Kilango v. Kilango (PC) Civ. App. 36-A-71; 25/3/71; Kwikima Ag. J.

 

Kilango v. Kilango (PC) Civ. App. 36-A-71; 25/3/71; Kwikima Ag. J.

The appellant/wife sued for divorce on the grounds that the respondent/husband was not maintaining her. The Primary Court ordered the marriage to be dissolved. On appeal, the District Court ordered the appellant to pay two cows and Shs. 10/- in view of the fact what she was the one seeking divorce. On further appeal.

Held: (1) “The learned District Magistrate was clearly imposing “Khului” on the appellant who had merely come to as for “fashki”, that is, dissolution of marriage by court. “Khului” is only payable when the wife seeks to move her husband to pronounce the Talak on her. But where the wife seeks to move the court (Kadhi) to dissolve the marriage on some matrimonial offence such as neglecting to maintain the wife, then the principles of “talak khula” do not apply. Instead the court should find out whether the matrimonial offence is proved and should there be proof, then the court should, on its own motion, pronounce the marriage dissolved. This is all in accordance with the Sunni Shafii School of law to which all indigenous Tanzanians of the Muslim faith subscribe.” (2) Order of “Khului” set aside. (3) The appellant proved on a balance of probabilities that the respondent was not maintaining her. The Primary Court order dissolving the marriage is therefore confirmed. (4) The respondent shall be bound to maintain the appellant during her period of Eda provided she observes the rules of Eda. (5) Appeal allowed.