HALIMA KAHEMA v JAYANTILAL G. KARIA 1987 TLR 147 (HC)

 

HALIMA KAHEMA v JAYANTILAL G. KARIA 1987 TLR 147 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

29 October, 1987 F

Flynote

Family law - Custody of infant child - Mother unable to take care of the child.

Family law - Custody of a child - Material changes on the part of mother - S. 133 of the Law G

of Marriage Act of 1971.

-Headnote

At trial the appellant admitted in writing her inability to take care of the child. The trial court

unanimously granted custody to the father. Appellant's appeal to the District H Court was

rejected. She is appealing to the High Court arguing that there are material changes in her

circumstances, to enable her to maintain the child.

Held: (i) The welfare of the child requires that it be in the hands of either parent not I child's

grandparents;

(ii) where there are material changes in the circumstances of

1987 TLR p148

MWALUSANYA J

the parties after a custody order has been made, the aggrieved party has to apply to the A same

original court so that it varies its earlier order;

Obiter: Under s.125(3) of Law of Marriage Act, 1971, there is a rebuttable presumption that it is

for the good of an infant to be with the mother. The younger the B child, the harder it is to

rebut that presumption.

Case Information

Appeal dismissed.

No case referred to. C

[zJDz]Judgment

Mwalusanya, J.: The respondent Jayantilal G. Karia made an application at Nansio Primary Court

in Ukerewe District, claiming the custody of an infant child, a boy called D Sunny aged more

than one year. The child was born to the appellant Halima d/o Kahema with the respondent, out

of wedlock. When the application was made both mother and father of the child were living

separately in Ukerewe District. The child at the time of the application was under the custody

of the appellant's parents at Mwanza. E

The application was not controverted at the trial, as the appellant mother readily admitted that

she was not in a position to take care of the child who was then with her parents at Mwanza.

The admission was in writing and duly signed by her. The trial court finding that the appellant

mother had no objection to granting the custody of the F child to the respondent, unanimously

granted the application. That was quite proper as the welfare of the child required that the child

be in the hands of either of the parents rather than the child's grandparents.

The mother's appeal to the District Court was in my view rightly rejected. As correctly G

pointed out by the District Court, as the mother was not in the position to take care of the child,

it was not in the interest of the welfare of the young child to remain with his grandparents when

his father was fit and able to maintain him.

In the memorandum of appeal, the appellant has argued that there are material changes H in

the circumstances of this case, to enable this court to vary the original order made by the

Primary Court. She said now she is ready to take the child and maintain him. She also said that

she is employed and has acquired her own accommodation at her new station in Mwanza. I

The answer to that submission is that the appeal is

1987 TLR p149

MWALUSANYA J

misconceived. Under s. 133 of the Law of Marriage Act. No. 5 of 1971, if there are any A

material changes in the circumstances of the parties, after a custody order has been made, the

aggrieved party has to apply to the same original court so that it varies its earlier order. An

appeal to a higher court will not do. The original court has to be B satisfied that indeed in the

meantime, there has been material changes in the circumstances of the parties since the original

order of custody was made, to warrant variation of the same.

The application could be in the same original case file; but one may choose to file a fresh

application in the same court for variation of an original order. And perhaps a fresh C

application in a different court of concurrent jurisdiction will be proper so long as the applicant

satisfies the court that there are material changes warranting a variation of an order made by

another court. But I am sure, an appellate court is not a proper forum for that prayer. D

In this case it appears highly probable that indeed there are some material changes in favour of

the appellant mother. This is because she is now ready to take the child instead of dumping it at

her parents. And moreover she has secured her own accommodation at her new station in

Mwanza. And thirdly it has all along been E conceded since the trial commenced that she is

gainfully employed in the government with a reasonable salary. And most important in favour

of the mother is that the child is under seven years of age (infant he is only 1 year and three

months old) there is a rebuttable presumption that it is for the good of an infant to be with his

mother. The F younger the child, as is the position here, the harder it is to rebut the

presumption. Let it be noted here that the question of legitimation of the child is irrelevant in

the question of deciding the granting of the child. Therefore the Primary Court and the District

Court were to go out of their way in considerating the matter of legitimation of the child. G

In the event this appeal fails and it is dismissed. As indicated earlier the appellant should go to

the original court for an application for variation of its original order as provided under s. 133 of

the law of Marriage Act No. 5 of 1971. This is not the proper forum for H that prayer. I make

no order for costs for this appeal.

I Order accordingly.

1987 TLR p150

A