Court name
High Court of Tanzania

Ramadhani Said vs Mohamed Kilu () [1983] TZHC 31 (29 July 1983);

Law report citations
1983 TLR 309 (TZCA)
Media neutral citation
[1983] TZHC 31

Lugakingira, J.: In December 1978 the appellant contracted a customary marriage A with one Mwanaidi Mwiru and cohabited with her at her parent's home on payment of two head of cattle.  In May 1980 he left on a business safari to a place called Endasak.  In his absence, his in-laws were overwhelmed by greed.  On 9.7.80 they wedded B Mwanaidi to the respondent according to Islamic rites and received three head of cattle.  But this latter union did not endure.  In or about October 1980 Mwanaidi returned to her parents and there are indications that the respondent was refunded his cattle.
In November 1980 the appellant returned home and learnt of what had been happening C to Mwanaidi. He did not wish to litigate; instead, he proceeded to Mwanaidi's home, collected her and took her to his own home. In April 1982 the respondent sued the appellant in adultery claiming seven head of cattle. The Primary Court dismissed the suit. It held that there were two valid marriages but that the appellant's marriage being earlier, D took precedence. The respondent appealed to the District Court and this court has a different view.  It observed that Mwanaidi's marriage to the appellant had not been accompanied with "shangwe za harusi" whereas her marriage to the respondent was announced for 21 days and became public knowledge. In the view of that court it is the E second marriage which was thus valid. It therefore found adultery established and allowed the respondent's appeal. The appellant appealed here. The basic question before this court is, hence, which of the two unions was a valid marriage.
It all goes back to the definition of a marriage.  According to s. 9(1) of the Law of Marriage  Act, 1971 (hereinafter called the Act) a marriage means the voluntary union of F a man and a woman intended to last for their joint lives.  In this country, where the parties belong to a community or to communities which follow customary law, a valid marriage may be contracted according to the rites of customary law.  Failure to give notice of the intended marriage, absence of "shangwe za harusi" or any procedural G irregularity in the ceremony are not matters which would affect the validity of such a marriage if in all other respects it complies with the express requirements of the Act.  In this case, the appellant and Mwanaidi voluntarily contracted a marriage in customary form.  That was testified to not only by the appellant and corroborated by two other H witnesses, one of whom was the "mshenga", it was also confirmed by Mwanaidi who was called by the trial court.  She then added that her subsequent union with the respondent was forced on her by her parents.  On this evidence, I am of the view that the appellant's marriage was valid notwithstanding absence of notice or "shangwe za harusi".
On the other hand, our law does not permit polyandry but punishes it.  Section 15(3) of I the Act provides that no woman who is married

shall, while that marriage subsists, contract another marriage and under s. 152 (1) A thereof it is an offence for a married woman to be a party to a ceremony of marriage whereby she purports to marry another man.  In other words, in reference to the instant case, as long as Mwanaidi was still validly married to the appellant she could not contract a valid marriage with the respondent.  Neither the notice nor the "shangwe", not B even the certificate issued, could render valid that union with the respondent.  Besides, Mwanaidi was forced into it.  There was therefore no marriage with the respondent but he had risked being sued in adultery.
This is sufficient to show that the Primary Court had reached the correct decision although it did not direct itself correctly on the status of the two unions.  I consider it C unnecessary to go into the other features of the case.  The appeal is allowed with costs.
D Appeal allowed.

E