Jelemela v. Shita (PC) Civ. App. 39-M-70; 17/8/70; Mnzavas, Ag. J.

Jelemela v. Shita (PC) Civ. App. 39-M-70; 17/8/70; Mnzavas, Ag. J.

The respondent sought dissolution of her marriage on the ground of desertion by the appellant husband. Evidence before the courts below showed that when the appellant married a second wife, his interest in the respondent diminished and he ceased to have sexual intercourse with her. This continued even after an attempted reconciliation of the parties by local elders. The appellant argued that it was the respondent who had deserted him by deciding to go to her parents.

            Held: (1) “It is true that the respondent decided to go to her parents – she is in fact now living with her parents with her one child aged four years. But his does not make her the defaulting party. She decided to leave the matrimonial home after the respondent had deliberately refused to have marital intercourse with her for over a period of two years. Elders tried to reconcile them but without success. In my view by his conduct, the respondent deserted the appellant than the reverse. (2) “To my mind although there was no physical desertion as mentioned under section 160 of the Law of Persons, G.N. 279/63, the mere fact that the respondent deliberately and without reasonable excuse refused to cohabit with his wife entitles the wife to a divorce under section 160 of the Law of Persons – G. N. 279/65. May I also add that the parties being Wanyamwezi; section 229 – Sheria na kawaida za Wanyamwezi by HANS CORY apply. This section says – “kama mume kwa makusudi hampi ngono mke wake kwa muda mrefu, tendo la namna hii linafikiriwa ni sababu ya kuachana”. Cory does not define what can be said to be “muda mrefu” but in my view two years of non-cohabitation cannot be said to be a short period. Find that the desertion has been proved and I accordingly, like the district court, order that the marriage between the appellant and the respondent be dissolved. As a child was born to the parties the provisions of section 52B of G.N. No. 297 of 1963 apply no bridewealth is refundable.