Bakari v. Bakari Civ. App. 5-T-70; 15/5/71; Bramble J.

Bakari v. Bakari Civ. App. 5-T-70; 15/5/71; Bramble J.

In proceedings for divorce, the appellant/mother was given custody of the last two children of the marriage while the respondent/ father got the first two. The appellant claimed that she was entitled to custody of all the children. She was employed as a nurse and lived at her mother’s home which willing to look after the children while appellant and her mother were at work. The two children in the respondent’s custody were living with respondent’s father in a badly ventilated house in which the respondent’s father’s concubine also lived. The respondent was at the particular time undergoing a course in Dar es Salaam and was anxious to live with his children after the course. The trial magistrate had awarded custody on the basis that under customary law the welfare of the children was the paramount consideration.

            Held: (1) “It was proved that the marriage was a Christian marriage and not a marriage under customary law and so customary law did not apply. The consideration of customary law which seemed to have greatly influenced the court was a clear misdirection. Of course the decisions on matters of the kind even under customary law must follow the principle that the welfare of the child is of paramount importance. The judgment challenged did not show how the principle was applied.” (2) “It is preferable in divorce proceedings to adjourn the question of custody to chambers leaving one party or the other to take out a summons when all the pertinent evidence can be led on the point. There is less chance of the hotly contested divorce proceedings taking precedence over the issue of custody.” (3) “While on a purely technical examination of the available evidence it is possible for an appellate court to come to a decision one way or the other I do not think that this will serve the best interest of the children in question. As I understand it the normal practice is to grant a formal order for the custody of the children to a petitioner, husband or wife, until further order, in cases where here is a plea of custody. This appears to a be a fitting order in the circumstances of this case.” (4) “Custody of the two children granted to appellant until further order. Either party may made chamber application for custody when the question will be fully litigated.” (5) Appeal allowed.