Mnzavas, J.K.: The petitioner, Pulcheria Pundugu, and the respondent, Samweli Huma E Pundugu, were married in church on 19/2/64. The union is blessed with five issues. Now the petitioner is petitioning for divorce alleging adultery and cruelty on the part of her husband, the respondent. In her petition as F well as in her evidence she said that the respondent always neglected and abused her. According to her testimony their quarrels came to a climax in October, 1979 when the respondent forced her out of the matrimonial home.
The Court was also told that in January 1981 while they were living in separation the respondent brought another G lady into the matrimonial home and that the respondent has since been living in adultery with this other lady.
It was also her testimony that the respondent has not maintained her and the children (who are living with her) from 1979. According to her evidence during their married life they acquired a farm at Magogoni where they H erected a house, bought a house near Drive Inn Cinema and built a house in Bariadi.
The petitioner prayed that the marriage be dissolved, that she be given custody of all the children, that the respondent be ordered to maintain her and the children and that she be given part of the property she alleges was jointly acquired during the subsistence of the marriage. I
In his defence the respondent argued that the petitioner left the
matrimonial home on her own accord and that he did not drive her out of the house. He also told the Court that A he started living with another woman a year after the petitioner had left him.
It was his defence that for eight years they lived happily but that after this period matrimonial friction started. He told the court that the petitioner became unco-coperative, extravagant and that he could no longer trust her with B money as she had started business without his knowledge.
As for the property alleged by the petitioner to have been jointly acquired during the subsistence of the marriage it was respondent's defence that he acquired all the property single handed and that the petitioner did not C contribute to their acquisition. As to petitioner's argument that he has not provided maintenance for her and the children, the respondent said "all along I wanted to maintain the children but she refused. She gave me the impression that she had the means to support them. Before we came to court I had asked her what amount of D money she needed from me as her maintenance and the children and she said that she did not want any money".
Then the respondent finally said that he did not see any reason why he should maintain the petitioner bearing in mind that her income is bigger than his. E
From the evidence of the petitioner and respondent's defence there is no dispute that the respondent had willing sexual intercourse with one Penina Mkoma while the marriage between him and the petitioner was subsisting. This was adultery by the respondent and therefore a matrimonial offence under section 107(2)(a) of the Law of F Marriage Act No.5 of 1971. As a result of respondent's adultery with the said Penina two children have been born.
The parties have lived in separation for over five years now and if the evidence of the petitioner is anything to go by, and bearing in mind respondent's adultery, the respondent is to blame for the separation. G
Taking into regard all the evidence tendered before me and the conduct and circumstances of the parties it is clear that there is no more love between the parties. The marriage between the parties has not only broken down but has broken down irretrievably.
That being the position it will serve no useful purpose for the union to continue. It is therefore ordered that the H marriage between the parties be dissolved; and it is hereby dissolved.
As for the question of custody of the children, they have been living with their mother from 1979. When cross-examined by the learned counsel for the petitioner on the question of custody the respondent replied - "I did not seriously object to their going to live with their mother" In para 9(b) of his reply the respondent has no I objection that the
petitioner be given custody of the children under the age of eighteen but on condition that he be allowed to have A reasonable access to them.
In deciding in whose custody an infant should be placed the Court is required (under section 125(2) of the Law of Marriage Act) to take into account the paramount consideration regarding the welfare of the infants. The B Court is also required to have regard to the wishes of the parents of the infants.
In the present case, and as I have already mentioned above, the respondent does not insist that he should be given custody of the children. Indeed, he has no objection to the petitioner's claim that the children be in her custody. C
I accordingly order that the two infants Jane Pundugu and Agnes Pundugu who are below eighteen years of age be in the custody of their mother, the petitioner. As the other three children are over eighteen years the question of custody does not in law apply to them. D
I now come to the difficult question regarding distribution of property. As I have already mentioned above the applicant argued that she contributed in the acquisition of the property namely - A house in Magogoni and a farm, E a house at Drive Inn Cinema Dar es Salaam, and a house in Bariadi, Shinyanga region. The respondent on the other hand countered that he acquired the said property with his own resources and that the petitioner contributed nothing in the acquisition of the property. In support of the argument that the petitioner is entitled to a share of the property the learned counsel for the petitioner argued that even if the petitioner did not contribute in F way of money in acquiring the said property, she was, it was submitted, entitled to a share of the property by the mere fact that she was wife of the respondent and contributed in the maintenance of the matrimonial home. In support of this argument the Court was referred to the decision by the Court of Appeal in Civil appeal No.9 of 1983 - Bi Hawa Mohamed v Ally Seffu. G
As regards the argument that in this case the Court should decide the question of distribution of the assets taking into account Sukuma customary law, Mr. Kesaria submitted that in a conflicts case the Court is required to decide the case on the basis of policy and justice. In support of this argument the decision in Ramadhani s/o H Bakari v Kichunda Mwenda and Another [1973] L.R.T.33 was quoted. The Court was also referred to the decision of this Court in Mbaruku v Chimonyogoro [1971] H.C.D. 406.
In rebuttal Mr. Mkono argued that the case in Bi Hawa Mohamed v Ally Seffu has no relevance on the facts of I this case. It was submitted that in Bi. Hawa's case the wife was a mere house wife and therefore did house work which could have contributed towards the acquisition of the
assets. In the present case it was argued that the petitioner has since her marriage been working and that she A kept her income to herself. It was argued that the petitioner did not contribute towards acquisition of the property. It was also argued that under Sukuma customary law matrimonial property remains with the husband B and that in deciding the question of distribution of the assets the Court should have regard to the customs of the community to which the parties belong. In support of this argument section 11(2)(a)of the law of Marriage Act was referred to the Court.
It is now settled law after the decision by the Court of Appeal in Bi. Hawa's case and the commentary by C Professor Rwezaura in his paper - Division of Matrimonial Assets under the Tanzania Marriage Law, that the principle underlying division of property is one of compensation, it does not make any difference whether what is being compensated is direct monetary contribution or domestic services. D
As argued by Professor Rwezaura at page 6 of his paper, and, in my view, rightly so, "the legal principle on which division of matrimonial assets is based is one of giving recognition to the contribution of the spouse towards the acquisition or enhancement of value of the particular property".
It is not all in dispute that the property (three houses) at Bariadi, Magogoni and at Drive Inn Cinema area were E acquired during the subsistence of the marriage.
Respondent's argument was that despite the fact that they were married about twenty years ago and that the property was acquired during the life of their union the petitioner did not contribute anything towards acquisition F of any of the property. It was also respondent's argument that as he is a Msukuma, a wife is not, under Sukuma customary law, entitled to a share of property (jointly acquired during the subsistence of a marriage) in case of a divorce.
It may have been Sukuma custom that a divorced wife is not entitled to a share of matrimonial assets jointly G acquired during the subsistence of the marriage; but with due respect to the learned counsel for the respondent such customary law is no longer valid after the enactment of the Law of Marriage Act - No.5 of 1971. Of course section 114(2)(a) says that in dividing assets under section 114(1) the Court shall have regard "to the H custom of the community to which the parties belong". But that does not mean that the petitioner is not entitled to a share in the assets. Indeed even if, for the sake of argument, the customary law argument was to be accepted, it is a fact that the parties are of different customs. The petitioner is a Chagga whereas the respondent is a Sukuma. In such cases, as was the case in Re - Innocent Mbilinyi's Administration of Estates - [1969] H.C.D. 283, the petitioner can reasonably be said I
to have abandoned his Sukuma mode of life in favour of a non-traditional way of life. A
The argument that the petitioner did not contribute anything towards acquisition of the said property is, I agree with the learned counsel for the petitioner, hard to believe; bearing in mind that the parties have lived together as B husband and wife for about twenty years - Both of them apparently all the time engaged in salaried jobs.
On the facts of this case I am inclined to believe the petitioner when she says that she contributed in the acquisition of the assets over and above her contribution in the day to day caring of the children and domestic duties. C
According to the evidence of the respondent when cross-examined by learned counsel for the petitioner the house at Drive Inn Cinema area is worth about Shs. 300,000/=; that at Kigamboni is estimated at Shs. D 200,000/= and the one at Bariadi was built at a cost of Shs. 40,000/= ten years ago. There is a developed shamba of about eleven acres at Magogoni. There are sixteen head of cattle, thirty goats and three sheep.
As to how much each of the parties contributed in acquiring these assets is difficult to say with any amount of certainty. It is however not in dispute that the respondent's monthly salary has always been much far bigger than petitioner's. E
Taking into account this fact there can be no doubt that petitioner's contribution in the acquisition of the property is less than that of the respondent. Doing the best I can and taking into account the fact that the petitioner will F have the burden to house the two infants -Jane and Agnes and the further fact that the other children have always been living with her, ends of justice demand that she gets one of the three houses as her share of the assets jointly acquired during the subsistence of the union.
Bearing in mind that one of the houses is at Bariadi, Shinyanga region, and the second house is at the Magogoni G farm where the respondent is residing and is running business, it will be convenient to both parties for the house situated near Drive Inn Cinema be awarded to the petitioner. It is so ordered. Coming to the question of maintenance it is not disputed that the respondent has not been maintaining the petitioner and the children since 1979. All this time the petitioner has been providing for the children and employing an ayah to take care of the H mentally retarded child.
The respondent argued that he offered to provide maintenance but that the petitioner declined to accept the offer. I am far from being persuaded by respondent's argument. I know of no wife with five children who would refuse I maintenance from a husband. Bearing in mind that the petitioner had to pay an ayah to take care of the retarded child as well as
maintaining herself and the other children but of course not forgetting that the petitioner had an independent A income from her salary; it is my view that a monthly maintenance of Shs.1000/= would have been reasonable for the period they lived in separation. She is therefore entitled to arrears of maintenance of Shs.1000/= monthly for the period of five years of separation. This comes to Shs.60,000/= arrears of maintenance. B
As for the coming years and bearing in mind that the respondent has since retired from Government Service and the further fact that the petitioner is in receipt of Shs.2700/= monthly gross salary, the burden of maintenance of C the two infant children will have to be the responsibility of both parties. The respondent is to pay Shs.800/= monthly towards maintenance of the two children. I make no order as to costs.
Order accordingly.
D