Kalelsela v. Mwamalili (PC) Civ. App. 54-D-70; 5/11/70; Biron J.

 

Kalelsela   v.  Mwamalili (PC) Civ. App. 54-D-70; 5/11/70; Biron J.

The appellant filed a petition for divorce against the respondent her husband alleging desertion and refusal to maintain her and the children of the marriage.  There were three children from the union of nine years but the respondent disputed the paternity of the last child.  The Primary Court granted divorce and the respondent after     successfully claiming a return of part of the bride price, appealed against the order granting divorce on the ground that he had not been summoned or informed of the divorce proceedings. He also asserted that he wanted his wife back.  The District Court after considering the sanctity of marriage, held that the lower court had no jurisdiction to grant a divorce and that the respondent had not been served. The divorce order was reversed and the husband declared man and wife.

                  Held:  (1) “I fully agree with the Mbeya District Court as to the sanctity of marriage and that such union should not likely to be           broken. Even so, a court cannot and should not blind itself to the realities of the position.  Whether or not, as alleged by the husband,         Emmanuel, his father-in-law is responsible for the break-up of the marriage, it is abundantly clear from the proceedings as a whole that the marriage has broken down. In fact, as noted, the husband disputes the paternity of the last child born to them. Such attitude,          apart from any other consideration, hardly bodes well for a happy resumption of married life.”  (2)  “Whatever the merits or demerits of the Ilomba Primary Court’s decision granting the divorce, the fact remains that the husband Emmanuel did not appeal from it, but instead he filed a suit in the Kyela Urban Primary Court claiming the refund of six head of cattle.  He is therefore, to my mind, stopped from disputing the validity of the divorce granted by the Ilomba      Primary Court, which, he himself has accepted, in that he filed a       suit for the refund of the bride-price.  In the circumstances, the Mbeya District Court had no justification or right to set aside the divorce granted by the Ilomba Primary Court.”  (3) Appeal Allowed.