Gaspar v. Bantega Civ. Rev. 1-M-71; 24/3/71; El-Kindy Ag. J.

Gaspar v. Bantega Civ. Rev. 1-M-71; 24/3/71; El-Kindy Ag. J.

            This was a petition for divorce on the ground that the husband had deserted and refused to maintain the wife and the children of the marriage. The respondent/ husband were served with notice to appear but he did not. He wrote to the court stating that he could not attend as he was short of money and said that it would be of great help if the petitioner appeared and said she could not help. The trial magistrate granted a decree nisi stating that it was unreasonable for the respondent to require the petitioner

            Whom he has deserted to provide him with the money and that this should be taken as refusal to attend.

Held: (1) “Apart from the fact that the respondent clearly indicated that he intended to appear, there is no justification for holding that the respondent was refusing to attend. Even assuming that the learned magistrate was correct in drawing this inference, the proper procedure set out in Matrimonial Causes Rules, 1956 was not followed. Section 25 of these Rules clearly shows that evidence has to be heard viva voce. In this case, there was no evidence led viva voce by the petitioner to prove the allegation of desertion. It would appear that the court is not entitled to act on the petition itself as if it were evidence. Hence a decree dissolving a marriage cannot be made where no evidence was examined in court.” [Citing THOMAS v. THOMAS [1967] H. C. D. 47 and HARUNU S/O MTEGO v. YULIA D/O LUMAMBO Mat. Conf. cause 4/1969 unreported.] (2) Proceedings set aside.