Mariam Tumbo v Harold Tumbo 1983 TLR 293 (HC)

MARIAM TUMBO v HAROLD TUMBO 1983 TLR 293 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

January 19, 1983 E

MATRIMONIAL CAUSE 1 OF 1982

Flynote

Family Law - Petition for Divorce - Requirement of reference to Marriage

Conciliatory Board prior to petition - S. 101 of the Law of Marriage Act, 1971.

Family Law - Divorce - Evidence of breakdown of marriage - Cruelty - Constructive desertion - Adultery - S. 107 of the law of Marriage Act, 1971.

Family Law - Custody of children - Welfare of infant children - Independent opinions of children- Age of children to be taken into account.

Family Law - Division of matrimonial assets - Meaning of work towards the acquisition of assets- Whether housekeeping is contribution to acquisition of matrimonial assets.

-Headnote

The parties to this proceeding were married under Christian rites in 1958 and have seven issues of the marriage. The petitioner sought dissolution of marriage alleging adultery, cruelty and desertion. She also prayed for custody of the youngest five children and for the division of assets. The respondent has cross-petitioned for divorce, alleging cruelty I and desertion. He also prayed for custody of the youngest three children.

Held: 

(i) Under paragraph (f) of the proviso to s. 101 of the Law of Marriage Act, 1971 the court may dispense with reference to the Marriage Conciliatory Board where it is satisfied that there are extraordinary circumstances which make reference impracticable;

(ii) it is one thing to tolerate a spouse's misconduct, it is another to put up with the consequences thereof; in contemplation of this the legislature enacted s. 85 of the Law of Marriage Act, 1971 that evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground that the misconduct was condoned by the aggrieved spouse;

(iii) when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances, would consider that the conduct complained of is such that this spouse should not be called on to tolerate it;

(iv) it is settled that where one spouse behaves in such a manner that the other is virtually compelled to leave, the former may in law be the deserter; it is imperative for there to be conduct which amounts to dismissal from the consortium;

(v) in matters of custody the welfare of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion, the court is obliged to have regard to his or her wishes;

(vi) in accordance with s. 114(2)(b) of the Law of Marriage Act, 1971, the court is required in exercising its power of division of assets to have regard to the extent of contributions made by each party in money, property or work towards the acquiring of the assets; housekeeping is a conjugal obligation and cannot be equated to work which refers to the physical participation in the production of the asset itself.

Case Information

Order accordingly.

Cases referred to:

1. Khan v Khan [1973] LRT n. 57.

2. Russell v Russell [1897] A.C. 395 (H.L.).

3. Gollins v Gollins [1963] 2 All E.R. 966. H

4. Buchler v Buchler [1947] 1 All E.R. 319.

5. Marwa v Akeyo [1977] L.R.T. n. 39.

D.C. Mbezi for the respondent. I

Editorial Note: See the Court of Appeal decision in Bi Hawa Mohamed  v Ally Sefu (in this volume), that since the welfare of the family is an essential component A of the economic activities of a family man or woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial for family assets.

[zJDz]Judgment

Lugakingira, J.: The parties to this proceeding went through a Christian ceremony of marriage at Itigi in November, 1958 and cohabited at various places, including Musoma and Singida. There are seven issues to the marriage, the last having been born in 1970. On account of the events set out below the marriage broke down in 1981 and the wife returned to her parents. She then petitioned for dissolution of the marriage alleging adultery, cruelty and desertion. She also prayed for custody of the youngest five children and for the division of assets. In reply to the petition, the husband denied the charges levelled against him. He then cross-petitioned for divorce, similarly alleging cruelty and desertion. He prayed for custody of the youngest three children. In this judgment I will refer to the husband as respondent. I was satisfied that there was no collusion in bringing the proceeding.

It can be said with a degree of certainty that the trials that beset this union surfaced in 1977, but the roots can be traced back to 1970. In that year, after the birth of the last child, the petitioner was taken victim of unpredictable menstrual visitations. This development cast a shadow in the marital relationship for it meant that the petitioner could no longer render as before her conjugal obligations. The medical evidence tendered before me indicates that the petitioner's state assumed malignant proportions in the second half of 1977. She was then referred to Bugando Hospital at Mwanza. The  parties were at that time stationed at Musoma, the petitioner being a teacher and the respondent a security officer. Unfortunately, I was not appraised as to the degree of the petitioner's recovery, but I sincerely hope that she is now relieved of what must have been an irritating experience.

However, while the experience lasted, and early in 1977, the respondent decided it was time he had another "wife". I will refer to this one as the second woman. The respondent announced his intentions to the petitioner. The latter protested strongly but her protests met with increased determination. The respondent vowed that he would go ahead with his intentions even if it meant his death. He told her that she could go away if she was not disposed to the idea. In any case, he taunted her, he could not take advice from a "mvaa mlembe", i.e. one perpetually with a tampon pad.

The second woman was also a teacher and stationed at Bunda. The respondent went ahead and paid bride-price to her parents in March, 1977. He then "married" her but she remained I at Bunda. Later that year they had a child. In September, 1978, the respondent was transferred to A Singida. He moved to his new station with the petitioner and the second woman, both of whom he installed in the same house. The second woman delivered another child in November, 1978. She was pregnant at the time of the petitioner's departure in July, 1981.

Life took a more dramatic turn when the parties moved to Singida. The respondent became increasingly attached to the second woman and increasingly alienated from the petitioner and her children. Hence, whenever it was the second woman's turn to host him, he would overshoot his stay. When it was the petitioner's turn, he would still remain in that woman's room until very late, then come and drop in the petitioner's bed and straight go to sleep. Early in the morning he would retire to the second woman's room, there to while away the remaining moments of dawn. The petitioner further claimed that the respondent took to beating her and her children on baseless and endless complaints by the second woman. He would sometimes do so right in the presence of that woman. And whenever he did so, he would tell the petitioner that he was over with her and threaten to kill her if she would not leave. The petitioner told me that she complained to various persons and places, including the Area Commissioner, the Regional Police Commander, the respondent's father, the respondent's office, the E Primary Court and the District Court, but got no assistance. The tragedy of it all was that she got a beating whenever the respondent learned that she had complained against him. On one such occasion, he broke her nose. On 9 July, 1981, the petitioner proceeded to Tabora for an interview.

In her absence, the respondent discovered that F their second child, a daughter, was pregnant. He also discovered that their fourth child, another daughter, was fraternising with a guard at the Regional Commissioner's residence. She was cooking food and taking it to this guard from provisions in the respondent's house. The respondent picked up the telephone and rang the petitioner at G Tabora to inform her of these discoveries. There was an argument for he believed, and so told the petitioner, that she already knew of these developments but had kept him in the dark.

It was therefore with trepidation that the petitioner returned to Singida on 24 July. It was common ground that there was no quarrel when she arrived. After dinner the petitioner retired to bed. Not much later the respondent came into her room, looked into the wardrobe and left. He returned shortly, hung up a trousers in the wardrobe and left again. He returned yet again and on this occasion he asked the petitioner where his bullets were. The respondent possessed a pistol. The petitioner did not know where I they were and told him so. The respondent got out, entered his vehicle and drove off. The petitioner sensed danger. She told the Court that when she recalled the many times the respondent had threatened to kill her, his fulmination at the tragedy and misconduct of their daughters, and for which he held her responsible, and now that he was looking for bullets, she believed that her life was in imminent danger. She fled and spent the night in the hedge. When the respondent returned he discovered that not the petitioner only, but their fourth, sixth and seventh children had also vanished. He had already expelled the second child who had become pregnant. He reported the disappearances to the police that same night. Next morning the petitioner turned up at the house of the Regional Planning Officer. She requested him to call the Regional Commissioner, the Regional Development Director and the Regional C Police Commander in order that they might intercede with the respondent for her. The latter two were found, but efforts to get the respondent initially proved fruitless. In the interim they advised the petitioner to return to her parents at Itigi until the respondent had been found and talked to.

She left for Itigi. I gathered from the respondent that he was subsequently found. When D told of the position he said all he wanted were his children. It is not clear where the children were found, but they were duly returned to the respondent on 26 July. The petitioner remains at Itigi todate. In August she was joined by the fourth and fifth children. The sixth and seventh joined her in November. Early last year the third child followed suit. Meanwhile, the petitioner received no word of the promised intercession. She therefore twice wrote to the respondent to consent to her being posted elsewhere but got no reply. She remains unemployed todate. The respondent even refused to procure school transfer certificates for the fourth to seventh children. But somehow they managed to continue with their education.

The petitioner visited and wrote to various offices seeking assistance in her problems. She was invariably advised to take her "shauri" to court. She filed her petition on 19 August, 1982. She was unrepresented. The respondent was represented by Mr. D.c. Mbezi.

As already stated, the respondent denied the petitioner's charges, except that of adultery where he pleaded condonation. In turn he alleged that the petitioner had turned the children into delinquents. The second child had become pregnant and the fourth later became so. The third had become a truant, a thief and a bhang smoker.

He also accused the petitioner of seeking assistance in witchcraft. He produced certain articles in that connection to which I shall later refer. The petitioner in turn denied these charges.

A number of issues were framed at the start of the trial centering on the matters already I stated or alluded to. Evidence was also led on the issue of reference to the Marriage Conciliatory Board. Since the respondent's side expressed doubts on that aspect, I propose to begin with that issue.

On 26 July, 1982 the petition saw the chairman of the Itigi Church Conciliatory Board to whom she narrated her problems. On 1 August, the chairman called a meeting of the Board but a quorum was not reached. He convened another meeting on 5 August and on this occasion there was a quorum. The Board heard the petitioner and after weighing a number of difficulties, in particular that of summoning the respondent, they advised her to take the matter to the Singida Board.

On 6 August, the petitioner proceeded to Singida and saw the Board Chairman there. He listened to her but in turn advised that the matter be dealt with at Itigi where the marriage was solemnised. She returned to Itigi and on 8 August the Itigi Board met again. It seems that a sort of apprehension attached to the respondent's office.

The Board literally recoiled at the thought of summoning a security officer. In the words of the petitioner, "They tried to discuss how to summon the respondent. They thought if the respondent were to appear, there would be no guarantee for my security. They therefore decided to dispense with the respondent and gave me a letter to the court". In deciding as they did it seems also that the Board was influenced by the apparent gravity of the matrimonial difficulty presented to them. They did not see the prospect of reconciliation. It further appears that this apparent scare was not confined to the Board alone. The petitioner alleged that even the District Court of Manyoni declined to entertain her petition claiming that the respondent could not be sued in the region he worked!

The question arises whether the steps taken by the petitioner amounted to reference to the Board. It could be discerned from Mr. Mbezi's cross-examination that he doubted whether these steps amounted to a reference. But that was all I mean: doubts only. I did not otherwise have the advantage of learning his reasons. There were no arguments at the end of the trial. I have no doubt, however, that the question is an important one, and in so far as I am aware, it is perhaps the first time that it has presented itself. Nevertheless, I wish cautiously to refrain from offering or suggesting any answer here, seeing that it is not necessary to do so. I think that the facts stated, the various steps taken by the petitioner, the difficulties and frustrations she met, the performance and admitted competence of the Board in fact Boards - bring the case within the ambit of para. (f) of the proviso to s. 101 of the Law of Marriage Act, 1971 (hereinafter referred to as "the Marriage Act"). Under that paragraph the court may dispense with reference to the Board where it is satisfied that there are extraordinary circumstances which make I reference impracticable.

The case of Khan v Khan 1973 LRT no. 57 is authority for the view that prior leave of the court is not mandatory before the court can exercise its discretion under para. (f). In this case the Board was duly invited to deal with the matrimonial difficulty.

Twice the Board met and twice it found itself without muscle, both as regards the presumed stature of the respondent and the complexity of the difficulty, to attempt any reconciliation. It then remitted the difficulty to the court per Exh. P6. I do not believe that it is in a better position today. It would thus be a futile exercise to require the petitioner to return to the same Board. In that sense I regard reference as being impracticable. In the case cited above, Onyiuke, J. held that the term "impracticable" in para. (f) is not to be limited to physical impracticability. He then went to say:

The discretion conferred on the court by paragraph (f) of Section 101 should ... only be sparingly exercised and then only in circumstances where it is clear beyond any reasonable doubt that a reference to the board is not a practical proposition.

This may be due to the fact that the circumstances of the case are such that no expectation can be entertained that the Board will be able to achieve any useful results and that any reference to it will be so much waste of time and effort. It is impossible to predicate all the circumstances which will make a reference to the Board impracticable. Were it not so, the legislature would have given an exhaustive list of exceptions.

With respect, I agree. I only desire to observe that the learned judge seems to have put the standard too high by proposing that the court, before exercising its discretion, should be satisfied beyond any reasonable doubt that a reference to the Board is not a practical proposition. I see no justification, and certainly it cannot be found in s. 101, for the departure from a balance of probabilities. Now, as I have demonstrated, further G reference to the Board in this case would be futile, a waste of time and effort. It is in that sense impracticable. I therefore hold that the petition was competent. We can now proceed to consider the charges.

The petitioner alleged adultery. This centers on the respondent's acquisition of and cohabitation with the second woman. There was indeed adultery, the parties' being a Christian marriage which is presumed to be monogamous. The respondent did not deny this fact: he only pleaded condonation. I have no hesitation in finding that there was condonation. The petitioner might have initially felt slighted, humiliated and offended when the respondent took on the second woman. But in the end she became reconciled I to it, and tolerated it, taking no step to register her protest. And for four years, from 1977 to 1981, she voluntarily submitted to the respondent's embraces thereby registering her forgiveness. She cannot now be heard to complain. I can perhaps sense the cultural dilemma which might have beset the petitioner. In the African society, polygamy is neither a secret nor an outrage.

Neither statute nor foreign propaganda has succeeded in engendering a change of attitude. There are therefore countless "wives" who are in effect concubines.

Nevertheless, no woman to a monogamous marriage, even in a polygamous society, should feel constrained to tolerate an adulterous association if it does not commend itself to her conscience. The petitioner is a woman with some education; she evidently knows her C rights. She had a home and she had the means to subsist on her own. That was the more reason for her not to assume a defeatist attitude. I think, therefore, that it was borne of her considered decision to tolerate her husband's adultery. That was condonation. Indeed I was shown pictures in which the petitioner had herself and her children happily photographed with the second woman's children. She also permitted herself to live with the second woman under the same roof. The presumption, so strong to rebut, is that she had accepted the second woman as a member of the family. However, it is one thing to tolerate a spouse's misconduct, it is another to put up with the E consequences thereof. It must have been in contemplation of this that the legislature enacted in s. 85 of the Marriage Act that evidence of misconduct by a husband or a wife shall not be inadmissible in any matrimonial proceeding on the ground that the misconduct was condoned by the aggrieved spouse. I will therefore have occasion to refer again to the adultery at a later stage in the judgment.

Both parties alleged cruelty. Cruelty is conduct having the effect of producing actual or apprehended injury to physical or mental health: Russell v Russell [1897] A.C. 395 (HL). The petitioner in the instant case alleged both physical and mental cruelty.

The respondent alleged the latter. At this juncture I will consider the petitioner's allegation. It was seriously impressed upon me that the respondent was in the habit of assaulting the petitioner and the petitioner's children, and even of threatening the life of the former. She reported her plight to a number of persons. Unfortunately, she did not call one to corroborate the claim. The respondent, quite naturally, denied the allegation. After anxious consideration, I do not think he was serious. Having seen and heard the petitioner, I have no doubt that she was a witness of truth. I believe and find that from time to time the respondent beat up the petitioner, breaking her nose on one occasion, and that he even threatened her life. The respondent showed me a 1981 photograph of I the petitioner and claimed that she looked healthy. I do not know whether the photograph purports to reflect that view for I do not know whether the petitioner looked worse - and how? - A when unhealthy. In any case, to find cruelty, the court will not wait to see injuries on the petitioner's person nor will it wait to see the petitioner in hospital. In the words of Lord Pearce in Gollins v Gollins [1963] 2 All E.R. 966, at p. 992.

It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances, would consider that the conduct complained of is such that this spouse should not be called on to tolerate

I adopt that view. It is also said in Bromley's Family Law(3rd Edn.), at p. 95, and I again agree, that 

... there is no need for the injury to be actually suffered: a reasonable apprehension that injury will result if the conduct is persisted in will suffice, for the court will not wait for the petitioner to be actually injured before affording him relief.

I have already said that the petitioner impressed me as a witness of truth. In fact no reason was suggested for her to concoct a lie. I believe that she was a victim of cruelty. Further, no reason was suggested why, after 23 years of married life, this woman should suddenly abandon the comfort of her bed and spend the night elsewhere - in the "hedge" as alleged by her. No reason was suggested why three children, one of them then aged seventeen, should flee the security of their father's house to spend two days at the place or places unknown. I believe the petitioner that on the night of 24 July, 1982 G the respondent enquired for bullets in a manner and circumstances that gave rise to reasonable apprehension of injury.

I would go further on this issue. Since August, 1981, the petitioner, a teacher by profession, has remained unemployed. I was made to understand that a married woman cannot be posted at a place other than her husband's station. There is in fact a letter (Exh. P2) from the Regional Development Director telling the petitioner that "Uhamisho wa aina yoyote unaohusu mke wa mtu ni budi kibali cha mumewe mhusika kipatikane kwanza". The petitioner stated, and I believe her, that twice she wrote to the respondent to consent to her transfer but there was no reply. As a result, the petitioner was reduced I to a "Yallah maskini", as she put it. As pointed out before, the respondent was happy at the petitioner's departure and had made no effort to induce her back. This attitude, then, can hardly be described as apt or sympathetic. To reduce a spouse to a virtual beggar is certainly an act of cruelty.

Finally, the petitioner alleged desertion. Her case was that her departure was necessitated by the respondent's misconduct. She was therefore charging him with what is called constructive desertion. The respondent, on the other hand, accused the petitioner of being the deserter. It is settled that where one spouse behaves in such a manner that the other is virtually compelled to leave, the former may in law be the deserter. It is imperative for there to be conduct which amounts to dismissal from the consortium. It was therefore said by Lord Greene, M.R. In Buchler v Buchler [1947] 1All E.R. 319, at p. 320, that:

Incompatibility of temperament and unhappiness in the matrimonial relationship which is not caused by cruelty are not themselves grounds for divorce, nor by themselves do they entitle the spouse affected to leave the matrimonial home and then to claim that the other spouse, even if he or she is alone to blame for the ill-success of the marriage, has been guilty of the grave matrimonial offence of desertion.

Again at p. 325:

... constructive desertion requires both factum and animus, and an indication by the husband F to the wife that she may leave him if she likes (animus) is not enough unless the conduct is such as to amount to an expulsion (factum) ... Mere wish to expel, even if it exists, without acts equivalent to expulsion is, in my opinion, insufficient to constitute constructive desertion.

In the above case the House of Lords denied the wife a decree of divorce on the ground of constructive desertion although the husband's conduct had no doubt caused the wife intense unhappiness and was such that no decent man would have been guilty of it. The H husband had cultivated "a very close and remarkable association" with a man in his service to the extent of losing interest in the wife's company and conversation. It was held that that conduct did not justify the wife in treating it as dismissal from the consortium and in leaving the matrimonial home. The wife was held the deserter and the husband was granted the decree.

I think that our case stands on different ground. The petitioner's departure from the matrimonial home was not prompted merely by incompatibility of temperament and unhappiness in the marital relationship. I have already found, and I need not repeat the facts, that she was the victim of persistent physical and mental cruelty. The conduct of the respondent, in my view, amounted to dismissal of the petitioner from the consortium. On the other hand, his persistent invitation to the petitioner to leave, his apparent pleasure at her departure, and his failure to induce her to return, are evidence of an intention to bring cohabitation to an end.

There was therefore the factum as well as the animus. I am satisfied that the respondent was in constructive desertion and I reject his counter-charge. I am aware, though, that under our law desertion is not a ground for divorce unless it has persisted for at least three years prior to the presentation of the petition. In this case only one year had elapsed. Nevertheless, I believe that it was not irrelevant to make finding on this issue. Since the enactment of the Marriage Act our law has radically departed from the English Law which insists on proof of a matrimonial offence before divorce can be granted. English D decisions have therefore to be read with analytical care. In this country, proof of what is called a matrimonial offence (adultery, cruelty, desertion, etc.) would not by itself entitle a spouse to a decree of divorce, a fortiori failure to prove such offence would not by itself disentitle a spouse to the decree. What is relevant is whether the marriage has E broken down and inconsidering this aspect the court is enjoined to have regard, not merely to specific offences, if any but to all relevant evidence regarding the conduct and circumstances of the parties. While, therefore, desertion which has not persisted for three years may not be a ground for divorce, that only operates to exclude it as an actionable ground per se; it does not operate as a bar to considering the circumstances of the parties as a result of it. I will therefore be entitled to reflect on these circumstances, if it shall be necessary to do so.

There are then the issues presented in the cross-petition. They were two: desertion and cruelty. I have just disposed of desertion in favour of the petitioner. As regards cruelty, the respondent's charges were two-fold: that the petitioner spoiled the children and rendered them unamendable to his authority and that the petitioner was in the habit of consulting witchdoctors. He alleged that these phenomena occasioned him great physical and mental strain as well as a reasonable apprehension of injury. I can dispose of the first allegation briefly. It revolves on the pregnancies of the second and fourth children; it also revolves on the third child's criminal propensities. I agree that that was a sad development and I am naturally sympathetic. However, the duty to bring up children in a decent manner is the duty of both parents. It must be in a rare and special I circumstances that this obligation may fall on the shoulder of one parent. No evidence of such rare and special circumstances was brought to my attention. There was on the other hand, no evidence of particular dereliction on the petitioner's part which could be said to have contributed to the children's delinquency. I was told that the petitioner used to withhold from the respondent's knowledge acts of B hooliganism by the children. I was also told that the respondent's attempts to discipline them would meet with frustration as the petitioner would stand up in defence of the children. I think, with respect, that these complaints are in fact evidence that the respondent knew of his children's ways.

They also testify to the motherly instinct which is natural to women the world over. It is perhaps fitting to add that this instinct is an C essential one to temper the rough edges of men. And in litigation, as in science, these revelations cannot be the basis of a judgment. The development of a person's character is by no means a simple phenomenon. Many factors, both within and without our perception, go to mould a particular personality. Psychologists tell us that accumulated D home experiences, inherited potential and environmental experience, all combine to make a person what he is. It is therefore unsafe and unscientific, on the evidence such as I have, to attempt any judgment. I decline to find that the petitioner bears responsibility for the children's delinquency. It remains to consider the issue of witchcraft. 

It was testified by the respondent that ever since they were at Musoma the petitioner used to consult witches. She continued to do so even at Singida, his protests notwithstanding. He then said that when the petitioner departed in July, 1981 he went into her room and found objects tied in the petitioner's handkerchief which he believed to be instruments of witchcraft. He tendered these as Exh. D.11. It is an astonishing collection. I will endeavour to describe these objects. They consist of: (a) five cowry shells, some wrapped in medical plaster and one in pieces of paper that bear messages in the Arabic script; (b) two powdery preparations, one brown and the other grey, from unknown matter; (c) a piece of integument which by its scaly nature could be that of a snake or similar creature; and (d), more repugnant than all, is a thing, dried up and dark, which defies all description and to which is tied a root or twig. I have no doubt that these are instruments of witchcraft - what else can they be? The petitioner denied seeking assistance in witchcraft, and denied any knowledge of Exh. D11. She suggested H that these articles were acquired by the respondent and his second woman in order to slander her.

I have given long and anxious consideration to the petitioner's denial as well as her suggestion but, on a balance of probabilities, I am inclined to accept the respondent's I charge. And these are my reasons: First, I was not impressed with the petitioner's demeanour when the ownership of Exh. D11 was put to her. She suddenly changed, and looked troubled, her voice sinking low. Secondly, she conceded that the respondent had protested to her about witchcraft ever since 1978. Thirdly, on one occasion the respondent found their fifth child with an amulet around his waist. He believed it was the petitioner's work and told her so. I, too, cannot imagine a stranger being so "generous" to the child. I think the B respondent's belief was justified. Fourthly, there is nothing to suggest that the discovery of these things had any connection with this litigation. The respondent informed the court that on discovering the articles he went to report to his father and the petitioner's father, but did not find the latter. I discovered from Exh. P3, the petitioner's 13 page C memorandum to the President's Office, that this was on 13 August, 1981, eighteen days after her departure. The petition, as earlier stated, was filed on 19 August, 1982. Finally, I see no reason in the world for the respondent to expend energy, and perhaps money, to acquire these abominable things. I am unable to accept the suggestion of slander. I think the respondent had no cause to slander the petitioner after she had D departed and given him the happiness he longed for.

He also could not risk slandering her when they have seven children, some of whom he apparently loves. I am for these reasons persuaded to the view, and find, that the instruments of witchcraft belonged to the petitioner.

The respondent said, and I quote, "Discovering these `medicines', I was greatly disturbed and thrown into a state of worry. I am still worried and apprehensive. Seeing these things, I cannot again take her for my wife. She might kill me. I can't risk again". Of course there was no evidence that the "medicines" were intended for the respondent. They might have been the petitioner's own "medicines" for that matter. There was also what one might call acquiescence. The respondent, aware of the petitioner's addiction to witchcraft since their Musoma days, seems to have done no more than remonstrate. Prima facie, therefore, one might be inclined to doubt whether the respondent felt the  cruelty. I am not so inclined. I think the foregoing is only one side of the coin. It might well be that the petitioner's witchcraft activities were not intended for the respondent. Yet, in a society riddled with superstition, and ours lays no claim to exception, neither witches nor their clients would make comfortable bedfellows. In considering this, one cannot deny that the petitioner's mind on the question of acquiescence, it would be dangerous to generalize. If a spouse continues to cohabit with the other although the latter has been guilty of cruelty, it is a question of fact whether to infer forgiveness. Each case would depend on its peculiar nature, not least the nature of the cruelty. I believe that witchcraft, such a cause of strife and misery among a greater part of our population, is not something one can elect to ignore. One can only hope and pray that it has ceased. The sudden discovery that it has not, in particular, the sudden discovery of grotesque objects like Exh. D11 herein, would in a superstitious mind give rise to an intensified and reasonable apprehension of injury. On this score I accept the respondent's charge of cruelty. 

We are now in a position to conclude this part of the proceeding. On the petitioner's side I have found established cruelty, adultery and desertion, the latter two not being actionable per se. On the respondent's side, I have found cruelty established. Regarding the implications of the respondent's cruelty, I would respectfully adopt the words of Katiti, Ag. J. (as he then was) in Marwa v Akeyo [1977] LRT n. 39 where he said:

I would without demur say that in the face of these circumstances (i.e. a lot of beatings, assaults and chases from the matrimonial home) accompanied by (the wife's) loud fears of death ... it is difficulty to avoid a conclusion that (the marriage has irreparably foundered.

On the other hand, the adultery was condoned, it is true, but it remains inescapable that the marriage in the instant case foundered mainly due to the presence of the second woman. She remains with the respondent todate. She was the principal, though not the initial, cause of the respondent's alienation from the petitioner and she was the principal cause of his truculent disposition towards the petitioner. As Lord Greene, M.R. again said in Buchler v Buchler (above), at p. 323, "For a woman to feel that her husband has lost interest in her company and conversation is a misfortune which calls for sympathy F and pity". I have more than sympathy and pity for the petitioner. More seriously, I think, the continued presence of the second woman renders resumption of cohabitation an impractical proposition. The same goes for the desertion. That too is on the facts of this case not actionable. But the conduct and circumstances of the parties subsequent G thereto are relevant factors. When I saw the parties I was left in no doubt about their determination to remain estranged. The fears of, mistrust and even loathing for each other have progressively grown intense. In all consideration, I find that this marriage has suffered a mortal blow. It is evident, however, that the petitioner's case is the weightier of the two.

I will therefore allow the petition, after rejecting the cross-petition, and grant a decree of divorce to the wife. The marriage is accordingly dissolved.

The petitioner also prayed for custody of the youngest five children; the respondent prayed for custody of the last three. Custody may only be ordered in respect of a child I who has not attained the age of 18 years. In this case, the third child was born in 1962 and the fourth in 1964. These have already attained 18 years and do not come in for consideration. The fifth, A sixth and seventh were born in 1967, 1968 and 1970 respectively. They are therefore still "infants" within the meaning of the law. However, they are not the sort of infants whose views one can safely ignore. The fifth child completed Standard VII last year, the sixth is in Standard VII this year and the seventh in Standard VI. In matters of custody B the welfare of the infant is of paramount consideration, but where the infant is of an age to express an independent opinion, the court is obliged to have regard to his or her wishes. The last three children have already attained an age and a level of education at which they can express independent opinions. There is another matter which is equally relevant. It is the circumstances in which the three children joined the petitioner and the circumstances in which they continue to stay with her. The respondent alleged that the petitioner enticed them away. The petitioner denied this and claimed that they fled from respondent's terror. It was indeed admitted by the petitioner that she used to meet the children after her departure. The possibility of her putting in a word cannot be entirely ruled out.

It is significant, however, that late last year the fifth child went to Singida to enquire for his examination results and, after paying a courtesy call on the respondent, he returned to the petitioner at Itigi. He remains with the petitioner. This incident suggests strongly that the children are not being unduly influenced to be where they are. There is an element of choice. For these reasons I consider their views very relevant. Unfortunately, I was not privileged to see and hear these children. I therefore do not know what their wishes are. It would therefore be improper on my part to order custody one way or the other and I desist from doing so.

Finally, there was the issue of matrimonial assets. The petitioner claimed that they acquired with the respondent two radio cassettes, one radiogram, one refrigerator, built a house at Chamwino and cultivated a maize shamba. Although she did not say so, I believe that she desired the Court to divide up these or their value proportionately. Turning to her contribution the petitioner claimed that from 1961 to July, 1978 she used to remit the whole of her salary to the respondent. She also claimed to have put some work in the house and the shamba. According to the respondent, however, there is only one radio cassette and a music system. The radio gram and the fridge were damaged long ago. For nearly all these he produced documents evidencing their acquisition - H some on hire purchase agreements. For the Chamwino house he obtained a loan from the Tanzania Housing Bank. I was shown the agreement and the statement of account therefor. The loan is being repaid by deductions from his salary. Regarding the maize shamba the respondent stated, and the petitioner agreed, that a tractor and labourers I were hired at all stages for which he paid the expenses. He denied participation by the petitioner and said she only visited the shamba to break maize cobs for her consumption. I will also observe that no evidence was adduced as to the number of times the shamba was cultivated, the quantity of maize realised or the amount of money it fetched. The petitioner merely said that the respondent knew. The respondent also denied receiving the petitioner's salary at any time. From 1962 to 1963 he was at the Dar es Salaam Technical College taking course. The petitioner conceded that she remitted to him no salary then. Between 1964 and 1978 the parties found themselves at Dar esSalaam, Mbeya, Tukuyu, Chunya, Mwanza, Musoma and Singida. The petitioner admitted that in the course of those years and transfers she opened her own bank accounts not less than four times. She claimed that she was banking moneys realised from handcrafts but that does not commend itself to my acceptance. On a balance of probabilities, I find the allegation of work and salary D remittance not established.

In the end I find no evidence of joint acquisition of the assets aforementioned. There is a school of thought, and I think a judgment of this court, which advances the idea that in considering the issue of joint acquisition or ownership of property, regard should be had to the fact that the wife is the housekeeper and that this releases the husband to engage in production. The proposition might be attractive but I cannot and do not believe that that is the law. In accordance with s. 114(2)(b) of the Marriage Act, the Court is required in exercising its power of division of assets to have regard "to the extent of the contributions made by each party in money, property or work towards the F acquiring of the assets", I would require considerable persuasion to come to the view that "work" refers to or includes the fulfilment of what are purely conjugal obligations. Housekeeping is a conjugal obligation. I think, with respect, that "work" refers to physical participation in the production of the asset itself. As stated already, I was not satisfied that the petitioner contributed an work worth mentioning. It may be possible, however, for spouses to enter into an agreement for the joint ownership of property otherwise separately acquired. Section 58 of the Marriage Act is relevant in this regard. But in the absence of such an agreement the fact of the marriage would not operate to H change the ownership of any property to which either the husband or the wife may be entitled. The petitioner did not seek to rely on any agreement or even a custom of some sort. There otherwise appears to be no basis in the statute for the housekeeping idea.

The rule is a verbis legis non est recedendum, i.e. thou shall not vary the words of a statute. I am unable to find, on the state of the law today, that the petitioner is entitled to sharein the assets named by her. I accordingly

A reject her prayer.

The petitioner expressly declined any costs and, in the circumstances of this case, Iwould not have granted any.

Order accordingly.

1983 TLR p309

C