Halima Athumani vs Maulidi Hamisi [1991] TZHC 29 (2 December 1991)


Mwalusanya, J.: The appellant Halima d/o Athuman successfully applied for divorce at Utemini Primary Court in Singida District, against her husband Maulidi s/o Hamisi the present respondent. She sought divorce on the ground E of cruelty on the part of her husband. The trial court was satisfied that the husband had treated his wife with cruelty and hence the dissolution of marriage that was made. However the husband successfully appealed to Singida District Court. That has prompted the wife to appeal to this court.
F It was common ground at the trial that the spouses in this case had contracted a Moslem marriage in 1983. The wife alleged at the trial that in the course of years he was regularly assaulting her and many times has threatened to kill her with a panga. She also alleged that at one time she was locked inside their house while the husband went on G safari. That was confirmed by a witness Mr. Hassan s/o Njiku (PW2). She also alleged that her husband insisted to have sex against the order of nature but that she vehemently resisted. Efforts to have the spouses reconciled at the Arbitration Tribunal proved abortive.
H The District Court reversed the decision of the trial court first on the ground that:
As both parties belong to an Islamic community and their marriage was according to Islamic law, the proper board to I reconcile them was a board of Islamic community.

The learned District Magistrate therefore held that since the board was not in accordance with section 103(2)(b) of A the Law of Marriage Act. No. 5/1971, therefore there was no reconciliation ever made. On my part I find that the learned District Magistrate was wrong. It is provided under section 104(7) of the Law of Marriage Act that:
The proceedings of a Board shall not be invalid by reason only of the fact that it did not have jurisdiction under section 105(2). B
Therefore the mere fact that it was not the Moslem Conciliatory Board that reconciled the parties, that does not C render the reconciliation a nullity. An ordinary Marriage conciliatory Board can perform those functions and that would be effectly alright. And it is doubtful if in Singida Township there is a proper Moslem Conciliatory Board which has been established in accordance with the complicated provisions enumerated in item No. 345 of D Appointment of Communal Conciliatory Boards G.N. 245 of 1971. Most likely the existing local Moslem conciliatory Boards in Singida Township have not registered with the Registrar of Marriages and Divorces in accordance with G.N. 245/1971, but nevertheless their functions are properly protected by section 104(7) of the E Law of Marriage Act. Therefore I hold that the Marriage Conciliatory Board in this case had jurisdiction to reconcile the parties. Then the learned District Magistrate went on to say that: F
Again even if the board was the proper board according to law to reconcile the parties, but it has not certified that it has failed to reconcile the parties. As I have gone through the contents of the letter dated 28/9/88 and I have found that only the petitioner had gone to the board with her present but appellant was not called and given an opportunity of being heard in G accordance with section 104(1) of the Law of Marriage Act.
The letter referred to above is dated 28/9/88 and it is issued by the Chairman of the Kibaoni Marriage Conciliatory H Board. I agree with the learned District Magistrate that as the husband was not given an opportunity of being heard, then there was no proper reconciliation by the Board. The position is that the matrimonial difficulty is regarded not to have been referred to any Marriage Conciliatory Board. I

A However that is not the end of the matter. The learned District Magistrate should have considered the applicability of the provisions of section 101(f) of the Law of Marriage Act which dispenses with referring the matter to the Marriage Conciliatory Board where the court is satisfied that there were extraordinary circumstances which B make reference to the Board impracticable. That phrase was considered by Onyiuke J. in the case of Zainat Khan v Abdullah Khan [1973] L.R.T. n. 57. The learned judge, inter alia said:
C The discretion conferred on the Court by paragraph (f) of section 101 should only be sparingly exercised and then only in circumstances where it is clear beyond any reasonable doubt that a reference to a Board is not a practical proposition. This may be due to the fact that the circumstances of the case are such that no expectation can be entertained that the Board will D be able to achieve any useful results and that any reference to it will be so much a waste of time and effort.
Thus "impracticable" in section 101(f) of the Law of Marriage Act was liberally interpreted such that it was not E limited to physical impracticability. Reading through the letter of the chairman of Kibaoni Marriage Conciliatory Board, one cannot fail to see that it was found useless to call the husband and for reconciliation as it would be a waste of time and efforts. The allegations were so serious such that any reference to the Board would not be a F practical preposition I think the trial court took it that way. Therefore the trial court was right to proceed to hear the case, even if it had not been referred to the Marriage Conciliatory Board. And I agree that the petitioner had succeed to prove that her marriage was broken down beyond repair. On my part I concur with the trial court in G dissolving the marriage in questions.
There is another matter which the learned District magistrate missed. Under the Law of Marriage Act, there are two ways in which Moslem spouses may seek dissolution of the marriage. The first method is the fashk divorce as H provided in section 107(1) and (2) of the Law of Marriage Act whereby a Moslem, like any other spouse, sets out to prove that the marriage is broken down beyond repair by either cruelty, adultery etc. This method applies to all spouses who are Moslems or non-Moslems.
Then there is the second method for Moslems only, which makes it easier for them to secure divorce. It is provided I under section 107(3) of the Law of Marriage Act that - subsequent to the granting

by the Board of a certificate that it has failed to reconcile the parties either of them has done any act or thing which A would, but for the provisions of this Act, have dissolved the marriage in accordance with the Islamic law. Thus if the Board has failed to reconcile the parties, a Moslem spouses can proceed to demand a khului before a Sheikh (a wife securing her release through payment of a sum of money) or she can ask the Sheikh to grant divorce mubaraat B (mutual consent of spouses to divorce).
For a male Moslem he can issue three talaks. After getting the Khului, or divorce mubaraat or three talaks, then the concerned Moslem merely goes to court to have his divorce officially registered without requiring him or her to C prove that the marriage is irretrievably broken down. Therefore the learned District Magistrate should have so advised the parties. I hope in future she will not fail to advise the Moslem women, the easy way of securing divorce.
Be that as it may, the appeal succeeds. I allow the appeal with costs. The decision of the District Court is set aside, D while that of the trial court is restored.
Order accordingly. E


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