SAIDI MOHAMED v ZENA ALLY 1985 TLR 13 (HC)

SAIDI MOHAMED v ZENA ALLY 1985 TLR 13 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Lubuva J

(PC) MATRIMONIAL CIVIL APPEAL 6 OF 1983 E

Flynote

Family Law - Divorce - Cruelty as a ground for divorce - Meaning of cruelty. F

-Headnote

The respondent petitioned for divorce on the ground of cruelty in a primary court

where she was unsuccessful. On appeal to the district court she won whereupon the

appellant decided to challenge the district court's ruling in the high court. It was

established by evidence that the appellant was in the habit of beating the respondent.

It G was in evidence that the appellant threatened to kill the respondent. Moreover

he, once stripped her naked before other people including her father-in-law.

Held: (i) Cruelty means wilful and unjustifiable conduct of such a character as to

cause danger to life, limb or H health, bodily or mental, so as to give rise to a

reasonable apprehension of such danger;

(ii) the appellant's conduct of not only beating but also undressing his wife

infront of other people generally, and her father-in-law in particular was an

embarrassing and distressing act of cruelty which inflicted I considerable physical

and mental torture to the respondent.

1985 TLR p14

Case Information

Appeal dismissed. A

Case referred to:

1. Russell v Russell [1897] A.C. 395 B

Jugdgment

23 September, 1985. Lubuva, J.: Before Mkamba Primary Court in Kisarawe District,

the Respondent filed proceedings seeking divorce against the Appellant, her husband.

She was unsuccessful before the Primary Court from whose decision, she appealed to

the District Court Kisarawe. Her appeal was allowed wherein the C marriage was

ordered dissolved. From that decision the appellant has appealed.

In her testimony before the Primary Court, the Respondent gave what appears to be

quite a detailed version of events of cruelty against the appellant which ultimately

gave rise to the petition for divorce. She had alleged that D the appellant was in the

habit of beating and stripping her naked before other people. She cited one incident

in which she was beaten and had to seek refuge at the house of the ten cell leader one

Athumani Kindumbo. The appellant admitted to have done so and pleaded to be

forgiven by the Respondent before the ten-cell leader pledging not to repeat such

incident. This incident is not denied by the appellant who as a matter of fact gave E

Shs.10/= to the Respondent by way of appeasing her. The ten-cell leader Athumani

Kindumbo (PW.1) also gave supporting evidence on the matter. The Respondent also

alleged that on another incident, the Appellant F again beat her up and the matter

was taken to the Police dispensary and the ten-cell leader who, according to her was

insisting that she should continue staying with the appellant and was not keen to

have the matter taken to court. On this occasion, the Respondent alleges that the

Appellant agreed to pay the Respondent Shs.50/= so as to have the matter settled

amicably at home. In regard to this, there does not seem to be any dispute raised as

G the Appellant himself admits in his defence when cross examined by the court

when he states:

.... Nimeona nimekosa ndiyo maana nimelipa faini ya Shs. 50/= kwake.

This means therefore that apart from the incident in which the Appellant agreed to

pay Shs.10/= to the H Respondent, there was another incident as the respondent

claims in which she was beaten resulting in the payment of Shs.50/=. This is because,

the Appellant admits of only one incident of beating his wife, the I Respondent

when he offered to pay Shs.10/=, to the Respondent in appeasement. On record, it is

also shown that as the hearing of the suit was going on, the Respondent reported to

the

1985 TLR p15

LUBUVA J

Court that the Appellant was threatening to kill her. The Respondent was thus

ordered to stay at her father's A house until the day of judgment. On such evidence

the Primary Court Magistrate who sat with two assessors in agreement with the

assessors was of the opinion that no sufficient evidence had been adduced in support

of the B Respondent's case. That cruelty had not been proved to the extent of

warranting the dissolution of the marriage. The Respondent appealed to the District

Court Kisarawe District.

The learned district Magistrate in a well reasoned judgment analysed the entire

evidence as adduced before the C Primary Court. He came to the conclusion that

the evidence as adduced sufficiently proved cruelty on the part of the Appellant the

husband in terms of the provisions of Section 107(2)(c) of the Law of Marriage Act,

1971. Having believed as the Primary Court did in the truthfulness of the evidence of

the Respondent the learned D District Magistrate found as an established fact that

the Appellant had been in the habit of beating his wife, the Respondent and had

stripped her naked before the Appellant's father. This, in the view of the learned

District Magistrate was sufficient cause of mental and physical torture on the part of

the respondent. As pointed out, the learned District Magistrate held that the

marriage had in the circumstances broken down irreparably. The E Appellant's

main ground of appeal is that the beating of his wife the Respondent was an isolated

incident which took place way back in the past was not sufficient to prove cruelty.

He maintains that he still loves his wife in which case it was erroneous on the part of

the learned District Magistrate in upsetting the decision of the Primary Court.

At the hearing of the appeal, the Respondent stressed that she is no longer interested

to live with the Appellant as F man and wife due to the persistent cruel behaviour of

the Appellant towards her. She contended that though the Appellant had promised

before the ten-cell leader not to repeat beating or undressing her infront of other

people, he does not adhere to his word. The Appellant did not want to say anything

before this court apart from G his statement that anything that the court decides

would be alright for him, he repeated his pleading that he was still in love with his

wife, the Respondent. On the main, there is no dispute that the gravamen of the case

is centred on the question of cruelty on the part of the appellant. Cruelty is defined

by Tolstoy in his book, The H Law and Practice of Divorce and Matrimonial Causes,

5th Edition at page 60 as:

.... Wilful and unjustifiable conduct of such a character as to cause danger to

life, limb, or health, bodily or mental, or as to I give rise to a reasonable

apprehension of such a danger.

1985 TLR p16

Such was also the holding of the House of Lords in the case of Russell v Russell (1897)

A.C. 395. I would A with respect adopt and apply this principle of law to the instant

case. With this guiding principle, there can be no doubt that the learned District

Magistrate was justified in his decision. There was sufficient evidence from the B

petitioner the respondent which was believed as truthful as well as the supporting

evidence of Athumani Kindumbo (PW.1) which amply proved the petitioner's claim

that the marriage had irreparably broken down. Apart from this, it is also clearly

shown on record that as the proceedings were going on before the Primary C Court,

because of the Appellant's threats to kill the Respondent, the court ordered the

Respondent to stay with her father and at the same time, Appellant was warned not

to repeat such behaviour. This is yet another piece of evidence which fully supports

petitioner/Respondent's claim against the cruel behaviour of the Appellant. The D

Appellant's conduct of not only beating but also of undressing her infront of other

people in general and particularly her father-in-law was no doubt a most

embarrassing and distressing act of cruelty which inflicted considerable physical and

mental torture on the Respondent.

From such evidence as a whole, and what I have heard from the parties themselves at

the hearing of the appeal, E the Respondent who is strongly objecting to live

together with the Appellant and cannot be compelled to do so by court proceedings, I

am satisfied that the learned District Magistrate' decision was justified. In the event,

the appeal is dismissed with costs.

F Appeal dismissed.

G