Court name
High Court of Tanzania

Omari Chikamba vs Fatuma Mohamed Malunga () [1989] TZHC 12 (07 April 1989);

Law report citations
1989 TLR 39 (TZHC)
Media neutral citation
[1989] TZHC 12
Coram
Kazimoto, J.

Kazimoto, J.: The appellant and the respondent were husband and wife and were F married according to Islamic law. Matrimonial problems having developed the marriage was dissolved by the Urban Primary Court. There was conclusive evidence that the marriage had been irreparably broken down. The respondent has been proved to have been living an adulterous life. The decision to dissolve the marriage was not challenged G by the parties.
During the subsistence of their marriage the appellant and the respondent had acquired four houses, a coconut farm planted with 250 trees and a stock of animals. The trial H court found on the evidence that these properties were jointly acquired through their joint efforts and awarded two houses to the appellant and two houses to the respondent, the farm and stock were awarded to the appellant while the respondent was awarded shs.10,000/= as her share for the farm and animals. The respondent appealed to the I District Court which partly allowed the appeal. Although the District Court found that there were four houses which were acquired during their

marriage it was satisfied that one house was given as a gift to the respondent's mother A and should not have been a subject of division. With respect I agree with the decision of the District Court. Where during the subsistence of a marriage either spouse or both spouses give a matrimonial property to another person as a gift, it is presumed that such property has been permanently given to that other person unless there is evidence to the B contrary. In this case there is no such contrary evidence. The house given to the respondent's mother was not a matrimonial property and should not have been subjected to these proceedings. The District Court was right to exclude it from the list of matrimonial property. Consequently the District Court awarded two houses to the C appellant together with the coconut farm including stock and gave the respondent one house and ordered the appellant to compensate the respondent shs.30,000/= as her lawful share of the farm and stock. The appellant has been aggrieved by this decision and hence this appeal. D
The appellant has submitted three grounds of appeal which are:
l. That, the first appellate court was wrong in awarding shs.30,000/= more to the respondent as additional amount that would drive her to an equal share of jointly E acquired matrimonial assets, when there was sufficient evidence to prove that the respondent had arbitrarily shared out to herself some of the assets such as a motor cycle, a pedal cycle etc ... even before the breakdown of a marriage. F
2. Having regard to the case cited, the first appellate magistrate ought to have found that property that respondent had encroached upon before the dissolution of marriage was enough and ought not to add more property on top of it. G
3. That the first appellate magistrate did not have in mind the fact that where a jointly owned property is to be developed, he/she who in the first instance shows unfaithfulness towards it is always to lose. H
This appeal has raised two important legal issues. The first to be considered and decided is whether the respondent's alleged misconduct was in law a relevant factor for the purpose of distribution of matrimonial assets and secondly whether a spouse I

who mismanages matrimonial property is entitled to equality of division of assets upon A dissolution of marriage.
Both courts below have dealt at length with the custom of the parties. The trial court however did not say whether a moslem woman who is divorced due to misconduct is B entitled, under Muslim custom, to anything. On appeal the learned senior resident magistrate stated as follows:
What share should a divorced Sunni Moslem woman or man get from the matrimonial assets? I could not lay a hand to a legal text - book on Islamic law either. I shall therefore C assume that the two gentlemen assessors, themselves being moslem, took note of this issue when they gave their views. The assessors seem to agree that a woman is entitled to something from her former husband if she did not misbehave in the management of the matrimonial assets otherwise she forfeits that right. D
In a nutshell the learned magistrate stated that a moslem woman who misbehaves in the management of matrimonial assets is not entitled to such assets. E
In a recently decided case of Salim Wendo v Tausi Wendo and Alfred Kasililwa High Court (DSM Registry) Matrimonial Civil Case No. 8 of l987 (unreported) Mnzavas, J.K. had this to say:
The parties are Muslims and as such they belong to customs of the Muslim Community. F Under Islamic custom a divorced wife is entitled to a parting gift (Kithumn) from her former husband.
The facts in that case are the same as in this case. The woman was, as the respondent in G this appeal, of loose and immoral character. In that case she was given money to start poultry business and she failed to manage it. The Hon. J.K. is a Moslem himself and I venture to think that when he said a divorced Muslim woman who misconducts herself is H entitled to a parting gift he is speaking about the customs to which he belongs and has personal knowledge of such custom. It is therefore clear to me that under section 114(2)(a) of the Law of Marriage Act l97l a divorced Muslim woman is entitled to, and does not forfeit her share in, the division of matrimonial assets. I

I now come to the first issue in this appeal. In this case there was evidence that the A respondent has been guilty of gross misconduct. She not only committed acts of adultery with the sewing machine operator as shown by the exhibits tendered in court, which in themselves would not, in my view have affected her share in the division of property, but also she mismanaged the tailoring business which she had completely wrecked down. B Besides that she built a house clandestinely. Thirdly while the appellant was away in Dar es Salaam the respondent disposed by sale three mattresses, a bed, a refrigerator, three sewing machines, a motor cycle and so on. There was therefore cogent evidence to prove that the respondent had grossly misconducted herself in the management of the C matrimonial property. I would hold accordingly that a misconduct by a spouse touching to the management of matrimonial property is a relevant factor when the issue of division of matrimonial property upon dissolution of marriage arises. D
The second issue - whether a spouse who mismanages matrimonial property is entitled to equal division of such assets - must be resolved in the negative. The District Court had rightly awarded the respondent one house out of three. The appellant did not seem to challenge this in his memorandum of appeal. He contended that the award of E shs.30,000/= by the District Court to the respondent would have put the respondent to equal division of the matrimonial assets. While it was proved that the respondent had sold the items stated above it was not stated how much money was realised. Nor was the value of the three houses stated by either party to this court. The value of shamba F was also not stated. The learned magistrate has stated that the current market value of goat was shs.l,000/=. And with 30 goats became up to shs.30,000/=. In the absence of value of the matrimonial property I cannot say that the award of shs.30,000/= to the G respondent would make her get more than or equal to half of the matrimonial property. Having considered the principles which the senior resident magistrate had used in arriving at shs.30,000/= I cannot say that he erred in this. Taking into account all factors, including the nefarious conduct of the respondent, I am satisfied that the award of H shs.30,000/= would not put the respondent on equal footing as regards division of matrimonial property. The decision of the District Court is upheld. I dismiss the appeal with costs.
I Appeal dismissed.

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