Court name
High Court of Tanzania

Harubushi Seif vs Amina Rajabu () [1987] TZHC 22 (01 August 1987);

Law report citations
1986 TLR 221 (TZHC)
Media neutral citation
[1987] TZHC 22
Coram
Korosso, J.

Korosso, J.: This is an appeal lodged by the Appellant against the decision of the Primary Court of Nyalikungu H  in its Civil Case No. 44/86 and that of the District Court of Maswa in its Civil Appeal No. 23/86.
Before the Primary Court, the Respondent petitioned for separation between her and the Appellant by whom she I  purported to have been legally married. In the course of the trial it became

obvious that though the Appellant and the Respondent had cohabited as husband and wife for about 15 years A  and had even been blessed with 4 children, they hadn't been formally married.  The Primary Court having been satisfied that the Appellant and the Respondent had indisputably lived together for about 15 years, (it) felt satisfied that the presumption under section 160(1) of the Marriage Act hadn't been rebutted.  Consequently it B  invoked the provisions of section 160(1) of the Marriage Act No. 5/71.  The Primary Court granted the petition for separation.  The Appellant appealed to the District Court of Maswa.  The Respondent also cross-appealed.  The District Magistrate dismissed both the Appeal and the Cross-Appeal. C
The Appellant before this Court was represented by the learned Counsel, Mr. Ntabaye an Advocate based at Tabora.  In the course of the Appeal, Mr. Ntabaye submitted that the Appellant and the Respondent having not been legally married, the Respondent had no legal right to petition for separation.  He submitted that at best, the D  Appellant and the Respondent lived in concubinage, Mr. Ntabaye cited the case of Francis Leo v Paskali Simon Maganga [1978] L.R.T. No. 22 decided by Hon Justice Mfalila (as he then was).  The cited case propounded on the purport of the provisions of section 160(1) of the Marriage Act. E
In the cited case, the Appellant sued the Respondent and claimed from the Respondent the sum of Shs.2,400/= being payment to be paid by the Respondent for legitimation of the Respondent's five (5) children who were begotten by the Respondent with the Appellant's daughter called Magdalena.  The appellant claimed the sum of F  Shs.2,400/= under the customs and usage of Wanyamwezi.  It would appear that the Respondent and Magdalena had lived in concubinage for a period of over 2 years.
The Hon. Justice Mfalila (as he then was) observed in his judgment on appeal thus: G
   Being duly married means going through the forms and procedures as provided for under the provisions of Marrige Act.
The Hon. Judge went on to observe thus: H
   When the presumption has been rebutted under the provisions of section 160 of the Marriage Act, the children of the I  presumed Marriage are illegitimate. The father of the illegitimate children may legitimate them according to

   Customary Law in order to bring them to the paternal side. The Respondent should have either surrendered the five A  children or taken legal steps to legitimate the 5 children to bring them to the paternal side.
It is opposite to quote the provisions of section 160 of the Marriage Act. B
   160(1) When it is proved that a man and woman have lived together for over two years or upwards in such circumstances C  as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married.
   160(2) When the man and woman have lived together in such circumstances which give rise to a presumption provided D  for in section 160(1) and such presumption has been rebutted in any Court of competent jurisdiction, the woman shall be entitled to apply for maintenance for herself and every child of the union on satisfying the Court that she did in fact live E  together as husband and wife for 2 years or more and the Court shall have jurisdiction to make order or orders for maintenance and upon an application made therefore by either the woman or the man to grant other reliefs, including F  custody of children as it has under this Act to make or grant upon or subsequent to the making of an order for the dissolution of marriage or order for separation as the Court may think fit.
I respectfully agree with the Honourable Judge when he observed that the phrase 'duly married' in section G  160(1) of the Marriage Act means, and indeed should be taken to mean, that only parties concerned who have gone through all the statutory formal procedures as provided for in the Marriage Act No. 5/71.  This should, of course, include getting the marriage certificate which crowns all the many preceding formalities. H
But with equal due respect, for compulsive reasons, I do hold different views from those held by the Honourable Judge (as he then was) in the above cited case.  In my serious study of section 160(1) and 160(2) of the I  Marriage Act which must or need to be read and considered collectively, I am of the settled mind that where a man and woman who have cohabited together in concubinage for over two years or upwards but whose presumption of their having

married has been rebutted, because the man and woman have been proved to have not been duly married; still A  the woman assumes a special legal status if she can satisfy a Court of competent jurisdiction that she has in fact lived with the man as man and wife for a continuous period of two years or more.  By virtue of the provisions of B  section 160(2) of the Marriage Act once the woman has satisfied the Court of her continuous cohabitation with the man then she automatically becomes entitled to claim for maintenance for herself and every child of the union.  It is noteworthy that such concubinage acquires the title of a union and the children are referred to as children of C  the union.  The woman becomes entitled to apply for maintenance and for custody of children.  The children of such parties are neither for the maternal side nor for the paternal side.  They are under the Marriage Act vested with the status of being a man and woman of the union.  Either the woman or the man may apply for custody of D  the child or children, and undoubtedly in granting custody to either of the parties, the Court will apply the principles as provided.  In other words, the child or children of such union are deemed legitimate children and not illegitimate children.  Thus the children of the Appellant and Respondent are deemed legal  children.
Again, under the provisions of section 160(2) of the Marriage Act if a woman has satisfied the Court that she has E  lived with the man for two years or more; then the Court is statutorily vested with the jurisdiction to grant or make orders to the parties in the same way as it has jurisdiction to make orders consequent on divorce or F  separation of the duly married spouses under the provisions of the Marriage Act.  Where a woman has proved to the satisfaction of the Court of her having cohabited with a man for two years... woman is only deprived of the right to petition for divorce or separation.  Otherwise such a woman has all the rights which a divorced woman G  has under the Act.  The referred to application of other reliefs which a woman may make would definitely include application for division of property if any which has been acquired by joint efforts.  This is good law, intended to emancipate the women and to prevent their exploitation.  As in this case the Appellant and the Respondent are H  said to have cohabited together for 15 years.  She was 36 years when they started to live together.  She has used all her youth while staying with the Appellant.  If during the 15 years she contributed her labour, energy and materially towards the acquisition of certain property then the good law must protect her interests what-ever that may be. I

There is another reason why section 160(2) of the Marriage Act is of tremendous importance in this country. A  There is no doubt that with the enactment of the Marriage Act every Tanzanian contracting a Christian marriage, Muslim marriage, Civil marriage and Customary law marriage was and still is required to contract his/her B  marriage according to the express provisions of the Marriage Act.  It would be a great surprise if all the people in the rural communities are contracting their marriages in strict compliance with the express provisions of the C  Marriage Act.  The majority of them are not aware of the existence of the Marriage Act.  They purport to marry customarily the way they used to.  If the provisions of section 160 is interpreted in the terms of the case of Francis Leo cited 'supra' what will be the legal status of the children of such relationships?
I wish to conclude by saying that if the presumption of marriage provided for in section 160(1) of the Marriage D  Act has been rebutted but the woman has satisfied the Court of competent jurisdiction that she in fact cohabited with the man for 2 years and more, then under the provisions of section 160(2) of the Marriage Act the woman E  becomes a deemed legal wife devoid only of the legal right to petition for divorce or separation.  But at the same time she becomes vested with the legal right to apply for maintenance for herself and the children of the union.  The woman also becomes vested with the legal right to apply for custody of the children of the union and some other reliefs which may include division of matrimonial property acquired by joint efforts. F
Secondly, the children of such relationship become deemed legitimate children for whom either the woman or the man may apply for custody.  The question of who between the woman and the man should have custody must be G  resolved on the principles provided in the Marriage Act.  There is no question of legitimation of children begotten of a man and woman who have cohabited together for two years or more in circumstances in which they acquire the reputation of being husband and wife.
Reverting to this case, it is clear that the Respondent and the Applicant having not been duly married in H  accordance with the formalities and procedures provided for in the Marriage Act, the Respondent had no legal right whatsoever to petition either for divorce or separation.  It was incorrect for the lower Courts to hold that the I  Appellant and the Respondent were duly married.  But it having been satisfactorily proved that the Appellant and Respondent have lived as husband and wife for about 15 years the Respondent

shall be entitled to file an application for maintenance, for herself, for custody of the 4 or any other children and A  also for other reliefs which includes application for division of property for which she may feel she is entitled to a share.
The Primary Court and the District Court having had no jurisdiction to entertain, hear and determine the B  purported petition for separation, I declare the proceedings of the lower Courts, null and void.  I quash the proceedings and incidental orders.  I make no orders as to costs.
Appeal allowed.
1986 TLR p226