AHMAD SAIDI KIDEVU v SHARIFA SHAMTE 1989 TLR 148 (HC)

 

AHMAD SAIDI KIDEVU v SHARIFA SHAMTE 1989 TLR 148 (HC)

Court High Court of Tanzania - Mtwara

Judge Maina J

1 September, 1989

Flynote

Family Law - Compulsion to cohabitation - Application for an order to compel a spouse live E with an estranged spouse - Whether application entertainable.

-Headnote

In matrimonial proceedings before subordinate courts the appellant applied for an order that the respondent be compelled to live with him. The Primary Court dismissed the suit, F as did the District Court on first appeal. The High Court on second appeal, found that the appellant's suit was misconceived and not maintainable in law and dismissed the appeal with costs.

Held: When difficulties arise in a marriage, and one spouse decides to live separately from the other, the court cannot compel them to live together. Parliament, in its wisdom, enacted section 140 of the Law of Marriage Act, which clearly provides that a court H cannot compel one spouse to live with the other. The only remedy to a spouse who has been deserted is to commence divorce or separation proceedings.

Case Information

Appeal dismissed. I

No case referred to.

1989 TLR p149

MAINA J

Judgment

Maina, J.: This is a second appeal. The appellant, Ahmad Saidi Kidevu, filed a suit in the Primary Court for an order that his wife, the respondent Sharifa Shamte, be compelled to live with the appellant. The suit was dismissed. The appellant's appeal to the District Court was dismissed, and he has now appealed to this court.

The parties were married in 1986 under Islamic law. They lived together at the wife's house, and when they started quarrelling a few months later, they separated. They have been living separately since 1987. The respondent wife sued the appellant for maintenance after the appellant had issued one talaka. The wife has consistently refused to live with the appellant. As both lower courts found, the marriage between the parties is in serious trouble, and it is unlikely that the marriage can be saved.

The question now is whether the court can compel the respondent wife to live with her husband. I must state straightaway that the appellant's suit is misconceived and not maintainable in law, in view of section 140 of the Law of Marriage Act which provides a follows:

No proceeding may be brought to compel a wife to live with her husband or a husband with E his wife, but it shall be competent for a spouse who had been deserted to refer the matter to a Board.

Marriage is a voluntary union of a man and a woman, and it is contracted with the consent of the parties. It is intended that the marriage will last for their joint lives of the parties. However, when difficulties arise in a marriage, and one spouse decides to live separately from the other, the court cannot compel them to live together. Parliament, in its wisdom, enacted section 140 of the Law of Marriage Act, which clearly provides that G a court cannot compel one spouse to live with the other. The only remedy to a spouse who has been deserted is to commence divorce or separation proceedings.

In the present case, the respondent wife has refused to live with her husband, the appellant. The court cannot compel her to live with her husband. The appellant's remedy now is to refer the matter to a Marriage Conciliatory Board, and then file divorce proceedings in a court of competent jurisdiction. The lower courts rightly refused to make an order compelling the respondent to live with the appellant.

Appeal dismissed.

1989 TLR p150