Namdekeda v. Akili, H.C. (P.C.) Matrim.. Civ. App. 12-DSM-72, 31/8/72

Namdekeda v. Akili, H.C. (P.C.) Matrim.. Civ. App. 12-DSM-72, 31/8/72

Held:   (1) Direct appeals to the High Court from Primary Court in matrimonial proceedings are provided for in S. 80 (1), marriage Act, 1971. [But see editorial note at end of case].

(2) An action under Muslim law taken by a husband against his father-in-law for detaining his wife after the revocation of two talaks is not a matrimonial proceeding within the meaning of Section 2, Marriage Act, 1971.

MFALILA, AG. J. – The appellant filed an action against his father-in-law, Mshamu Akili, in the Papura Primary Court in Mtwara Distinct alleging that the latter was unjustifiably detaining his daughter, who is the appellant’s wife and preventing her from cohabiting with him. The respondent denied these allegations and stated that he was prepared to hand over his daughter to the appellant but only before a Sheikh. The Primary Court for reason which are not clear proceeded to decide an issue which was not at all before it. It declared that the marriage was no longer subsisting and that the appellant’s wife could collect her talak from the court any time she wished. Apart from the fact that this order was irrelevant, it was also illegal because the Primary Court purported to pronounce the marriage dissolved without following the provisions laid down in the Marriage Act for the dissolution of all marriages.

Lastly, the Primary Court advised the parties to appeal directly to this court. No doubt the Primary Court was under the impression that this matter fell within the class of cases under the Marriage Act in which appeals lie direct to this court However, Section 80(1) of the Marriage Act 1971 only provides for direct appeals to this Court in Matrimonial Proceedings. Matrimonial proceedings are defined in the Act [Section 2] as those proceedings instituted under Parts 11 and V1 of the Act. The proceedings in the present case being as it is an action under Muslim Law against the father in law for allegedly unjustifiably detaining his daughter after the revocation of two talaks pronounced earlier is neither a Matrimonial Proceeding under Parts 11 and V1, nor a Miscellaneous Proceeding under V of the Act. This is therefore an ordinary civil action in which a Primary Court has jurisdiction under sec. 14(1) (a) (i) of the Magistrates’ Courts Act. It was therefore an action outside the Marriage Act, for which appeals to this court lie via the District Court.

            The record should therefore be returned to the District Court for the hearing of the appeal against the judgment and finding of the Primary Court.

            Ed . Note: In Kalengo v. Bula Mangi, (1972) H.C.D. n. 11, Kwikima Ag. J. held that the procedure laid out for appeals by the Magistrates’ Court Act, 1963, was in no way altered by s. 80(1) of the Law of Marriage Act, 1971. About six months later in Anna Samson v. Richard Odera Abuda (1972) H.C.D. n. 13, Mfalila Ag. J. came to a different conclusion and held that under s.80 (1) of the Act appeals from Primary Courts in Matrimonial Causes go straight to the High Court. The provisions of Section 93 of the Law of Marriage Act, 1971, seem to shed some light on this legal controversy. This section states: “Notwithstanding the provisions of this Act, and subject to an rules made hereunder, where any matrimonial proceeding is instituted in a primary court it may be instituted, tried and disposed of in the same manner as any civil proceeding instituted in a primary court and the provisions of the Magistrate’s Court Act, 1963, and of any rules made there under regulating the institution, hearing and disposal of a proceeding of a civil nature in primary courts, shall apply, mutatis mutandis, to every such matrimonial proceeding.”