Lugakingira, J. The parties herein married in 1972 and cohabited until 1974 when the B respondent left the appellant. They then had one child which the respondent took along. In the course of the separation she adulterously begot two more children which were acknowledged to be the appellant's. In 1982 she petitioned for divorce. It was granted due to the longevity of the separation but the trial court held that the respondent C was guilty of desertion. In granting divorce the court also granted custody of the two elder children to the appellant. The youngest was left to the respondent and the appellant was ordered to provide maintenance for it. D
Soon after the conclusion of the divorce suit, and it seems consequent upon the respondent being deprived of the custody of the two elder children, the respondent commenced the present proceedings claiming compensation of Shs. 4,000/= for having maintained those children. The trial court dismissed the claim, observing that she was the guilty party in the E break up of the marriage. She appealed to the District Court. That court took a different view and did so it the following terms:
takribani, matunzo wakati familia iko kukeni ni juu ya mume bila kujali ni nani F mkosa(ji) au mtu aliyesababisha utengano huo.
The court then went on to observe that the obligation to maintain children rested on both G parents and, therefore, awarded the respondent Shs.2,000/=, half the amount she had claimed. From that decision the appellant brought this appeal.
I should perhaps first say a word in passing on the respective duties of parents with regard to the maintenance of their children. It seems to me that in normal circumstances H the duty to maintain infant children is the duty of the father alone. I believe that this is the correct interpretation to be put on subsection (1) of s. 129 of the Law of Marriage Act, 1971. For that duty to shift to the mother, wholly or in part, it seems that the conditions set out in subsection (2) must arise, namely, the father must be dead or his I whereabouts must be unknown or he must be, and to the extent that he is, unable to provide maintenance. I take that view having regard to the fact
that the provisions of subsection (2) are expressed to be subject to the provisions of A subsection (1). It is therefore suggested that except where the provisions of subsection (2) can be brought into play, there would be no legal justification for apportioning liability.
The question in the instant case is whether on the facts and circumstances as found by B the trial court the respondent was entitled to any compensation. The authorities and the statutes appear silent on the matter. I think, therefore, that equity or common sense should be able to provide the answer. It does not occur to me that customary law lacks a concept the equivalent of volenti non fit injuria or la kujitakia halina majuto. There are strong reasons to hold that such a concept is recognised and, by way of C illustration, I need go not further than refer to para 74, G.N. No. 279 of 1963, which bars maintenance to a divorced woman where the divorce is brought about by her own guilt. The principle behind this is that a party should not be rewarded for his own wrong. D It similarly follows, in my view, that a woman cannot claim or receive compensation for maintaining a child she has wilfully removed or kept from the father's custody, and I therefore differ with the learned appellate magistrate in his statement quoted above. To put it differently and shortly, a woman should not claim or receive compensation for a E burden wilfully incurred. It was on that principle that the Primary Court reached its decision, although citing irrelevant provisions. Since the respondent was a wilful deserter, and took or kept the children in those circumstances, that decision was manifestly sound.
I will accordingly allow this appeal, as I do, and set aside the award of the District F Court. Since I do not know the respondent's means, there will be no order as to costs.
Appeal allowed.
A