Julia Mazengo vs Jackson Leganga [1987] TZHC 29 (1 September 1987)


Samatta, J.: This is an appeal from a decision of the District Court of Mpwapwa District whereby a decision of the Primary Court of Zoissa dissolving the parties' marriage was set aside. G
Having given the case anxious and, I hope, careful consideration, I have reached the settled opinion that the appeal must be allowed.  The appellant based her prayer for a decree of divorce on the ground that quite often the respondent used to subject her to violence.  In his evidence the respondent asserted that he beat up the H  appellant only on one occasion; he asserted that he did so because she provoked him.  The Primary Court analysed the evidence at length and came to the conclusion, among others, that the appellant had established that the respondent had assaulted her on three (separate) occasions.  The district Magistrate was unable to uphold I  this finding.

In his opinion, the appellant had proved only two instances of assault.  The magistrate went on to say: A
   ... The basic question in this case was whether: If a husband is guilty of assaulting his wife twice, would that (on its own) B  entitle a court to hold that the marriage has irreparably foundered and consequently tear the marriage vows apart? In my considered view, I think it would not.  Admittedly, no persons has any right to assault his or her spouse - (although s. C  66 of the Act speaks of the infliction of corporal punishment).  However, I do not think that if a person is found guilty of assaulting his spouse twice, and such assaults are not serious, that would make a court of law conclude that the marriage has irreparably broken down.  As it was rightly observed by Lord Denning, L.J. (as he then was) Married couples D  have to put up with all vexations, the quarrels, and the troubles which are ordinary incidents of married life.  They have taken each for better and for worse.  They must put up with temperament and defects of character of each other.  But there E  may come a time when defects of character or temperament may be such as to amount to cruelty, but it all depends on the facts of the (See the case of Mc Ewan v Mc Ewan (1946) 108 So. Jour. 198).  Similarly, it is common ground to expect misunderstanding in the married life - which may culminate in person assaulting his or her spouse.  If such incidents F  occur - and a person twice assaults his or her spouse - I do not think that that alone would be sufficient to justify a reasonable tribunal to conclude that the marriage vows have been torn apart beyond repair.  A marriage bond or contract G  (for that matter) - sanctity as it is should not be set aside lightly; in the absence of evidence that the same has foundered beyond repair.
While I entirely agree with the District Magistrate that a marriage bond should not be set aside lightly, I am unable H  to share his view that the Primary Court strayed into an error in holding, as it did, that the appellant had established that she had been subjected to violence on three occasions.  The Primary Court's finding was founded upon the evidence of the appellant as corroborated by the testimony of Thadayo Mkoi, a Church I  Councillor, who told the trial court that the respondent admitted before the Church Council to have assaulted the appellant on three occasions.  I also disagree

with the District Magistrate on his finding that the parties' marriage has not irreparably broken down.  There can A  be no doubt that at least on two of the three occasions the assaults were serious ones.  One of those occasions was referred to by a member of a local Reconciliation Board, Afoniso Shauri.  The witness told the trial court this
   Nakumbuka mdai ndiye aliyekuja kushitaki kwamba amepigwa na Bwana wake (mdaiwa).  Bwana wake akaitwa akaja B  hapo akakana kwamba hakumpiga ikabidi huyu mdai apate barua aje kwenye hospitali alivyokuja akachunguzwa C  akaonekana alipata maumivu kwenye mkono wa kulia na alivimba kwenye Bega na jicho la mkono wa kulia lilikuwa lekundu ndipo hapo akakubali mdaiwa kwamba kweli alimpiga mdai...
The second occasion was when, according to the appellant's evidence (which was not challenged on the point), D  the assault was perpetrated when the appellant was nine months pregnant.  In my opinion, the Primary Court was right, when these assaults are considered in the light of the general atmosphere prevailing at the matrimonial home (described by the appellant in her evidence and to a limited extent admitted by the respondent), to hold, as E  it did, that the parties' marriage had irreparably broken down.  The ill-treatment which the respondent has been subjecting the appellant to cannot, in my considered opinion, be described as the reasonable wear and tear F  of married life.  The law does not expect a wife to put up with the kind of ill-treatment the respondent has been subjecting the appellant to.  I would allow the appeal.
The appeal is allowed, the decision of the District Court is recalled and that of the Primary Court restored.  The appellant will have her costs in this Court as well as in the two courts below. G
Appeal allowed.
1986 TLR p247

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