid Omar Khamis, a Sheha. According to hyperlink (DWl), the appellant was divorced on 16th September, 2003 but that seemed to be hearsay because she was then in Dar es Salaam. She claimed her father told her so, suggesting that the father could speak. A divorce certificate number 94 of 16th September, 2003 had been obtained and was tendered in evidence at the trial. Amina (DWl) further claimed that since the appellant had insisted that she should hear the talak from her husband, arrangements were made so that in the presence of an Immigration Officer, a Sheha, a Sheikh and the appellant, the husband pronounced talak three times. Later a Kadhi informed the appellant that she had been validly divorced but she insisted that she should be given a Shia divorce.

Himid Omar Khamis, the Sheha said he was present as a witness when the husband pronounced the talak. A Maalim Suleiman Khelef was also present. The husband signed a divorce statement.


A Kadhi at Kariakoo issued a divorce certificate. During all this, there is no mention of the appellant being present. But two weeks later, according to the Sheha, the divorce was disputed apparently by a Sheikh Abbas - "Sheikh Abbas was aggrieved with that talaka that it didn't follow the Shia procedure." The appellant was also aggrieved, according to the witness. On the instructions of an Immigration Officer another Immigration Officer accompanied the Sheha to the husband to ascertain if he had in fact given a talak. The husband then confirmed that he had divorced his wife.

It is pertinent that the appellant had all along disputed the divorce, insisting that it was not in accordance with the Shia sect procedure. The trial court said in this respect -

"Since there was evidence that the 1st Defendant (the husband) pronounced the divorce before the witnesses more than three times, the said divorce is valid . Whether the procedure was followed is immaterial . According to Islamic law as soon as the divorce is pronounced, it is a valid one


although each sect has got its own procedure of confirming the said talak."

It was not disputed that the couple were members of the Shia

\ Ithnaasheri sect of the Islamic religion. It is also apparent that the

divorce procedure which was followed was of the Sunni sect. Was it

correct, as the High Court Judge said, that the procedure did not

matter? That Islamic law provided that all that was needed was that

divorce should merely be pronounced thrice?

According to the Holy Qur-An (containing the Arabic Text with English translation and Commentary) by Maulvi Muhammed Ali, Second Edition, it is provided in Section 29, verse 229 as follows -

"229 Divoirce may be (pronounced) twice "

The book - "The Islamic Law of Personal Status" by Jamal J. Nasir, Second Edition (Arab and Islamic Law Series) the Sharia Law allows a marriage to be dissolved during the life-time of the parties in three forms -


(i) by the act of the husband or wife (talaq);

(ii) by mutual agreement (khula or

mubaarat); or

(iii) by a judicial order of separation in a suit by the husband or the wife.

The author says that there are three more forms which are described by the classical jurists, but have little practical relevance in modern days.

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