Dinya v. Dawa (PC) Civ. App. 166-D-69; 14/1/71; Makama J

 Dinya v. Dawa  (PC) Civ. App. 166-D-69; 14/1/71;  Makama  J

            This is an appeal against an order for the maintenance of a wife. There was evidence that the appellant did not drive away the respondent/wife from the matrimonial home. The respondent ran away on her own after a quarrel. When she was away the respondent provided some foodstuffs and money. The primary court had ordered the appellant to pay Shs.500/= for maintenance of the respondent.

                        Held: (1) “I agree with the assessors in the Primary Court       that the respondent was nashiza.  Under Islamic law a husband is not obliged to cohabit with such a wife or provide for her. This does not mean that he must not do so. A wife ceases to be nashiza only after she stops being disobedient. There was evidence, which the trial magistrate believed that during the discussion with relatives and religious leaders the respondent agreed to go back to the appellant. In my opinion she ceased to be nashiza then. The appellant was indecisive during that discussion. He said the wife should continue to live where she was, and then he changed his mind and said he would give her talak later on the same day, which he did not. From that point it was thus his duty to maintain her, and the evidence indicates that he gave the maize etc. to the respondent before this discussion, and nothing after that.”  (2) “With respect to the trial magistrate, however, it was for the respondent, not the appellant, to establish when during the three years she ceased to be nashiza and up to what date she was maintained, for it was she who was claiming maintenance. Neither the parties nor the witnesses gave any such dates, and the only useful guidance given by the appellant and not challenged by the respondent was that on the 1^st of March 1969, only a month before the respondent went to court, they were eating the staying together. I am not therefore satisfied about the basis on which the figure of Shs.500/=  was reached, and because of the foregoing reasons this appeal succeeds.”