JOSEPH WARIOBA BUTIKU v PERUCY MUGANDA BUTIKU 1987 TLR 1 (HC)

 JOSEPH WARIOBA BUTIKU v PERUCY MUGANDA BUTIKU 1987 TLR 1 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Biron J

30th December, 1980

Flynote

Family Law - Divorce - Both parties are agreed that the marriage has irreparably broken B down - Decree absolute dissolving the marriage to issue.

-Headnote

In this case both parties pleaded that their marriage had irreparably broken down and prayed for divorce.

Held: Where the parties have agreed on sufficient issues of fact and law raised in their pleading, the court may pronounce judgement and order accordingly.

Case Information

Order accordingly.

No cases referred to.

[zJDz]Judgment

Biron, J.: By Rule 29(2) of the Law of Marriage (Matrimonial Proceedings) Rules 1971, "The court shall proceed to try a petition in the same manner as if it were a suit under the Civil Procedure Code 1966." And by Order XV Part 1 of the Civil Procedure Code 1966:

Where at the first hearing of the suit it is apparent that the parties are not at issue on sufficient questions of law or of fact, the court may at once pronounce judgement. In this matrimonial suit, both parties have by their counsel agreed on more than sufficient issues of fact and of law raised in their pleadings. The Petitioner in his petition, and the Respondent in her answer, establish that the marriage has irreparably broken down, as H both assert it has, and each spouse is praying for a divorce. Consequently I have not the slightest hesitation in formally finding that the marriage has in fact and in law irreparably broken down. Accordingly it is hereby ordered that a decree absolute dissolving the marriage is to issue.

The second issue, that of the custody of the only child of the marriage which each party is claiming in his and her pleadings respectively, presents no difficulty at all, as the Respondent realizing that the child, A Gladys, who is now sixteen years of age and will be more than eighteen years old and therefore sui juris and not subject to the jurisdiction of the Court in respect of a custody order, by the time she returns to this country from the United States of America, has withdrawn her claim for the custody of Gladys. And as I have a penchant for consensual orders, it is hereby ordered that by consent the custody of the only child of the marriage, Gladys, is awarded to her father, the Petitioner.

We now come to the third and last issue, that is the division of the matrimonial assets, which so very often presents considerable difficulty.

Therefore both parties are agreed that such issue cannot be determined in the absence of the Respondent but should await her return to this country. Consequently, this issue as to the division of the matrimonial assets is by consent deferred until the return of the Respondent to this country, when it is hoped it will be amicably resolved.

Order accordingly.

1987 TLR p2

F