AMINA BAKARI v RAMADHANI RAJABU 1984 TLR 41 (HC)

AMINA BAKARI v RAMADHANI RAJABU 1984 TLR 41 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

January 14, 1986

B CIVIL APPEAL 17 OF 1984

Flynote

Family Law - Custody of children - Claim for custody of child born after parties were

formally divorced.

Family Law - "Children born in wedlock" - Meaning of - Rule 175 of the Customary

Law Declaration Order - C Whether Adulterer's claim can be sustained.

-Headnote

This was a suit for the custody of a child who was born after his parents were

formally divorced. The appellant claimed that the child was sired by a person other

than her former husband. The trial court D refused to grant the respondent's claim

for the reason that the appellant had named another person as the father of the child.

On appeal the District Court reversed the decision and hence the present appeal.

E Held: Whatever be the correct English expression of "children born in wedlock

belong to the father", it provides no justification for denying the spirit of the

customary rule from which Rule 175 derives, namely, the preservation of the sanctity

and dignity of the marriage institution by refusing F to recognise adultery, a trespass

to the marriage, as taking precedence over and ousting the husband's rights.

Case Information

Order accordingly.

G Cases referred to:

1. Richard Mapesa v Rashid Bwana [1978] LRT n.4.

2. Mungasio Munchari v Moseti Meremo [1978] LRT n.6.

3. Masuka v Sigonjwe [1971] H.C.D. n. 92.

H 4. Mgowa Madolo v Mgogolo Dododo [1973] LRT n.7.

[zJDz]Judgment

Lugakingira, J.: This was a suit for custody of a child but it had rather unusual

features. The parties were married in the early 1970s. They separated in August 1978

according to the respondent. I On 30/12/78 they were formally divorced before the

Primary Court at Merya. According to the respondent again, the appellant was then

over eight months' pregnant and gave birth to a

1984 TLR p42

LUGAKINGIRA J

male-child on 5/1/79 which was given the name Juma. He sued for custody of the

child in 1983 in A order to provide it with proper maintenance. He tendered the

child's birth certificate which was issued at Singida on 24/3/79.

The appellant resisted the claim. She alleged that she had been separated from the

respondent for three years before she petitioned for divorce. She denied being

pregnant at the time of the divorce. B According to her, she got married to one Iddi

Tenga in January 1979, got pregnant, and gave birth to a male child on 20/10/79

which was given the name Juma. She tendered clinic attendance cards to evidence the

pregnancy and birth. According to her, therefore, the child's father is Iddi Tenga who

C in fact gave evidence claiming paternity.

The trial court doubted the respondent's story including his tendering of a certificate.

It therefore held that Juma was born on 20/10/79 and was not the respondent's child.

The court also purported D to rely on Rule 183 of the Declaration of Customary

Law, G.N. No. 279 of 1963, which provides that a man may not deny paternity of a

child if named by a woman unless he can prove that he had no sexual relations with

her. It interpreted this to mean that even a husband may not claim paternity of a E

child if another man has been named by the woman. The decision was reversed by

the District Court which took a different view of the evidence and declared the

respondent to be Juma's father although it did not grant him custody.

I have said that the case was unusual. Never before have I heard one and the same

child being born twice and with documentary evidence on each alleged birth. It

simply means that one of the parties F was untruthful, for it is not in the nature of

things to permit such a miracle. An added difficulty which greatly exercised the

courts below is that the parties were remarkably inconsistent and unreliable where

dates were concerned. Even the date of their marriage remained unsettled. In the G

divorce certificate Exhibit A - it is not clear by whom or when it was tendered -this

date is given as 1972. In the appellant's evidence it is given as 1973 while in the

respondent's evidence it is 1974. The respondent was not consistent even on the date

of separation. It is either February or March or H August 1978. He was only

consistent that the appellant was already pregnant at the time. The same is true of the

appellant. At first she stated that she did not know how long the separation lasted

before she petitioned for divorce but later said it lasted three years. Her conception of

time and her familiarity with the calender must be much doubted as she told the

District Court that I divorce was granted in 1983. With

1984 TLR p43

LUGAKINGIRA J

A such evidence and such witnesses the task of any court must be difficult indeed.

One thing is certain, namely, that the parties were divorced on 30/12/78 according to

the divorce certificate Exhibit A. The greatest difficulty is to resolve the time of the

conception and birth of the B child Juma. Faced with this difficulty, the District

Magistrate on first appeal wisely called for and pursued the divorce proceeding in

Matrimonial cause No 34 of 1978. He discovered that on 1.12.78 the appellant

admitted being pregnant and the argument then centred on the age of the pregnancy.

I C have no reason to doubt the learned District Magistrate on the discovery of this

admission which he cites several times in his judgment. Now, where did that

pregnancy go? The appellant offers no explanation but to deny any knowledge of

it.This, I am afraid, is not a little dishonest. Apart from appellant's earlier admission, I

note that in the divorce certificate exhibit A., which was taken out on D 2/9/80, a

child, Juma Ramadhani, is inserted as a child of the marriage. There is then the birth

certificate Exhibit B. It is perfect in every respect and shows that one Juma Kidimwa

Ramadhani was born to the parties on 5/1/79. Kidimwa is another of the respondent's

names. In law, a birth E certificate is presumed to be genuine, it being a certified

copy of an entry in the births register - see s.88 of the Evidence Act, 1967. The

burden of rebutting that presumption was in this case on the appellant. In my

respectful view it was not rebutted by the production of clinic-cards, Exhibit C., F

which have no legal standing and which are altered in not less than twenty places. It

required more and better evidence than the apparently conspiratorial stories of the

appellant and her present husband. I am therefore in agreement with the learned

District Magistrate that Juma was conceived during the subsistence of the marriage

and was born on 5/1/79 shortly after its dissolution.

G It is of course uncertain whether the respondent is Juma's natural parent given the

uncertainty of the date of separation and the unreliability of the parties generally. The

matter, however, is governed by customary law and the courts below proceeded on

that footing. It may be mentioned that in H Singida district it is not uncommon to

find people with names that have no bearing to their religious persuasions, if any.

And even where names indicate any religion, customary law still plays a predominant

role. It was therefore not suggested in this case that the parties' matrimonial I

relationship was anything but customary. In accordance with Rule 175 of the

Declaration already referred to children born to a married couple belong to the

husband and this has been interpreted to include children

1984 TLR p44

LUGAKINGIRA J

conceived during the subsistence of the marriage but born after its dissolution. Under

this rule it is A immaterial that a child is sired adulterously. It belongs to the

husband so long as he accepts it. On the facts of this case, it follows that Juma is the

respondent's son regardless of how he was conceived.

There have been interesting propositions about a child born to a married couple or

"born in B wedlock" and this judgment would be incomplete without reference to

them. I am having in mind what was said in Richard Mapesa v Rashid Bwana [1978]

LRT n.4 and Mungasio Munchari v Moseti Meremo [1978] LRT. n.6. These decisions

propound the view that Rule 175 applies to a child C "born to married parents" or a

child which is a "natural product of the physical union between husband and wife".

Under this view a child born adulterously does not fall under Rule 175. I have a great

deal of respect for my learned brothers who took that view but I think it is an

ingenious interpretation which does not find justification in the customary law of

which Rule 175 is a mere D declaration. The problem could possibly stem from the

proliferation of terms and expressions. We have the original "watoto wanaozaliwa na

watu walioona"; we then have "children born to married parents", "children born

during the subsistence of a marriage" "children born in wedlock", etc.; but E

whatever be the correct English expression it provided no justification for denying

the spirit of the customary rule from which Rule 175 derives. This is the preservation

of the sanctity and dignity of the marriage institutions by refusing to recognise

adultery, a trespass to the marriage, as taking precedence over and ousting the

husband's rights. It is thus possible to identify two fundamentals F in the rule. First

of all, the contract of marriage confers certain rights on the husband, including the

right to children born during the subsistence of the marriage, and this is secured by

the payment of bridewealth. Secondly, customary law, like any civilised law,

recognises no rights founded in G transgression. It is therefore open neither to the

wife nor to her lover to deny the husband's paternity to a child born during the

subsistence of the marriage.

These arguments are by no means new. In Masuka v Sigonjwe [1971] H.C.D. n.92 the

adulterer filed a case against the husband claiming custody of a child born of the wife,

of which the adulterer H claimed to be the father. The wife admitted adultery and

said that the adulterer was the true father of the child. The claim failed in both the

Primary and the District Courts because according to Gogo customary law every child

born during the subsistence of the marriage I

1984 TLR p45

LUGAKINGIRA J

A is a child of such marriage. On appeal to this Court, Hamlyn, J. dismissed the

appeal stating:

It would of course be quite improper to allow the claim of the woman in

circumstances such as these, or B even to accept such evidence as having any bearing

on the matter....It is clear that the local customary law contains not only basic robust

commonsense but that it also accords with more sophisticated codes in this matter.

C And in the famous words of Kwikima, A.g J. in the case of Mgowa Madola v

Mgogolo Dododo [1973] LRT n. 7:

Anyone who sires a child adulterously cannot be heard to claim it. Even if

such were not the accepted D custom, the ethics of our present time would not

tolerate an adulterer benefiting from his sin to the detriment of his cuckold.

I agree. I think, therefore, that to the extent that the cases of Richard Mapesa and

Mungasio E Muchari held Rule 175 to be inapplicable to children born adulterously,

they cannot be said to have been correctly decided. I venture to suggest with perfect

respect, that these decisions proceed on a misconception of legitimacy as a biological

state when in fact it is a legal status. A child is legitimate F or illegitimate not merely

from the circumstances of its birth but because the law declares so. Customary law

declares that children born during the subsistence of the marriage are legitimate

children of the husband. That is the end of the matter unless the husband himself, but

not the wife or the adulterer, elects and is able to rebut the presumption. This also

disposes of the trial court's G reference to Rule 183. That provision applies to

children born of unmarried women but does not licence a married woman to behave

as if she were a wild tree from which any man could gather fruit.

As stated earlier the respondent is the father of the child Juma and I uphold the

District Court's H declaration on the issue. I also think that the issue of custody was

rightly decided although for different reasons. Juma is now seven years of age and has

throughout been in the custody of the appellant. It would not be in his interests to

disturb him by placing him in the custody of the respondent, a person he probably

does not know. In fact the respondent never appealed against the I order denying

him custody and had adduced no evidence as to how he could better secure the

child's welfare.

1984 TLR p46

Save for the issue of custody, therefore, the appeal is otherwise dismissed. There will

be no order as A to costs.

Order accordingly.

1984 TLR p46

B