JULIA MAZENGO v JACKSON LEGANGA 1986 TLR 244 (HC)

JULIA MAZENGO v JACKSON LEGANGA 1986 TLR 244 (HC)

Court High Court of Tanzania - Dodoma

Judge Samatta J

15th September, 1987. A

(PC) MATRIMONIAL CIVIL APPEAL 1 of 1986

Flynote

Family Law - Divorce - Grounds - Cruelty - What amounts to cruelty. B

-Headnote

The appellant petitioned for divorce before a Primary Court on the ground that quite

often the respondent used to subject her to violence. The court granted the divorce

after being satisfied that the marriage had broken down C irreparably. The District

Court reversed the decision of the Primary Court on the ground that the ill-treatment

to which the appellant was subjected was reasonable tear and wear of married life. It

was in evidence that the respondent assaulted the appellant on three occasions. On

one occasion the assault was perpetrated when she was nine months pregnant. D

Held: The Primary Court was right, when these assaults are considered in the light of

the general atmosphere prevailing at the matrimonial home, to hold, as it did, that the

parties' marriage had irreparably broken down. E

Appeal allowed.

Case referred to:

1. McEwan v McEwan (1946) 108 Sol. Journ. 198 F

[zJDz]Judgment

Samatta, J.: This is an appeal from a decision of the District Court of Mpwapwa

District whereby a decision of the Primary Court of Zoissa dissolving the parties'

marriage was set aside. G

Having given the case anxious and, I hope, careful consideration, I have reached the

settled opinion that the appeal must be allowed. The appellant based her prayer for a

decree of divorce on the ground that quite often the respondent used to subject her to

violence. In his evidence the respondent asserted that he beat up the H appellant

only on one occasion; he asserted that he did so because she provoked him. The

Primary Court analysed the evidence at length and came to the conclusion, among

others, that the appellant had established that the respondent had assaulted her on

three (separate) occasions. The district Magistrate was unable to uphold I this

finding.

1986 TLR p245

SAMATTA J

In his opinion, the appellant had proved only two instances of assault. The magistrate

went on to say: A

... The basic question in this case was whether: If a husband is guilty of

assaulting his wife twice, would that (on its own) B entitle a court to hold that the

marriage has irreparably foundered and consequently tear the marriage vows apart?

In my considered view, I think it would not. Admittedly, no persons has any right to

assault his or her spouse - (although s. C 66 of the Act speaks of the infliction of

corporal punishment). However, I do not think that if a person is found guilty of

assaulting his spouse twice, and such assaults are not serious, that would make a court

of law conclude that the marriage has irreparably broken down. As it was rightly

observed by Lord Denning, L.J. (as he then was) Married couples D have to put up

with all vexations, the quarrels, and the troubles which are ordinary incidents of

married life. They have taken each for better and for worse. They must put up with

temperament and defects of character of each other. But there E may come a time

when defects of character or temperament may be such as to amount to cruelty, but it

all depends on the facts of the (See the case of Mc Ewan v Mc Ewan (1946) 108 So.

Jour. 198). Similarly, it is common ground to expect misunderstanding in the married

life - which may culminate in person assaulting his or her spouse. If such incidents F

occur - and a person twice assaults his or her spouse - I do not think that that alone

would be sufficient to justify a reasonable tribunal to conclude that the marriage vows

have been torn apart beyond repair. A marriage bond or contract G (for that matter)

- sanctity as it is should not be set aside lightly; in the absence of evidence that the

same has foundered beyond repair.

While I entirely agree with the District Magistrate that a marriage bond should not be

set aside lightly, I am unable H to share his view that the Primary Court strayed into

an error in holding, as it did, that the appellant had established that she had been

subjected to violence on three occasions. The Primary Court's finding was founded

upon the evidence of the appellant as corroborated by the testimony of Thadayo

Mkoi, a Church I Councillor, who told the trial court that the respondent admitted

before the Church Council to have assaulted the appellant on three occasions. I also

disagree

1986 TLR p246

SAMATTA J

with the District Magistrate on his finding that the parties' marriage has not

irreparably broken down. There can A be no doubt that at least on two of the three

occasions the assaults were serious ones. One of those occasions was referred to by a

member of a local Reconciliation Board, Afoniso Shauri. The witness told the trial

court this

Nakumbuka mdai ndiye aliyekuja kushitaki kwamba amepigwa na Bwana

wake (mdaiwa). Bwana wake akaitwa akaja B hapo akakana kwamba hakumpiga

ikabidi huyu mdai apate barua aje kwenye hospitali alivyokuja akachunguzwa C

akaonekana alipata maumivu kwenye mkono wa kulia na alivimba kwenye Bega na

jicho la mkono wa kulia lilikuwa lekundu ndipo hapo akakubali mdaiwa kwamba

kweli alimpiga mdai...

The second occasion was when, according to the appellant's evidence (which was not

challenged on the point), D the assault was perpetrated when the appellant was nine

months pregnant. In my opinion, the Primary Court was right, when these assaults

are considered in the light of the general atmosphere prevailing at the matrimonial

home (described by the appellant in her evidence and to a limited extent admitted by

the respondent), to hold, as E it did, that the parties' marriage had irreparably

broken down. The ill-treatment which the respondent has been subjecting the

appellant to cannot, in my considered opinion, be described as the reasonable wear

and tear F of married life. The law does not expect a wife to put up with the kind of

ill-treatment the respondent has been subjecting the appellant to. I would allow the

appeal.

The appeal is allowed, the decision of the District Court is recalled and that of the

Primary Court restored. The appellant will have her costs in this Court as well as in

the two courts below. G

Appeal allowed.

1986 TLR p247