BIBIE MAURIDI v MOHAMED IBRAHIMU 1989 TLR 162 (HC)

 

BIBIE MAURIDI v MOHAMED IBRAHIMU 1989 TLR 162 (HC)

Court High Court of Tanzania- Mtwara

Judge Maina J

19 September 1989

Flynote

Islamic Law - Divorce - Issue of "talaka" - Whether it is evidence that marriage has B irreparably broken down. Family Law - Division of matrimonial assets - Need for evidence of contribution - Whether performance of domestic duties amounts to such contribution.

-Headnote

The parties were married under Islamic Law in 1979. In 1986 the respondent issued talaka in accordance with Islamic Law. Their dispute had been referred to a Marriage Conciliation Board which certified that it had failed to reconcile the spouses and the Primary Court granted a decree of divorce. On appeal to a District Court, at the instance of the husband it was held that there was no evidence that the marriage had broken down irreparably and the decree of divorce and the order of division of matrimonial assets was set aside. Appellant now appeals to High Court.

Held: (i) The Principal District Magistrate had apparently overlooked the provisions of section 107(3) of the Law of Marriage Act 1971;

(ii) once the Marriage Conciliation Board has certified that it has failed to reconcile the spouses, and a talaka has been issued, then the court has to find that the marriage has irreparably broken;

(iii) there must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets;

(iv) performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%.

Case Information

Appeal partly allowed.

Judgment

Maina, J.: The parties were married in 1979 under Islamic Law. They lived happily together for a few years, and in 1986 the husband issued "talaka" in accordance with Islamic Law, dissolving the marriage. The matter had been referred to a Marriage Conciliatory Board which failed to reconcile the parties, and certified accordingly to the Primary Court. The wife petitioned for divorce. The Primary Court granted a decree of I divorce, and ordered division of matrimonial assets. On appeal, the District Court held that there was no evidence that the marriage had broken down irreparably. The decree of divorce A and the order for division of matrimonial assets were set aside. The wife now appeals.

Since the parties were married in Islamic form section 107(3) of the Law of Marriage Act is applicable. It states as follows:

Where it is proved to the satisfaction of the court that:

(a) the parties were married in Islamic form, and

(b) a Board has certified that it had failed to reconcile the parties, and

(c) subsequent to the granting by the Board of a certificate that it had failed to reconcile the C parties, either of them has done any act or thing which would, but for the provisions of this Act, have dissolved the marriage in accordance with Islamic Law, the court shall make a finding that the marriage has irreparably broken down, and proceed to issue a D decree of divorce.

In this case, all the conditions set out above were complied with. The act of the husband issuing "talaka" had the effect of dissolving the marriage, and as the Board had certified E that it had failed to reconcile the parties, that was evidence that the marriage had irreparably broken down. The Primary Court quite properly made a finding accordingly, and issued a decree of divorce. The learned principal district magistrate apparently overlooked the provisions of section 107(3) of the Law of Marriage Act. F

The decision by the District Court that the marriage still subsists is set aside, and the decision of the Primary Court issuing a decree of divorce is restored. I now turn to consider division of matrimonial assets. The Primary Court made an order G that all the matrimonial assets be divided equally between the parties. But there was no evidence on the contribution by the wife towards the acquisition of the assets. It seems that the Primary Court acted on the assumption that because the assets were acquired during wedlock, the parties were entitled to divide them equally between H themselves. All that the wife contributed was by performing domestic duties, like cooking and looking after the house. She also assisted in supervising laborer's who were constructing one of the houses. But the husband had provided all the funds for the purchase of the farms, household properties and construction of the houses. Section I 114(1) of the Law of Marriage Act gives powers to a court when granting, or subsequent to the grant of divorce to order division of matrimonial assets acquired by the A parties during the subsistence of the marriage by their joint efforts. It is conceded that the duties performed by a wife to look after the house should be considered as her contribution towards the acquisition of matrimonial assets. But in deciding how much she B should get as her share when the marriage breaks down, one should consider section 114(2) of the Law of Marriage Act.

Among the factors to be considered in deciding how much parties should get from the matrimonial assets when the marriage is dissolved are the extent of the contribution by each party and debts owing as well as the customs of the community and needs of the infant children. There were no children to the marriage. There was, however, clear evidence that the wife's contribution was by her performance of domestic duties. Under the circumstances, she could not get half of the matrimonial assets. At the hearing of this D appeal, the husband informed the court, and the wife conceded that he had built a house worth shs.40,000/= for the wife in her village. That, I think, is sufficient share from the matrimonial assets in view of her contribution. She is not entitled to anything else. The order by the trial court giving the appellant half of the matrimonial assets is set aside.

To sum up, the decision of the District Court is set aside. The decision of the Primary Court granting a decree of divorce is restored, and the order giving the wife half of the matrimonial assets is set aside. Each party shall bear his/her own costs.

Order accordingly.

1989 TLR p164