DR. C. MHINA v NATALIA M. MHINA 1984 TLR 144 (CA)

DR. C. MHINA v NATALIA M. MHINA 1984 TLR 144 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Mustafa JJA and Kisanga JJA

September 17, 1984

CIVIL APPEAL NO. 16 OF 1984

Flynote

Family law - Custody of Children - Whether allegation of emergency situation has to

exist before a B pendente lite order for custody of children.

Family Law - Maintenance of spouse - When court is empowered to make interim

order of maintenance. C

-Headnote

The respondent in this appeal had filed a petition for dissolution of her marriage with

the appellant and for other reliefs. After the petition had been filed she filed a

chamber application supported by an affidavit seeking custody of the children of the

marriage and maintenance pendente lite for herself and the children. The trial judge

ruled that there were no exceptional circumstances to D warrant the court to make

an interim order of custody but granted a maintenance order for the respondent and

child. The present appeal is against that ruling. E

Held:An interim order for maintenance should only be made upon hearing both

parties.

Case Information

Appeal allowed.

No case referred to. F

R.C. Kesaria for the appellant

M.A. Lakha for the respondent

[zJDz]Judgment

Mustafa, J.A. delivered the following judgment of the court: G

The respondent in this appeal had filed a petition for dissolution of her marriage with

the appellant and for other reliefs. After the petition had been filed she filed a

chamber application supported by H an affidavit seeking custody of the children of

the marriage and maintenance pendente lite for herself and the children.

The application was opposed by the appellant, who filed an affidavit in reply. The

application came before the High Court (Mnzavas, J.K.). Mr. Lakha, who has

appeared for the appellant I

1984 TLR p145

MUSTAFA JA

A before us also appeared for him at that interlocutory application. He raised a

preliminary objection, submitting that as there was no allegation of any emergency

situation necessitating an interim order for custody, no order for custody could lie as

it was an issue to be decided at the B hearing of the petition. As regards the issue of

maintenance he submitted that there was no material before the Court for it to make

decision on that matter. He asked for the dismissal of the application.

Mr. Kesaria for the appellant submitted, as he has also done before us, that the court

was C empowered by certain of the provisions of the Law of Marriage Act, 1971, to

deal with the issues of custody and maintenance in terms of the application filed by

the wife.

In his ruling the trial judge held that he could see no exceptional circumstances to

warrant a court making an interim order of custody. However, he held that the

respondent should pay the wife and D the child who is in her custody shs. 1,200/=

per month pending determination of the petition.

Mr. Lakha has attacked that ruling. He submitted that the trial judge should have

confined his ruling to the preliminary objection he had raised, and should not have

dealt with the merits of the E application at that stage. He complained that his

client had in fact been condemned unheard. In our view the judge should have either

upheld or rejected the preliminary objection, and if he rejected it, then it was then for

the parties to argue the application on the merits. In that event either party F would

have had the opportunity of presenting facts and evidence, if any, before the court for

it to make a decision.

We agree with Mr. Kesaria that the trial judge was empowered to make an interim

order for maintenance, but he should do so only after hearing the parties. Here the

argument before him was G on the preliminary objection raised by Mr. Lakha as to

the maintainability of the application. He should have confined his ruling to that

issue at that stage. However, he went further, and decided the issue of maintenance

without giving the appellant an opportunity of presenting his arguments H and

evidence on the matter in controversy. That is clearly in error.

In the circumstances we allow the appeal and set aside the interim order for

maintenance. We make no order as to costs.

I Appeal allowed.

1984 TLR p146

A