Court name
High Court of Tanzania

Zaina Ismail vs Saidi Mkondo () [1984] TZHC 10 (10 April 1984);

Law report citations
1985 TLR 239 (TZHC)
Media neutral citation
[1984] TZHC 10
Coram
Kapoor, Ag. J.

Kapoor Ag. J.:  Appellant was sued by the respondent who claimed custody of his child born to the appellant on 25/2/1982.
The parties had lived together for nearly 5 years - but they were not lawfully married. D The District Magistrate, in a very well written judgment gave custody of the child to the respondent.  His reasons for reversing the judgment of the Primary Court were that anyone who sires a child adulterously cannot be held to claim the child.
The District Magistrate reasoned that since the parties had lived together for nearly 5 E years, as husband and wife, they were to be treated as duly married.  The authorities that he cited, were relevant to those parties who were lawfully married.  With respect to the District Magistrate, I cannot agree with his reasoning, which made him to consider that the respondent and appellant were lawfully married.  Under the Law of Marriage Act, F parties can raise a rebuttable presumption of marriage if they were staying together - for a period of over 2 years, in such circumstances as to have acquired the reputation of being husband and wife.
This presumption may be rebutted if it can be proved that the parties had never gone G through a ceremony of marriage recognised under the Act: Francis s/o Leo v Paschal Simon Maganga [1978] LRT n.22.
The intention of the legislature under section 160(1) of the Law of Marriage Act is not to give a general licence of Legal Marriage Status to parties who live together for two years H and above in such circumstances.  The Law of Marriage Act lays down strict procedure through which a man and woman capable of contracting a marriage can contract a valid marriage.  Section 160(1) of the Law of Marriage Act only creates a rebuttable presumption of Marriage.  It does not create another method of contracting a I Lawful Marriage under the Act.

Hence it can be clearly stated that the only method of contracting Lawful Marriage in A Tanzania is by following the laid-down provisions under Part II of the Law of Marriage Act. In this case the parties themselves agree that they have not been lawfully married.  They just lived together.  The rebuttable presumption is  adequately rebutted by the parties themselves.  The Primary Court Magistrate had framed this question as an issue B No. 4 and reached the conclusion that the parties were not lawfully married; they were just living together.
Accordingly, the cases cited by the District Magistrate are not relevant to the circumstances of this case.  The respondent was not lawfully married to the appellant; C hence the appellant's child born to the appellant on 25/2/82 is an illegitimate child.  The  respondent could have legitimated this child before it weaned under Rule 181 of G.N. no. 279 of 1963.  This the respondent has not done and it is too late in the day now for him to claim this child from the appellant.
I therefore, allow this appeal and grant custody of the child to the appellant.  Respondent D to pay appellant's costs of this Court and courts below.
Costs of this appeal are fixed at Shs. 268/= inclusive of court fees paid. E
Appeal allowed

F