CHARLES AOKO v DORINA GIBONGA 1988 TLR 44 (HC)

 

CHARLES AOKO v DORINA GIBONGA 1988 TLR 44 (HC)

Court High Court of Tanzania - Mwanza

Judge Sekule J

30th May, 1988

Flynote

B Family law - Divorce - Cruelty - Beatings on two occasions and an

unsubstantiated threat by husband to kill wife - Whether cruelty proved - Whether

marriage has irreparably broken down - Law of Marriage Act, 1971, s. 107 (2)(c) and

(3)(b).

-Headnote

C This was an appeal from the decision of the District Court of Tarime.

The appellant and the respondent were husband and wife. They got married in 1982.

They appear to have had four years of happy and peaceful marriage. In 1987 the

situation changed to the extent that the respondent instituted proceedings in the

Shirati D Primary Court Civil case No. 130 of 1987 seeking divorce. She claimed to

have been frequently beaten and threatened and that she had consulted both the

family council and the marriage reconciliation board whose decisions she was not

satisfied with. Both lower courts granted divorce under section 107 (3) (c) and 107 (3)

(b) of the marriage Act E 1971.

Held: (i)The two incidents that are established by the evidence to have happened

cannot be said to have been clear indication that this marriage was irreparably

broken. They F were the usual wear and tear of married life. They did not amount to

cruelty in terms of sec. 107 (2) (c) of the law marriage Act 1971, nor did they fall

without the purview of section 107 (3) (b) of the Law marriage Act 1971;

G (ii) on the evidence on record the marriage was not irreparably broken down.

Case Information

Appeal allowed.

No case refferred to:

[zJDz]Judgment

H Sekule, J. The appellant and the respondent were husband and wife. They got

married in 1982. They appear to have had four years of happy and peaceful married

life. In 1987 the situation changed to the extent that the respondent instituted

proceedings in the Shirati Primary Court, Civil Case No. 130 of 1987 seeking divorce.

I It was the respondent's case at the trial that from 1982 - 1985

1988 TLR p45

SEKULE J

they lived peacefully. However sometime in 1986, the appellant started beating her

daily A and telling her to go back to her parents as she was barren. Their marriage

had not by that time been blessed with a child. She contended that she reported these

happenings to her parents but they did not take her complaints seriously. In February,

1987 she was B beaten again by the appellant because of money that she had been

given by the appellant to keep. The appellant wanted the money and while she was

still looking for it in their house she was beaten. After the incident she absconded

from the home and went to her relative at Mgango in Musoma. The appellant

followed her and brought her back. Her C father convened a family council to

discuss their problems. She had also alleged that the appellant was threatening to kill

her. The family council discussed their problems and it resolved that the respondent

should go back to her marriage. She was not satisfied with this decision, she therefore

took the matter to a marriage reconciliation board. The board after hearing and

considering their problems, it also advised her to go back to her D marriage. She was

again not happy with the decision and she proceeded to court.

She called three witnesses at the trial to support her case. One of them was one

Omwasi Okoro - the chairman of the marriage reconciliation board and another one

was her own E father.

The chairman of the marriage reconciliation board testified to the effect they dealt

with the parties' problems. That the respondent alleged before them that the

appellant was threatening to kill her. An allegation which the appellant denied and

she tendered no F evidence to substantiate it. Apart from this allegation, the

respondent said they had one other quarrel. It was further his evidence that after they

had considered the matter, they advised the respondent to go back to her marriage

because they saw that only one G incident had been established. This is what the

witness said in response to a question put to him by a second assessor:

Mimi ni mwenyekiti wa Baraza la Usuluhishi. Mdaiwa alikuwa hana makosa

na tuliona ni kosa la siku moja. H

Her father testified that the respondent was beaten on two occasions. On the first

occasion she was beaten because of money. And on the second occasion it was

because she had refused to boil some medicine for the appellant. The appellant was

sick. They I too advised her to go back to her marriage. The appellant on his part

stated in his testimony at the trial that they had a peaceful marriage for about

1988 TLR p46

SEKULE J

A 41/2 years and then the respondent started to be unfaithful to the marriage. He

spoke to her about this conduct but that he never beat her for the sake of protecting

the marriage. He however, stated that they had two quarrels at the beginning of 1987.

One quarrel concerned appellant's money shs. 1,800/=. The appellant contended that

the respondent B had hid or stolen that money. The second quarrel concerned the

respondent's refusal to boil some medicine for him when he was sick. He further said

that he still loved his wife and that though the respondent had had occasion to do

wrong things to him he was prepared to forgive. The appellant too called witnesses to

support his case. The C substance of their testimony was that they had not seen or

heard frequent quarrels between these two people in the course of their marriage

prior to the events that gave rise to this case.

D At the end of the case, the trial court found that the appellant had beaten the

respondent twice, on the first occasion it was because of the money and on the second

occasion it was because of her refusal to boil medicine for the appellant. And that this

conduct was wrong and an offence on the part of the appellant under section 66 of

the Marriage Act 1971 which forbids the infliction of corporal punishment on one's

spouse. E The trial court further held that the appellant must have threatened to kill

the respondent for otherwise how could she have absconded to Mgango.

The court was therefore of the view that the respondent had proved her case and

granted F her prayer. In concluding the case the trial court observed as follows:

Kwa hali hiyo ya vituko ambavyo mdai anatendewa na mdaiwa chini ya fungu

107 (2) (c) la Sheria ya Ndoa 5/71 vya kumpiga na kumlalamikia kila mara ni msherati

na kumtishia ni G vitendo vya kuvunja ndoa. Hivyo nakubaliana na washauri kuwa

ndoa ya wadaawa haiwezi kushamili kama awali inavunjwa.

The appellant was aggrieved and unsuccessfully appealed to the District Court of

Tarime H District. In dismissing the appellant's appeal, the appellate District Court

held that as the parties were trading blames against each other and since the marriage

reconciliation board had failed to reconcile them, then the five years childless

marriage was broken down and it accordingly confirmed the divorce granted to the

respondent under section I 107 (3) (b) of the Marriage Act, 1971.

The appellant is not challenging this decision before this court.

1988 TLR p47

SEKULE J

Both parties appeared in person at the hearing of this appeal. The appellant essentially

A reiterated what he had stated in his petition of appeal and concluded that in his

view the marriage was not irreparably broken down.

On the other hand the respondent admitted that both the family council and the

marriage reconciliation Board had advised her to go back to the marriage and that she

did not B agree with their opinion because the appellant used to beat her.

The crucial issue for determination is, was this marriage irreparably broken. I have

carefully examined and considered the evidence tendered by both parties, at the trial

and on this evidence, I am far from being satisfied that this marriage was or is

irreparably C broken down.

From the trial record, only two incidents are borne out, by the evidence that is, the

quarrels between the parties over the issue of the money and the respondent's refusal

to boil some medicine for the appellant. D

The allegation that the appellant threatened to kill the respondent was not supported

by any evidence. The inference drawn by the trial court that the respondent must

have been so threatened for otherwise why did she abscond to Mgango was in my

view without E basis. Going by her own testimony her departure to Mgango seems

to have been prompted by the quarrel they had over the issue of money. There was

also no evidence from the record to the effect that the appellant constantly

complained or accused her of being unfaithful to the marriage. As a matter of fact the

respondent herself never F complained or raised this issue in her testimony. It was

raised by the appellant himself in an attempt to explain the causes of the problems the

marriage started to face after the peaceful era. He stated that the respondent started to

be unfaithful and he talked to her over that issue and that he never beat her over it.

G

In my view the two incidents that are established by the evidence on record to have

happened, cannot be said to have been clear indication that this marriage was

irreparably broken. They were in my opinion the usual wear and tear of married life.

They did not also amount to cruelty in terms of section 107(2)(c) of the Marriage Act

1971 - the basis H of the trial court's decision. Also and with respect, I am of the

view that the facts of this case did not come within the purview of section 107(3)(b)

of the Marriage Act, 1971 as the appellate District Court held.

Like the family council and the Marriage Reconciliation I

1988 TLR p48

A Board, on the evidence on record, I am not satisfied that this marriage was

irreparably broken down.

The appeal is allowed, the orders of the trial court and the appellate District Court of

granting divorce to the respondent are hereby quashed.

B The parties to bear their respective costs.

Appeal allowed.

1988 TLR p48

C