Gadi Athumani v. Elinati Aminiel, (PC) Civ. App. 85-A-72.

 

Gadi  Athumani v. Elinati Aminiel, (PC) Civ. App. 85-A-72.

BRAMBLE, J. The respondent/plaintiff brought a claim against the appellant / defendant in the Same Primary Court for damages for deflowering her and pregnancy maintenance.

The court found that the respondent did not prove that the appellant deflowered her but that he made her pregnant as a result of which she gave birth to a child. From the record the respondent was about 18 years old at the time. An order was made that the appellant pay to the respondent Shs. 100/- for pregnancy maintenance and Shs. 30/- monthly for the maintenance of the child until it attained the age of seven years.

            Both parties appealed to the District Court, the defendant against the whole order, and the plaintiff on the inadequacy of the maintenance for the child and the failure to award damages for deflowering her. The District Court substantially upheld the judgment of the Primary Court but increased the maintenance for the child to Shs. 40/- per month until it was fourteen years old or until the father took custody. This is an appeal against that decision.

            The suit was brought in the Primary Court and consequently Customary Law applied. The appellant agreed that the respondent was his fiancé and that he had an affair with her but claimed that she was then pregnant. Clauses 183 and 184 of the Local customary Law G.N. 436 of 1963 are on the point. “183. The man whom the woman names as father of her child may not deny paternity unless he can prove that he had no sexual intercourse with the woman.” 184. Even if the woman had more than one lover at the time of conception, the one whom the woman names may not deny paternity of the child.”…… From the evidence and the law it was safe to conclude that the appellant was the father of the respondent’s illegitimate child.

            There was no strict proof of the expenses connected with the pregnancy and child-birth but this has not been challenged in the court and I see no reason to interfere with it. I do not see on what authority an order was made against the appellant for the maintenance and education of the child. The customary Law is that children not born in wedlock belong to their maternal family. This implies that the responsibility for their upbringing rests on the maternal family. It is possible for a father to legitimate his illegitimate child and according to Clause 182 of the Customary Law mentioned above he is then responsible for its maintenance wherever it is brought up.

            The claim was very specific and nowhere in it was there a request for maintenance of the child nor was this in any way mentioned in the evidence. The trial magistrate was quite wrong to make any such order. He had no jurisdiction to do so. An order of this kind would be proper under customary Law where a child has been legitimated. If this has not been done it is possible for a woman to seek such an order under the Affiliation Ordinance, but she would have to move a District Court.

            For these reasons I will allow the appeal in part and set aside the order for maintenance of the child. There will be no order as to costs in this court.”

            Ed. Note: This case should be compared with the following apparently conflicting judgments: Mguya v. Mbaga, (1967) H.C.D. n. 326; Pius v. Tehabyona, (1971) H.C.D. n. 174.