Luvuba, J.: This is a petition in which the petitioner one Basiliza Gobret Nyimbo is seeking the E marriage to be declared null and void, to be granted custody of the children, maintenance of the children by the respondent and condemnation of the respondent to pay the costs of the proceedings as well as other further reliefs as the court may deem just. As the respondent could not be served in the normal manner, substituted service was effected by F publication in the issue of the daily News. The petition was thus proceeded exparte in proof.
From what I have heard of the petitioner's exparte evidence as well as the petition itself supported by her affidavit, the G historical background of the matter can briefly be stated. That on 22nd May, 1965 the petitioner went through a Christian Marriage with the respondent at St. Joseph Cathedral Dar es Salaam. That at the time of that marriage H ceremony, the petitioner did not know that the respondent still had a subsisting marriage with another woman. That prior to that marriage the petitioner was made to understand that the previous marriage of the respondent to Alaneja had validly been dissolved. From the marriage with the petitioner, four children were born respectively in 1966, 1969, 1971 and 1973 by the names of Caroline, Antwelukye, Anna and Veri. The originals of the birth certificates' were produced in court for verification. It is further alleged by the petitioner that as from, 1971 on-wards, her I
A marriage with the respondent was unfortunately characterised with regular domestic problems and squabbles which according to the petitioner were attributed to the respondent's behaviour of drunkenness and involvement with other women. In such predicament, the petitioner found out from the Registrar of Marriages that the respondent's previous B marriage which had been officiated in a Christian Lutheran Church in Dar es Salaam on 13th December, 1959 had not bee validly dissolved. The said previous marriage of the respondent to one Alaneja Mtekele was purported to have been dissolved before a Kadhi on 8th May, 1965 in Dar es Salaam. With such finding on the part of the petitioner in regard to C the marriage between the respondent and the said Alaneja Mtekele, the petitioner decided to leave the matrimonial home. She has since been living on her own together with three of the children of the marriage as the fourth child has lately been staying with the respondent attending school. On the basis of such evidence, Miss Mlaki learned counsel from D the Tanzania Legal Corporation who appeared for the petitioner argued that as the petitioner at the time of their marriage was not aware of a subsisting marriage, the marriage between the petitioner and the respondent was a nullity. Miss Mlaki's submitted further that prior to the enactment of the Law of Marriage Act, 1971, a civil marriage could only be dissolved validly by the High Court in which case the respondent's purported dissolution of his christian monogamous E marriage before a Kadhi was of no legal validity. The respondent having gone through a ceremony of marriage with the petitioner at a time when there was an existing marriage with Alaneja, such a marriage was a nullity under Section F 38(1)(c) of the Law of Marriage Act, 1971, it was submitted by learned counsel Miss Mlaki. She urged the court to declare the marriage a nullity and grant the custody of the children to the petitioner as well as providing for the maintenance of the children by the respondent. G
In regard to a void ceremony of marriage, section 38 (1)(c) of the Law of Marriage Act, 1971 provides:
H ... A ceremony purporting to be a marriage shall be a nullity if either party is incompetent to marry by reason of an existing marriage.
Kadhi as defined under Section 2 of the Law of Marriage Act, 1971 means a Muslim priest or preacher or a leader of a I Muslim Community who has been licenced under the Act to celebrate
A marriages in Islamic form. From this definition, it is quite clear that a Kadhi is properly authorised under the law to officiate in marriages of Islamic form. In other types of marriages he has no power to officiate. In the instant application, B from the ex parte evidence, the marriage of the respondent to Alaneja was Christian in form. Such a marriage could not validly be dissolved before a Kadhi as the respondent purported to do on 8th May, 1965. The purported dissolution was of no legal validity. The marriage and indeed civil marriages as a whole could validly be dissolved at that time by the C High Court as provided for under Section 2 of the Matrimonial Cause Ordinance, Chapter 364, of the Laws which was repealed by the Law of Marriage Act, 1971. In these circumstances, with a futile dissolution of the marriage between Alaneja and the respondent before an improper minister of religion, the Kadhi, the respondent was incompetent to marry D by reason of the said existing marriage. That being a Christian, monogamous marriage, the respondent could not legally undergo another ceremony of marriage as he did with the petitioner on 22nd May, 1965. As rightly submitted by Miss Mlaki, the subsequent marriage of the respondent to the petitioner was therefore in my view, not only void but a nullity on E account of the existing undissolved previous marriage of the respondent to Alaneja.
In the result, from the ex-parte evidence as adduced by the petitioner in addition to her affidavit as well as the submissions made on her behalf, I am inclined to believe that her claim in the matter is sufficiently credible and would F accordingly allow the petition with the following attendant order as prayed:
1. The marriage celebrated between the Petitioner and the respondent on 22nd May, 1965 illegally is declared null and void.
G However, with such finding and the resulting declaration of the marriage as null and void, that would not mean the end as well of the responsibility over the children born of the marriage, on the part of the parents. It is common knowledge H that in any proceedings for divorce, nullity or judicial separation, on conclusion of such proceedings, one aspect of paramount concern to the court is to ensure that satisfactory arrangements are made for the care and welfare of the children born of the marriage until they reach the age of 18. Therefore, the question of the maintenance of the children is I unavoidably the responsibility of the parents and the marriage having
A been a nullity is no valid excuse for evading this onerous task. Section 129 of the Law of Marriage Act 1972, provides specifically on the duty to maintain the children. Under this provision, unless it is otherwise provided by agreement, it is the duty of the father of the children to maintain the children whether such children are in his custody or B the custody of somebody else. In this petition, evidence has been led to show that except for a short period lately when the 3rd born of the marriage has been taken in the custody of the respondent attending school, the rest of the children have otherwise been in the custody of the petitioner. Consequently, as the petitioner has applied to be granted the C custody of the children, I am satisfied that it is in the interest and welfare of the children to make the following orders as well.
II. Except for Coroline who was born in 1966 and is at liberty to chose, custody of the other children Atwelukye, Anna and Veri is granted to the petitioner with reasonable access to the respondent. D
III. The respondent to pay maintenance for the Children in arrears from 1975 to the date of judgment at the rate of 1,500/= per month and thereafter at the end of every calendar month i.e. 30th through the court. E
IV. The respondent to pay the costs of this petition.
F As for the distribution of the property which was jointly acquired during the purported marriage, such an aspect though it was referred to by the petitioner at the hearing of the petition was however not specifically pleaded and brought out in the petition. This valid though it may well be, is fundamental issue which should be taken up right from the time when the G petition is filed. Among other reasons, this is due to the fact that if a fundamental issue is taken up from the time the petition is initiated the respondent is afforded the opportunity to know of it in advance and in that way he would have H had the chance of raising any defence on the matter if any. I would therefore not pursue it any further at this stage.
Order accordingly. I
A