BASILIZA B. NYIMBO v HENRY SIMON NYIMBO 1986 TLR 93 (HC)

 

BASILIZA B. NYIMBO v HENRY SIMON NYIMBO 1986 TLR 93 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Lubuva J

F

17th October, 1985

MATRIMONIAL CAUSE 10 OF 1983

Flynote

Family Law - Dissolution of marriages - Christian marriage dissolved by a Kadhi before the

passing of the Law of Marriage Act, 1971 - Whether marriage validly dissolved - S.2 Matrimonial

Causes Ordinance, G

-Headnote

The petitioner went through a christian marriage with the respondent on 22nd May, 1965. By

1973 the marriage had been blessed with four children. However from 1971 the marriage was

burned with regular domestic squabbles and H problems. The petitioner found out from, the

Registrar of Marriages that the respondent was previously married according to Christian rites in

1959 and that marriage was purported to be dissolved by a Kadhi on 8th May, 1965. She argued

that at the time of her marriage to the respondent the latter was not competent to marry because

there was a I subsisting

1986 TLR p94

LUVUBA J

A marriage between him and one Alaneja. So, she sought, inter alia, her marriage with the

respondent be declared null and void.

Held: (i) Before enactment of the Law of Marriage Act, 1971 Christian marriages could validly be

dissolved by the High B Court as provided under section 2 of the Matrimonial Cases Ordinance,

Cap. 364;

(ii) the Kadhi could not legally dissolve the christian marriage between the respondent

and Alaneja celebrated in 1959;

(iii) the marriage between the respondent and the petitioner in 1965 was a nullity

because the respondent was C then incompetent to marry.

Case Information

Order accordingly.

D No case referred to.

Miss Mlaki for the petitioner

[zJDz]Judgment

Luvuba, J.: This is a petition in which the petitioner one Basiliza Gobret Nyimbo is seeking the

E marriage to be declared null and void, to be granted custody of the children, maintenance of

the children by the respondent and condemnation of the respondent to pay the costs of the

proceedings as well as other further reliefs as the court may deem just. As the respondent could

not be served in the normal manner, substituted service was effected by F publication in the

issue of the daily News. The petition was thus proceeded exparte in proof.

From what I have heard of the petitioner's exparte evidence as well as the petition itself

supported by her affidavit, the G historical background of the matter can briefly be stated.

That on 22nd May, 1965 the petitioner went through a Christian Marriage with the respondent

at St. Joseph Cathedral Dar es Salaam. That at the time of that marriage H ceremony, the

petitioner did not know that the respondent still had a subsisting marriage with another woman.

That prior to that marriage the petitioner was made to understand that the previous marriage of

the respondent to Alaneja had validly been dissolved. From the marriage with the petitioner,

four children were born respectively in 1966, 1969, 1971 and 1973 by the names of Caroline,

Antwelukye, Anna and Veri. The originals of the birth certificates' were produced in court for

verification. It is further alleged by the petitioner that as from, 1971 on-wards, her I

1986 TLR p95

LUVUBA J

A marriage with the respondent was unfortunately characterised with regular domestic

problems and squabbles which according to the petitioner were attributed to the respondent's

behaviour of drunkenness and involvement with other women. In such predicament, the

petitioner found out from the Registrar of Marriages that the respondent's previous B marriage

which had been officiated in a Christian Lutheran Church in Dar es Salaam on 13th December,

1959 had not bee validly dissolved. The said previous marriage of the respondent to one Alaneja

Mtekele was purported to have been dissolved before a Kadhi on 8th May, 1965 in Dar es

Salaam. With such finding on the part of the petitioner in regard to C the marriage between

the respondent and the said Alaneja Mtekele, the petitioner decided to leave the matrimonial

home. She has since been living on her own together with three of the children of the marriage

as the fourth child has lately been staying with the respondent attending school. On the basis of

such evidence, Miss Mlaki learned counsel from D the Tanzania Legal Corporation who

appeared for the petitioner argued that as the petitioner at the time of their marriage was not

aware of a subsisting marriage, the marriage between the petitioner and the respondent was a

nullity. Miss Mlaki's submitted further that prior to the enactment of the Law of Marriage Act,

1971, a civil marriage could only be dissolved validly by the High Court in which case the

respondent's purported dissolution of his christian monogamous E marriage before a Kadhi was

of no legal validity. The respondent having gone through a ceremony of marriage with the

petitioner at a time when there was an existing marriage with Alaneja, such a marriage was a

nullity under Section F 38(1)(c) of the Law of Marriage Act, 1971, it was submitted by learned

counsel Miss Mlaki. She urged the court to declare the marriage a nullity and grant the custody

of the children to the petitioner as well as providing for the maintenance of the children by the

respondent. G

In regard to a void ceremony of marriage, section 38 (1)(c) of the Law of Marriage Act, 1971

provides:

H ... A ceremony purporting to be a marriage shall be a nullity if either party is incompetent

to marry by reason of an existing marriage.

Kadhi as defined under Section 2 of the Law of Marriage Act, 1971 means a Muslim priest or

preacher or a leader of a I Muslim Community who has been licenced under the Act to

celebrate

1986 TLR p96

LUVUBA J

A marriages in Islamic form. From this definition, it is quite clear that a Kadhi is properly

authorised under the law to officiate in marriages of Islamic form. In other types of marriages he

has no power to officiate. In the instant application, B from the ex parte evidence, the marriage

of the respondent to Alaneja was Christian in form. Such a marriage could not validly be

dissolved before a Kadhi as the respondent purported to do on 8th May, 1965. The purported

dissolution was of no legal validity. The marriage and indeed civil marriages as a whole could

validly be dissolved at that time by the C High Court as provided for under Section 2 of the

Matrimonial Cause Ordinance, Chapter 364, of the Laws which was repealed by the Law of

Marriage Act, 1971. In these circumstances, with a futile dissolution of the marriage between

Alaneja and the respondent before an improper minister of religion, the Kadhi, the respondent

was incompetent to marry D by reason of the said existing marriage. That being a Christian,

monogamous marriage, the respondent could not legally undergo another ceremony of marriage

as he did with the petitioner on 22nd May, 1965. As rightly submitted by Miss Mlaki, the

subsequent marriage of the respondent to the petitioner was therefore in my view, not only void

but a nullity on E account of the existing undissolved previous marriage of the respondent to

Alaneja.

In the result, from the ex-parte evidence as adduced by the petitioner in addition to her affidavit

as well as the submissions made on her behalf, I am inclined to believe that her claim in the

matter is sufficiently credible and would F accordingly allow the petition with the following

attendant order as prayed:

1. The marriage celebrated between the Petitioner and the respondent on 22nd May,

1965 illegally is declared null and void.

G However, with such finding and the resulting declaration of the marriage as null and void,

that would not mean the end as well of the responsibility over the children born of the marriage,

on the part of the parents. It is common knowledge H that in any proceedings for divorce,

nullity or judicial separation, on conclusion of such proceedings, one aspect of paramount

concern to the court is to ensure that satisfactory arrangements are made for the care and

welfare of the children born of the marriage until they reach the age of 18. Therefore, the

question of the maintenance of the children is I unavoidably the responsibility of the parents

and the marriage having

1986 TLR p97

LUVUBA J

A been a nullity is no valid excuse for evading this onerous task. Section 129 of the Law of

Marriage Act 1972, provides specifically on the duty to maintain the children. Under this

provision, unless it is otherwise provided by agreement, it is the duty of the father of the

children to maintain the children whether such children are in his custody or B the custody of

somebody else. In this petition, evidence has been led to show that except for a short period

lately when the 3rd born of the marriage has been taken in the custody of the respondent

attending school, the rest of the children have otherwise been in the custody of the petitioner.

Consequently, as the petitioner has applied to be granted the C custody of the children, I am

satisfied that it is in the interest and welfare of the children to make the following orders as well.

II. Except for Coroline who was born in 1966 and is at liberty to chose, custody of

the other children Atwelukye, Anna and Veri is granted to the petitioner with reasonable access

to the respondent. D

III. The respondent to pay maintenance for the Children in arrears from 1975 to the

date of judgment at the rate of 1,500/= per month and thereafter at the end of every calendar

month i.e. 30th through the court. E

IV. The respondent to pay the costs of this petition.

F As for the distribution of the property which was jointly acquired during the purported

marriage, such an aspect though it was referred to by the petitioner at the hearing of the petition

was however not specifically pleaded and brought out in the petition. This valid though it may

well be, is fundamental issue which should be taken up right from the time when the G

petition is filed. Among other reasons, this is due to the fact that if a fundamental issue is taken

up from the time the petition is initiated the respondent is afforded the opportunity to know of

it in advance and in that way he would have H had the chance of raising any defence on the

matter if any. I would therefore not pursue it any further at this stage.

Order accordingly. I

1986 TLR p98

A