Rosa d/o Wilbald v. Ebnezer s/o Yosia (PC) Civ. App. 4-A-68, 28/7/69, Platt j.

Rosa d/o Wilbald v. Ebnezer s/o Yosia (PC) Civ. App. 4-A-68, 28/7/69, Platt j.

The appellant, Rosa, who was a married woman, was made pregnant by the respondent in October, 1966 and later gave birth to a child in July, 1967. Her husband had left for Mbeya in April, 1966 and returned in December, 1967. The Primary Court granted the appellant Shs. 300/- compensation, but the District Court refused to uphold this judgment, on the grounds that it was not the appellant but her husband who ought to bring the proceedings for compensation. On appeal to the High Court.

Held: “The Primary Court purported to act under section 182 to 184 of the Declaration of Customary Law, G.N. 279 of 1963, but those Rules do not apply to this case because Rosa was not  an unmarried woman …… the proper rules to apply in this case are those concerned with adultery by a wife during her husband’s prolonged absence. Rule 125 provides that if a husband returns from a prolonged absence to find his wife pregnant or has  given birth to a child which cannot be his because of the length of his absence, several course are open to him:- (a) he can claim compensation for adultery, refuse to accept the child as his, and forgive his wife; the child then belongs to its maternal family; (b) he can claim compensation for adultery, accept the child as his and forgive his wife; (c) he can claim compensation, divorce his wife and decline to accept the child. Then the illegitimate child belongs to its maternal family. Paragraph 126 provides that the husband should make his decision at once when he returns and if he takes no action and continues with his married life as usual, it is understood that he has forgiven his wife and accepted paternity. In the present case, I am told that the husband of Rose has not divorced her. Although he has continued with the marriage he has not accepted the child as his. It seems that it is his duty, if he wishes to bring his case for compensation for adultery. As far as I am aware, there are no rules in the Declaration which allow a wife who has given birth to a child as a result of adultery to bring her own case for compensation. That is a matter which resides in the husband because the marriage still exists.” Appeal dismissed with costs.