ZAINA ISMAIL v SAIDI MKONDO 1985 TLR 239 (HC)

ZAINA ISMAIL v SAIDI MKONDO 1985 TLR 239 (HC)

Court High Court of Tanzania - Tanga

Judge Kapoor Ag J

April 10, 1984

(PC) CIVIL APPEAL 29 OF 1982

Flynote

Family Law - Marriage - Presumption of marriage - Parties living together for five

years - F Whether a lawful marriage is thereby established - Law of Marriage Act,

1971, s 160(1).

Family Law - Custody of children - Right of custody of a child born out of

cohabitation without marriage - Law of Persons, GN 279 of 1963. G

-Headnote

The parties never contracted a marriage but they lived together in cohabitation for

five years, out of which a child was born. The respondent claimed custody of the

child. He lost in the Primary Court but won when he appealed to the District Court,

on the basis H that the parties had lived together for five years and therefore, the

court held, they were to be treated as duly married. The appellant appealed to the

High Court.

Held: (i) Under s. 160 of the Law of Marriage Act, 1971, parties can raise a

presumption of marriage if they have stayed together for a period of over two years;

but I the presumption is rebuttable and the intention of

1985 TLR p240

s. 160(1) is not to create an alternative procedure of contracting a valid marriage; A

(ii) because the parties were never married, the child born to the appellant is

an illegitimate child and the respondent cannot claim it now as he never legitimized

it in time by application through the Law of Persons, G.N. 279 of 1963; B

Case Information

Appeal allowed.

Case referred to:

1. Francis Leo v Paschal Simon Maganga [1978] L.R.T. 22 C

Judgment

Kapoor Ag. J.: Appellant was sued by the respondent who claimed custody of his

child born to the appellant on 25/2/1982.

The parties had lived together for nearly 5 years - but they were not lawfully married.

D The District Magistrate, in a very well written judgment gave custody of the child

to the respondent. His reasons for reversing the judgment of the Primary Court were

that anyone who sires a child adulterously cannot be held to claim the child.

The District Magistrate reasoned that since the parties had lived together for nearly 5

E years, as husband and wife, they were to be treated as duly married. The

authorities that he cited, were relevant to those parties who were lawfully married.

With respect to the District Magistrate, I cannot agree with his reasoning, which

made him to consider that the respondent and appellant were lawfully married.

Under the Law of Marriage Act, F parties can raise a rebuttable presumption of

marriage if they were staying together - for a period of over 2 years, in such

circumstances as to have acquired the reputation of being husband and wife.

This presumption may be rebutted if it can be proved that the parties had never gone

G through a ceremony of marriage recognised under the Act: Francis s/o Leo v

Paschal Simon Maganga [1978] LRT n.22.

The intention of the legislature under section 160(1) of the Law of Marriage Act is not

to give a general licence of Legal Marriage Status to parties who live together for two

years H and above in such circumstances. The Law of Marriage Act lays down strict

procedure through which a man and woman capable of contracting a marriage can

contract a valid marriage. Section 160(1) of the Law of Marriage Act only creates a

rebuttable presumption of Marriage. It does not create another method of contracting

a I Lawful Marriage under the Act.

1985 TLR p241

Hence it can be clearly stated that the only method of contracting Lawful Marriage in

A Tanzania is by following the laid-down provisions under Part II of the Law of

Marriage Act. In this case the parties themselves agree that they have not been

lawfully married. They just lived together. The rebuttable presumption is

adequately rebutted by the parties themselves. The Primary Court Magistrate had

framed this question as an issue B No. 4 and reached the conclusion that the parties

were not lawfully married; they were just living together.

Accordingly, the cases cited by the District Magistrate are not relevant to the

circumstances of this case. The respondent was not lawfully married to the appellant;

C hence the appellant's child born to the appellant on 25/2/82 is an illegitimate child.

The respondent could have legitimated this child before it weaned under Rule 181 of

G.N. no. 279 of 1963. This the respondent has not done and it is too late in the day

now for him to claim this child from the appellant.

I therefore, allow this appeal and grant custody of the child to the appellant.

Respondent D to pay appellant's costs of this Court and courts below.

Costs of this appeal are fixed at Shs. 268/= inclusive of court fees paid. E

Appeal allowed

1985 TLR p241

F