Hoho v. Ndoma (PC) Civ. App. 219-M-69; 23/2/70; Kimicha J.

Hoho v. Ndoma (PC) Civ. App. 219-M-69; 23/2/70; Kimicha J.

Divorce was obtained by a wife on the grounds of cruelty and the Primary Court ordered that the husband get back 14 of the 20 head of cattle he had paid as brideprice. At the time of the divorce, the parties had four children. The District Court allowed the appeal of the wife against return of brideprice and held that because of the fact that the husband had ill-treated the wife and that they ha children at the time the husband, is in accordance with the Declaration of Customary Law section 52 and 57, was not entitled to the return of any of the animals he paid as bridewealth. The husband appealed.

            Held: (1) “It appears that the primary court in applying the provisions of section 57 and in deciding on the question of bride-price had formed the impression that Ndoma deliberately ill-treated Holo in order to force a divorce. But this is not the impression which one would gather from the record. Ndoma declared before all the courts that he still very much loved his wife and that he assaulted her with the intention of dissuading her from her conduct which he did not approve. She visited pombe clubs and got drunk; she also visited places where he thought she met other men immorally. The root of the trouble would appear to be Ndoma’s excessive jealousy over his wife and no more. On the other hand the district magistrate has declared to have applied the provisions of section 52(B) only. But it would appear from his wording of his decision that he used this section in conjunction with sections 53, 54 and 55. Section 52(B0 is absolute when the parties do not give reasons for the divorce but if they give reasons then sections 53, 54 and 55 apply. In this case the parties have given reasons for the divorce.” (2) “I am satisfied by the lower courts decision that Ndoma’s treatment of his wife justified the grant of divorce but I am of the opinion that the circumstances which led to the divorce were not so serious as to bar consideration for the refund of part of the bridewealth to Ndoma. After considering the dispute in terms

of sections 53, 54 and 55 I am of the opinion that this is a fit case for striking a compromise between the parties.” (3) “Acting on this finding, the appeal is partly allowed and it is ordered that Ndoma be refunded half the brideprice that he paid for Holo. According to the evidence recorded in the lower courts this should be ten head of cattle.”