MWINYIHAMISI KASIMU v ZAINABU BAKARI 1985 TLR 217 (HC)

MWINYIHAMISI KASIMU v ZAINABU BAKARI 1985 TLR 217 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

December 31, 1985

(PC) MATRIMONIAL APPEAL 3 OF 1982 H

Flynote

Family Law - Divorce under Islamic Law - Dissolution of marriage under Islamic Law

- Wife obtaining divorce by self - redemption (khului) - Law of Marriage Act, 1971,

s.107(3).

Family Law - Separation of spouse - Whether court may compel a spouse to live with

the I other - Law of Marriage Act, 1971, s.40.

1985 TLR p218

Islamic Law - Divorce - Dissolution of marriage under Islamic Law - Wife obtaining

divorce A by self- redemption (khului). - Law of Marriage Act, 1971, S.107(3).

-Headnote

The parties were married under Islamic Law and after living together for over 13

years, the respondent petitioned for divorce. The Primary Court dismissed the

petition and her B appeal to the District Court was also dismissed. But the District

Court magistrate advised that because theirs was an Islamic marriage, the respondent

could still obtain divorce by redeeming herself (kujikhului) by returning the dowry

which the appellant had paid and that this would be in accord with s.107(3)(c) of the

Law of Marriage Act, C 1971. Subsequently the respondent applied to the court to

redeem herself as advised, and her application was allowed ex-parte. The husband

brought this appeal to the High Court.

Held: (i) In order for the court to make a finding that a marriage is irreparably

broken D down and to grant a decree of divorce as per s.107(3) of the Law of

Marriage Act, 1971, it must be proved firstly, that the parties were married under

Islamic Law, secondly, that a Marriage Conciliation Board has certified its failure to

reconcile the parties and, thirdly, that subsequent to the Board's failure to reconcile

them one of the E parties has done an act which, under Islamic Law, is sufficient to

terminate the marriage;

(ii) in order for s.107(3) of the Law of Marriage Act, 1971, to come into play,

all the three things must be proved to the satisfaction of the court hearing the petition

for divorce, and they must be proved before judgment is entered, not after; F

(iii) while it was established to the satisfaction of the court before judgment

was entered that the parties were married according to Islamic Law and that the

Conciliation Board had failed to reconcile them, the third requirement, that any one

of them had done G an act sufficient to terminate the marriage under Islamic Law,

was not so established;

(iv) even if the act of the respondent redeeming herself by returning the

dowry could constitute an act to terminate marriage under Islamic Law, that act was

legally ineffectual in this case because it was done after the court had pronounced

judgment; H

(v) as s.140 of the Law of Marriage Act, 1971, does not empower any court to

compel a wife to live with her husband or a husband with his wife, an application for

an order to compel the respondent to return to the appellant cannot be entertained; I

Case Information

Order accordingly

1985 TLR p219

SISYA J

No cases referred to. A

L.G. Haule, for the respondent.

Judgment

Sisya, J.: The appellant and the respondent went through a B ceremony of marriage

under Islamic rites on 13th November, 1967. During their thirteenth year of peaceful

cohabitation a rift appeared in the union. After making unsuccessful attempts at

reconciliation the respondent, eventually, went to Usambara Primary Court of Tanga

District and petitioned for divorce.

The petition which the respondent filed in the Court of first instance is not dated, nor

C does it show the date of presentation or filing. From an endorsement (the first one

in the record of proceedings) in the case file it appears that the latter was done on

25/9/81. Be it as it may the grounds raised by the respondent in her petition for

dissolution of the D marriage were two fold, namely cruelty both mental and

physical, inflicted by the appellant on her and wilful neglect on the part of the

appellant. In support of her claim the respondent who, incidentally, was the only

witness on her side swore that there was no understanding of each other between

herself and the appellant; that the appellant used to attack her, presumably physically,

often; i.e. the appellant, used to pour abuses on her E including accusations that she

was having incestuous relations with her own brother; and that he was not providing

her with necessaries of life.

The appellant contested the petition and he denied the respondent's allegations.

According to him he did everything that he could to please the respondent but the

latter F would not care a jot. He provided her with necessaries of life. The only

exception was when the respondent deserted the matrimonial home. According to

the appellant he suspected that there was a man behind the misunderstandings in

their marriage. He concluded by saying that he, nevertheless, was in love with his

wife, the respondent.

By a majority decision the Court of first instance found that the respondent had failed

to G prove her allegations and consequently establish that the marriage between

herself and the appellant had irretrievably broken down. The Court, therefore,

dismissed the petition. Aggrieved, the respondent appealed to the District Court.

The learned Principal District Magistrate on first appeal directed himself in the

following H terms and I quote from his judgment:

Nimechunguza kwa makini ushahidi wote uliotolewa mbele ya Mahakama ya

Mwanzo, Mwomba rufaa (i.e. the respondent in this instant appeal) hakuthibitisha

hata moja ya sababu I alizotoa na kutaka kuachana.

1985 TLR p220

SISYA J

The learned Principal District Magistrate dismissed the respondent's appeal.

However, A before proceeding to do so the learned Principal District Magistrate had

the following to say and, again, I quote from his judgment:

Kwa kuwa ndoa yao lilifungwa kwa mujibu wa dini ya Kiislamu, na kwa kadiri

mambo yalivyo, B Mwomba rufaa anaweza kupata talaka kwa kujigomboa (khului)

kama ilivyo katika kifungu cha 107(3)(c) cha sheria ya ndoa. Mpaka atakapofanya

hivyo ndoa yao inabaki pale pale haiwezi kuvunjwa. C

Judgment was delivered by the learned Principal District Magistrate on 26/6/82 in the

presence of the respondent but in the absence of the appellant.

As can be gleaned from the record of proceedings of the District Court, on 13/9/82 the

respondent appeared before the learned Principal District Magistrate and made an D

exparte application to redeem (kujikhului) herself by returning the dowry which the

appellant had paid. The respondent is recorded to have stated before the learned

Principal District Magistrate that she had looked for her husband, the appellant, but

failed to trace him. The learned Principal District Magistrate then, with respect, E

perfunctorily, ordered as follows:

Amri: Kwa kuwa jitihada za kumtafuta mumewe zimeshindikana na mke hana

budi kuachwa kwa hali ya mambo yalivyo kufuatana na sheria za kiislamu. Mke

ajigomboe kwa kulipa F khului inayolingana na mahari yaliyotolewa ambayo ni shs.

150/=. Fedha iwekwe amana mahakamani hadi mume atakapojitokeza.

Despite the allegation that the appellant was nowhere to be seen he came to know

about G the order. He was dissatisfied and hence this present appeal to this Court.

In his reasons of appeal the appellant asserts that it is not true to say that he was

nowhere to be seen and quotes that all process from the Court of first instance were

being served on him without difficulty. The appellant complains that the learned

Principal H District Magistrate erred on the issue of redemption (khului) and he

further urges the Court to make an order against the respondent for restitution of

conjugal rights.

This being a second appeal it can, therefore, only be entertained on a point or points

of law. The learned Counsel for the respondent, Mr. Haule, argued that both Courts

I below erred in failing to find that the

1985 TLR p221

SISYA J

marriage between these parties had irreparably broken down because the appellant is

a A poor man and, therefore, he cannot afford to support the respondent and further

that there was evidence of abuses and insults uttered by the appellant which

amounted to cruelty. All these are matters of fact for which, with the greatest respect

to the respondent's advocate, this Court has no room for consideration at this time. B

On the other hand there are points of law involved in this appeal and these centre on

the interpretation of section 107(3)(c) of the Law of Marriage Act, 1971, and on the

issue of Redemption (Khului). It seems to me that the learned Principal District

Magistrate C completely missed the import of s. 107(3)(c). One of the reasons why

he did so is, I think because he read Paragraph (c) separately from the rest of subsection

(3). In fact sub-section (3) of section 107 must be read together and not in

parts in order to comprehend the same. To begin with section 107 of the Law of

Marriage Act, 1971, deals with evidence that a marriage has broken down. Subsection

(3) reads: D

(3) Where it is proved to the satisfaction of the Court that -

(a) the parties were married in Islamic form; and

(b) A Board has certified that it has failed to reconcile the parties; and E

(c) subsequent to the granting by the Board of a certificate that it has failed

to reconcile the parties, either of them has done any act or thing which would, but for

the provisions of this Act, have dissolved the marriage in accordance with the Islamic

law, the Court F shall make a finding that the marriage has irreparably broken down

and proceed to grant a decree of divorce.

There are three conditions here all of which must be satisfied before sub-section three

can be invoked or before it comes into play. G

Taking the present case as an example, it was established that the parties were

married in Islamic form. This satisfies Paragraph (a). That is, however, not the end of

the story. We move to the next stage and that is Paragraph (b). A Bakwata

conciliatory Board did certify in this instance that it had failed to reconcile the

parties. Mention should H perhaps be made that the certificate under reference here

is the same as that mentioned in section 101 of the Marriage Act. Then, finally,

comes the paragraph under querry, i.e. Paragraph (c). What it, i.e. Para (c), stipulates

is that if,after the Board has already issued a certificate that it has failed to reconcile

the parties, one of the parties - in this I instance, say, for example, the appellant -

does an act or thing which under Islamic law is sufficient to

1985 TLR p222

SISYA J

terminate the marriage - for example, he utters or issues a talaka or talaks sufficient

to A dissolve the marriage under Islamic law - then the Court hearing the petition is

enjoined to make a finding that the marriage has broken down irretrievably and to

proceed to grant a decree of divorce. Evidence of performance of the offending act or

thing must, invariably, be given at or during the hearing of the petition or putting it

B broadly, before judgment and not thereafter. If 'Khului' is an act or thing capable,

perse, of dissolving a marriage under Islamic law then, in this instance, the

respondent should have done it at any time after the certification by the Board and

before judgment. She did not do so. Instead she did it after judgment had already

been delivered. C Assuming - which is the most I can do in this matter at the

moment - that 'Khului' is one of the acts or things envisaged by Paragraph (c) then,

for reasons already given, the one under querry is legally ineffectual, and I so hold.

I have already pointed out above that evidence of the act or thing mentioned in Para

(c) must be adduced at the hearing of the petition. In this connection it is open to me

to D hold, which I do, that the paragraph (quoted supra) in which the learned

Principal District Magistrate advised the respondent to redeem herself under section

107(3)(c) is a serious misdirection in law. Suffice to say that the order of the Court

below (dated 13/9/82) allowing the respondent to redeem herself is without any basis

in law. The E same cannot be allowed to stand and it is hereby quashed. The end

result is that the appellant and the respondent are, in law, still husband and wife. The

sh.150/= which were deposited per receipt No.548673 of 13/9/82 should now be

refunded to the respondent. F

Para 4 of the appellant's reasons of appeal reads, and I quote:

4. Naiomba Mahakama Kuu itoe Amri ya Mwomba (Sic) rufaa (mke

wangu) arudi nyumbani kwangu. G

Section 140 of the Law of Marriage Act, 1971, reads:

140. No proceeding may be brought to compel a wife to live with her husband

or a husband with his wife... H

This should be sufficient to dispose of Para. 4 of the appellant's reasons of appeal.

Much as this Court sympathises with him his plea on this point cannot be entertained

as the same is contrary to dictates of the law. I

1985 TLR p223

All in all this appeal succeeds to the extent indicated. It also fails as indicated. I make

A no order as to costs.

Order accordingly.

1985 TLR p223

B