Kondo v. Mwajabu d/o Juma H.C. (P.C.) Civ. App. 38-DDm-72, 25/8/72.

Kondo v. Mwajabu d/o Juma H.C. (P.C.) Civ. App. 38-DDm-72, 25/8/72.

            A wife sued her husband for maintenance while staying with her parents, alleging that she left him after being assaulted.

Held:   (1) A previous acquittal in a criminal case on a charge of assault does not bind the court in a civil suit to find that no assault occurred, because the burden of proof differs in civil and criminal cases.

            (2) The wife was entitled to maintenance while with her parents, because the husband was the cause of her leaving and did not attempt to bring her back.

MNZAVAS, J. – The appellant and the respondent are husband and wife. Sometime in 1969 the appellant assaulted the respondent because she refused to go and cultivate his shamba at Bubu village. As a result of the assault the respondent left the matrimonial home and went to live with her parents. On the 6th December, 1971, the respondent filed a suit for maintenance against the appellant. The Kondoa Urban Primary Court entered judgment in her favour and ordered the appellant to pay her two goats as maintenance expenses. Dissatisfied with the decision and order of the primary court the appellant appealed to district court. He was again defeated. This time he was ordered to pay Shs. 300/- as maintenance expenses to the respondent instead of two goats previously ordered by the primary court. Still dissatisfied he has now come to this court.

Before this court the appellant argued that he was in no way responsible for the respondent’s maintenance while she was living with her parents because she had for no reason at all left the matrimonial home. As for the alleged assault he denied assaulting the respondent and referred to the court the decision in Kolo primary court criminal case No. 61/69 in which he was charged with assaulting the respondent but found no guilty of the charge.

As rightly commented by the learned magistrate in his judgment the fact that the appellant was acquitted on the charge of assault does not necessarily mean that he did not assault the respondent. He may have done so but here may have been no sufficient evidence to prove beyond reasonable doubt that he did; and hence his acquittal. The appellant cannot, therefore, rely on the acquittal as a basis of his argument in this civil case because the burden of proof in a criminal case is totally different from that in a civil case.

Evidence that may fail to support a criminal charge may be quite adequate to prove a civil action. In criminal case No. 61/69 there was medical evidence that he respondent sustained injuries on her lip, cheek, chin and loin. Even if this court.

Is, for the sake of argument, to accept the appellant’s argument that the respondent left the matrimonial home for no reason at all, there is no evidence to indicate that the appellant went to his in-laws and inquired as to any their daughter had deserted him. The respondent was, (as she still is), legally married to the appellant while at her parents’ home and from the evidence accept by the lower courts there can be no doubt that the appellant was the caused of her leaving the matrimonial home to go to her parents. She was, therefore, full entitled to maintenance by her husband while at her parents’ home. The award of Shs. 300/- is in no way excessive taking into account the fact that it covers a period of nearly to years. The judgment of the district court is in harmony with the evidence. The appeal fails. The respondent is to have her costs in this case and the lower courts.