Court name
High Court of Tanzania

Mwinyihamisi Kasimu vs Zainabu Bakari () [1985] TZHC 43 (31 December 1985);

Law report citations
1985 TLR 217 (TZHC)
Media neutral citation
[1985] TZHC 43
Coram
Sisya, J.

Sisya, J.:  The appellant and the respondent went through a B ceremony of marriage under Islamic rites on 13th November, 1967.  During their thirteenth year of peaceful cohabitation a rift appeared in the union.  After making unsuccessful attempts at reconciliation the respondent, eventually, went to Usambara Primary Court of Tanga District and petitioned for divorce.
The petition which the respondent filed in the Court of first instance is not dated, nor C does it show the date of presentation or filing.  From an endorsement (the first one in the record of proceedings) in the case file it appears that the latter was done on 25/9/81.  Be it as it may the grounds raised by the respondent in her petition for dissolution of the D marriage were two fold, namely cruelty both mental and physical, inflicted by the appellant on her and wilful neglect on the part of the appellant.  In support of her claim the respondent who, incidentally, was the only witness on her side swore that there was no understanding of each other between herself and the appellant; that the appellant used to attack her, presumably physically, often; i.e. the appellant, used to pour abuses on her E including accusations that she was having incestuous relations with her own brother; and that he was not providing her with necessaries of life.
The appellant contested the petition and he denied the respondent's allegations.  According to him he did everything that he could to please the respondent but the latter F would not care a jot.  He provided her with necessaries of life.  The only exception was when the respondent deserted the matrimonial home.  According to the appellant he suspected that there was a man behind the misunderstandings in their marriage.  He concluded by saying that he, nevertheless, was in love with his wife, the respondent.
By a majority decision the Court of first instance found that the respondent had failed to G prove her allegations and consequently establish that the marriage between herself and the appellant had irretrievably broken down.  The Court, therefore, dismissed the petition.  Aggrieved, the respondent appealed to the District Court.
The learned Principal District Magistrate on first appeal directed himself in the following H terms and I quote from his judgment:
   Nimechunguza kwa makini ushahidi wote uliotolewa mbele ya Mahakama ya Mwanzo, Mwomba rufaa (i.e. the respondent in this instant appeal) hakuthibitisha hata moja ya sababu I alizotoa na kutaka kuachana.

The learned Principal District Magistrate dismissed the respondent's appeal.  However, A before proceeding to do so the learned Principal District Magistrate had the following to say and, again, I quote from his judgment:
   Kwa kuwa ndoa yao lilifungwa kwa mujibu wa dini ya Kiislamu, na kwa kadiri mambo yalivyo, B Mwomba rufaa anaweza kupata talaka kwa kujigomboa (khului) kama ilivyo katika kifungu cha 107(3)(c) cha sheria ya ndoa.  Mpaka atakapofanya hivyo ndoa yao inabaki pale pale haiwezi kuvunjwa. C
Judgment was delivered by the learned Principal District Magistrate on 26/6/82 in the presence of the respondent but in the absence of the appellant.
As can be gleaned from the record of proceedings of the District Court, on 13/9/82 the respondent appeared before the learned Principal District Magistrate and made an D exparte application to redeem (kujikhului) herself by returning the dowry which the appellant had paid.  The respondent is recorded to have stated before the learned Principal District Magistrate that she had looked for her husband, the appellant, but failed to trace him.  The learned Principal District Magistrate then, with respect, E perfunctorily, ordered as follows:
   Amri:  Kwa kuwa jitihada za kumtafuta mumewe zimeshindikana na mke hana budi kuachwa kwa hali ya mambo yalivyo kufuatana na sheria za kiislamu.  Mke ajigomboe kwa kulipa F khului inayolingana na mahari yaliyotolewa ambayo ni shs. 150/=.  Fedha iwekwe amana mahakamani hadi mume atakapojitokeza.
Despite the allegation that the appellant was nowhere to be seen he came to know about G the order.  He was dissatisfied and hence this present appeal to this Court.
In his reasons of appeal the appellant asserts that it is not true to say that he was nowhere to be seen and quotes that all process from the Court of first instance were being served on him without difficulty.  The appellant complains that the learned Principal H District Magistrate erred on the issue of redemption (khului) and he further urges the Court to make an order against the respondent for restitution of conjugal rights.
This being a second appeal it can, therefore, only be entertained on a point or points of law.  The learned Counsel for the respondent, Mr. Haule, argued that both Courts I below erred in failing to find that the

marriage between these parties had irreparably broken down because the appellant is a A poor man and, therefore, he cannot afford to support the respondent and further that there was evidence of abuses and insults uttered by the appellant which amounted to cruelty.  All these are matters of fact for which, with the greatest respect to the respondent's advocate, this Court has no room for consideration at this time. B
On the other hand there are points of law involved in this appeal and these centre on the interpretation of section 107(3)(c) of the Law of Marriage Act, 1971, and on the issue of Redemption (Khului).  It seems to me that the learned Principal District Magistrate C completely missed the import of s. 107(3)(c).  One of the reasons why he did so is, I think because he read Paragraph (c) separately from the rest of sub-section (3).  In fact sub-section (3) of section 107 must be read together and not in parts in order to comprehend the same.  To begin with section 107 of the Law of Marriage Act, 1971, deals with evidence that a marriage has broken down.  Sub-section (3) reads: D
   (3)  Where it is proved to the satisfaction of the Court that -
   (a)   the parties were married in Islamic form; and
   (b)   A Board has certified that it has failed to reconcile the parties; and E
   (c)   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 would, but for the provisions of this Act, have dissolved the marriage in accordance with the Islamic law, the Court F shall make a finding that the marriage has irreparably broken down and proceed to grant a decree of divorce.
There are three conditions here all of which must be satisfied before sub-section three can be invoked or before it comes into play. G
Taking the present case as an example, it was established that the parties were married in Islamic form.  This satisfies Paragraph (a).  That is, however, not the end of the story.  We move to the next stage and that is Paragraph (b).  A Bakwata conciliatory Board did certify in this instance that it had failed to reconcile the parties.  Mention should H perhaps be made that the certificate under reference here is the same as that mentioned in section 101 of the Marriage Act.  Then, finally, comes the paragraph under querry, i.e. Paragraph (c).  What it, i.e. Para (c), stipulates is that if,after the Board has already issued a certificate that it has failed to reconcile the parties, one of the parties - in this I instance, say, for example, the appellant - does an act or thing which under Islamic law is sufficient to

terminate the marriage  -  for example, he utters or issues a talaka or talaks sufficient to A dissolve the marriage under Islamic law - then the Court hearing the petition is enjoined to make a finding that the marriage has broken down irretrievably and to proceed to grant a decree of divorce.  Evidence of performance of the offending act or thing must, invariably, be given at or during the hearing of the petition or putting it B broadly, before judgment and not thereafter.  If 'Khului' is an act or thing capable, perse, of dissolving a marriage under Islamic law then, in this instance, the respondent should have done it at any time after the certification by the Board and before judgment.  She did not do so.  Instead she did it after judgment had already been delivered. C Assuming - which is the most I can do in this matter at the moment - that 'Khului' is one of the acts or things envisaged by Paragraph (c) then, for reasons already given, the one under querry is legally ineffectual, and I so hold.
I have already pointed out above that evidence of the act or thing mentioned in Para (c) must be adduced at the hearing of the petition.  In this connection it is open to me to D hold, which I do, that the paragraph (quoted supra) in which the learned Principal District Magistrate advised the respondent to redeem herself under section 107(3)(c) is a serious misdirection in law.  Suffice to say that the order of the Court below (dated 13/9/82) allowing the respondent to redeem herself is without any basis in law.  The E same cannot be allowed to stand and it is hereby quashed.  The end result is that the appellant and the respondent are, in law, still husband and wife.  The sh.150/= which were deposited per receipt No.548673 of 13/9/82 should now be refunded to the respondent. F
Para 4 of the appellant's reasons of appeal reads, and I quote:
   4.   Naiomba Mahakama Kuu itoe Amri ya Mwomba (Sic) rufaa (mke wangu) arudi nyumbani kwangu. G
Section 140 of the Law of Marriage Act, 1971, reads:
   140.  No proceeding may be brought to compel a wife to live with her husband or a husband with his wife... H
This should be sufficient to dispose of Para. 4 of the appellant's reasons of appeal.  Much as this Court sympathises with him his plea on this point cannot be entertained as the same is contrary to dictates of the law. I

All in all this appeal succeeds to the extent indicated.  It also fails as indicated.  I make A no order as to costs.
Order accordingly.

B