A. M. Kimweri v. Yusufu Athumani (PC) Civ. App. 107-D-69; 20/2/70; Biron J.

A. M. Kimweri v. Yusufu Athumani (PC) Civ. App. 107-D-69; 20/2/70; Biron J.

A divorce suit was instituted against the appellant by his wife. The appellant consented to the divorce if the wife would under take the maintenance of the children. The parties were married according to Islamic rites. The Primary Court found that the appellant was consenting to a divorce and granted it. The court also ordered that the appellant pay Shs. 450/- per month as maintenance for the three children. The District Court upheld the decision but reduced the figure for maintenance to Shs. 250/-. On appeal the appellant argued that he had not consented to the divorce and that the maintenance had been assessed in the absence of any evidence as to his means.

            Held: (1) “The Primary Court, in granting the divorce, based its decision on the ground that both parties were consenting to divorce, and this is what the District Court upheld in so directing itself. Such a divorce by consent is perfectly proper under Islamic Law and is known as a Mubar’at divorce, though perhaps, to be pedantically correct, as the divorce, though perhaps, to be pedantically correct, as the divorce was originally initiated by the wife, it could perhaps be termed a Khula divorce.”  (2) “The finding of the Primary Court that both parties were consenting to a divorce, which was upheld by the District Court, is fully supported and justified by the evidence. In so far as the order granting the divorce is concerned, this appeal fails.” (3) “It must be conceded at once that this omission to ascertain the appellant’s means, that is to say, how much he could afford to pay, before determining a figure is fatal to the award for maintenance. As, I think, is only commonsense – and I have no doubt the respondent himself will agree – before a court can determine a figure for maintenance, it must first ascertain the means of he respondent before deciding how much he can afford to and should pay. The figure awarded by the District Court, that is, Shs. 250/- per month, is accordingly set aside, and the proceedings are returned to the District Court, with a direction to hear evidence and determine what the appellant’s means are, and thereafter proceed to determine an appropriate sum for the award of maintenance. (4) Appeal allowed in part.