MOHAMED NDWATA v HAMISI OMARI 1988 TLR 137 (HC)

 

MOHAMED NDWATA v HAMISI OMARI 1988 TLR 137 (HC)

Court High Court of Tanzania - Dodoma

Judge Samatta J

20 July, 1988

Flynote

Family Law - Dissolution of marriage - Whether dowry and other traditional payments are recoverable - S. 71 Law of Marriage Act, 1971, and s. 3A Judicature and Application of Laws Ordinance Cap. 453.

-Headnote

In the Primary Court, the appellant won his claim for recovery of dowry and various traditional payments plus costs of the suit, on the ground that his wife had unreasonably refused to consummate the marriage. The respondent appealed to the District Court of Kondoa and the appellant was awarded just restitution of bride price.

Hence this appeal against the decision of the District Court. 

Held: Once a marriage has taken place any gifts, whether traditional or otherwise, given in contemplation of the marriage become the absolute property of the recipient and it cannot be diverted by subsequent divorce: s.7 of the Law of Marriage Act of 1971 which also supersedes rules of customary or Islamic law.

Case Information

Appeal dismissed.

No case referred to. F

[zJDz]Judgment

Samatta, J.: This is a somewhat unusual litigation. The appellant had filed a suit in the Primary Court of Haubi, claiming from the respondent recovery of dowry and various traditional payments he made when he married the respondent's daughter. The marriage was dissolved by the Primary Court in an earlier case, apparently on the ground that the wife had unreasonably refused to consummate the marriage. In that court the appellant was partly successful. In an unanimous decision the court decided that the appellant was entitled to recovery of the dowry which had been paid, which amounted to Shs. 500/=, and Shs. 3459/=, being made up of Shs. 3300/= as the total of some of the traditional payments he had made, and Shs. 150/= being costs of the suit. The respondent was aggrieved by this decision. He strongly believed that the appellant was not entitled to any amount he was awarded. He accordingly appealed against the I decision to the District Court of Kondoa. The appeal was partly successful. The District Court held that the appellant (the respondent then) was entitled to a restitution of the bride price only. The appellant believed that the District Court's decision was not just. He still believes so.

Hence the present appeal.

In my opinion the appeal must be dismissed. Whatever the legal position might have been under the Customary Law or the Islamic law, the law now, as I apprehend it, is that once a marriage has taken place any gifts, whether traditional or otherwise, given in contemplation of the marriage, become the absolute property of the recipients. The C property cannot be diverted by subsequent divorce. This legal position is the effect of s. 71 of the Law of Marriage Act, 1971 (the Act), which reads as follows:

71. A suit may be brought for the return of any gift made in contemplation of a marriage which has not been contracted, where the court is satisfied that it was made with the intention on the part of the giver that it should be conditional on the marriage being contracted, but not otherwise.

Any rules of Customary Law or Islamic Law which might have regulated the return of gifts made in contemplation of a marriage are now superseded by the provisions of s. 71 of the Act, quoted above. The provisions of s. 3A of the Judicature and Application of Laws Ordinance, Cap. 453, make that perfectly clear. The section reads:

3A. Notwithstanding the provisions of this Act the rules of customary law and the rules of Islamic Law shall not apply in regard to any matter provided for in the Law of Marriage Act, 1971.

The various payments made by the appellant in contemplation of the marriage to the respondent's daughter were in effect, whatever name one attaches to them, gifts, and, therefore, are covered by the provisions of s.71 of the Act. It follows that, in my considered opinion, in law the appellant is not entitled to the restitution of the said gifts.

I Appeal dismissed.

1988 TLR p139

A