HALIMA ATHUMANI v MAULIDI HAMISI 1991 TLR 179 (HC)

 HALIMA ATHUMANI v MAULIDI HAMISI 1991 TLR 179 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

2 December, 1991 E

Flynote

Family Law - Divorce - Whether reconciliation of a Moslem couple by non-moslem

body illegal.

Family Law - Reconciliation - Whether reference to a marriage conciliatory board

always necessary. F

Family Law - Divorce - Marriage must be broken down beyond repair.

-Headnote

The appellant successfully applied for divorce at Utemini Primary Court in Singida

District, against her husband, the G respondent. She sought divorce on the ground of

cruelty on the part of her husband. The trial Court was satisfied that the husband had

treated his wife with cruelty and granted the application for divorce. The respondent

successfully appealed to the District Court. The district magistrate reversed the

decision of the Primary Court for two reasons. First, that as the couple was Islamic,

the body that attempted to reconcile them had no jurisdiction as it H was not an

Islamic body.

Second, that the Marriage Conciliatory Board did not certify that it failed to reconcile

the parties. The appellant appealed to the High Court. I

1991 TLR p180

MWALUSANYA J

A Held: (i) The mere fact that the Board that reconciled the parties was not a

Moslem Conciliatory Board did not render the reconciliation a nullity;

(ii) under section 101 (f) of the Law of Marriage Act the court may dispense

with reference to a Marriage B Conciliatory Board if it is satisfied that there are

extraordinary circumstances which make reference to the Board impracticable;

(iii) the appellant had succeeded to prove that the marriage was broken down

beyond repair.

Case Information

C Appeal allowed.

Editorial Note: Readers are advised to disregard the advice given by the judge for

courts do not register divorces D but only determine whether to grant or refuse

petitions for divorce under the Law of Marriage Act 1971.

[zJDz]Judgment

Mwalusanya, J.: The appellant Halima d/o Athuman successfully applied for divorce

at Utemini Primary Court in Singida District, against her husband Maulidi s/o Hamisi

the present respondent. She sought divorce on the ground E of cruelty on the part of

her husband. The trial court was satisfied that the husband had treated his wife with

cruelty and hence the dissolution of marriage that was made. However the husband

successfully appealed to Singida District Court. That has prompted the wife to appeal

to this court.

F It was common ground at the trial that the spouses in this case had contracted a

Moslem marriage in 1983. The wife alleged at the trial that in the course of years he

was regularly assaulting her and many times has threatened to kill her with a panga.

She also alleged that at one time she was locked inside their house while the husband

went on G safari. That was confirmed by a witness Mr. Hassan s/o Njiku (PW2). She

also alleged that her husband insisted to have sex against the order of nature but that

she vehemently resisted. Efforts to have the spouses reconciled at the Arbitration

Tribunal proved abortive.

H The District Court reversed the decision of the trial court first on the ground that:

As both parties belong to an Islamic community and their marriage was

according to Islamic law, the proper board to I reconcile them was a board of Islamic

community.

1991 TLR p181

MWALUSANYA J

The learned District Magistrate therefore held that since the board was not in

accordance with section 103(2)(b) of A the Law of Marriage Act. No. 5/1971,

therefore there was no reconciliation ever made. On my part I find that the learned

District Magistrate was wrong. It is provided under section 104(7) of the Law of

Marriage Act that:

The proceedings of a Board shall not be invalid by reason only of the fact that

it did not have jurisdiction under section 105(2). B

Therefore the mere fact that it was not the Moslem Conciliatory Board that

reconciled the parties, that does not C render the reconciliation a nullity. An

ordinary Marriage conciliatory Board can perform those functions and that would be

effectly alright. And it is doubtful if in Singida Township there is a proper Moslem

Conciliatory Board which has been established in accordance with the complicated

provisions enumerated in item No. 345 of D Appointment of Communal

Conciliatory Boards G.N. 245 of 1971. Most likely the existing local Moslem

conciliatory Boards in Singida Township have not registered with the Registrar of

Marriages and Divorces in accordance with G.N. 245/1971, but nevertheless their

functions are properly protected by section 104(7) of the E Law of Marriage Act.

Therefore I hold that the Marriage Conciliatory Board in this case had jurisdiction to

reconcile the parties. Then the learned District Magistrate went on to say that: F

Again even if the board was the proper board according to law to reconcile the

parties, but it has not certified that it has failed to reconcile the parties. As I have

gone through the contents of the letter dated 28/9/88 and I have found that only the

petitioner had gone to the board with her present but appellant was not called and

given an opportunity of being heard in G accordance with section 104(1) of the Law

of Marriage Act.

The letter referred to above is dated 28/9/88 and it is issued by the Chairman of the

Kibaoni Marriage Conciliatory H Board. I agree with the learned District Magistrate

that as the husband was not given an opportunity of being heard, then there was no

proper reconciliation by the Board. The position is that the matrimonial difficulty is

regarded not to have been referred to any Marriage Conciliatory Board. I

1991 TLR p182

MWALUSANYA J

A However that is not the end of the matter. The learned District Magistrate should

have considered the applicability of the provisions of section 101(f) of the Law of

Marriage Act which dispenses with referring the matter to the Marriage Conciliatory

Board where the court is satisfied that there were extraordinary circumstances which

B make reference to the Board impracticable. That phrase was considered by

Onyiuke J. in the case of Zainat Khan v Abdullah Khan [1973] L.R.T. n. 57. The

learned judge, inter alia said:

C The discretion conferred on the Court by paragraph (f) of section 101 should

only be sparingly exercised and then only in circumstances where it is clear beyond

any reasonable doubt that a reference to a Board is not a practical proposition. This

may be due to the fact that the circumstances of the case are such that no expectation

can be entertained that the Board will D be able to achieve any useful results and

that any reference to it will be so much a waste of time and effort.

Thus "impracticable" in section 101(f) of the Law of Marriage Act was liberally

interpreted such that it was not E limited to physical impracticability. Reading

through the letter of the chairman of Kibaoni Marriage Conciliatory Board, one

cannot fail to see that it was found useless to call the husband and for reconciliation as

it would be a waste of time and efforts. The allegations were so serious such that any

reference to the Board would not be a F practical preposition I think the trial court

took it that way. Therefore the trial court was right to proceed to hear the case, even

if it had not been referred to the Marriage Conciliatory Board. And I agree that the

petitioner had succeed to prove that her marriage was broken down beyond repair.

On my part I concur with the trial court in G dissolving the marriage in questions.

There is another matter which the learned District magistrate missed. Under the Law

of Marriage Act, there are two ways in which Moslem spouses may seek dissolution of

the marriage. The first method is the fashk divorce as H provided in section 107(1)

and (2) of the Law of Marriage Act whereby a Moslem, like any other spouse, sets out

to prove that the marriage is broken down beyond repair by either cruelty, adultery

etc. This method applies to all spouses who are Moslems or non-Moslems.

Then there is the second method for Moslems only, which makes it easier for them to

secure divorce. It is provided I under section 107(3) of the Law of Marriage Act that

- subsequent to the granting

1991 TLR p183

by the Board of a certificate that it has failed to reconcile the parties either of them

has done any act or thing which A would, but for the provisions of this Act, have

dissolved the marriage in accordance with the Islamic law. Thus if the Board has

failed to reconcile the parties, a Moslem spouses can proceed to demand a khului

before a Sheikh (a wife securing her release through payment of a sum of money) or

she can ask the Sheikh to grant divorce mubaraat B (mutual consent of spouses to

divorce).

For a male Moslem he can issue three talaks. After getting the Khului, or divorce

mubaraat or three talaks, then the concerned Moslem merely goes to court to have his

divorce officially registered without requiring him or her to C prove that the

marriage is irretrievably broken down. Therefore the learned District Magistrate

should have so advised the parties. I hope in future she will not fail to advise the

Moslem women, the easy way of securing divorce.

Be that as it may, the appeal succeeds. I allow the appeal with costs. The decision of

the District Court is set aside, D while that of the trial court is restored.

Order accordingly. E

1991 TLR p183

F