Marwa v. Wambura (PC) Civ. App. 115-M-70; 19/3/71; El-Kindy Ag. J.

 

Marwa v. Wambura (PC) Civ. App. 115-M-70; 19/3/71; El-Kindy Ag. J.

The appellant was married to the daughter of the respondent paying 36 heads of cattle plus Shs. 100/- cash as bridewealth. The appellant applied for divorce alleging that he respondent’s daughter consistently refused him sexual intercourse and was disobedient to lawful orders. Divorce was granted. The issue was now whether the full bridewealth should be refunded by the respondent being the father of the divorced wife. The Primary Court had ordered refund in full but the District Court reversed.

            Held: (1) “It is provided for in section 58 of the Law of Persons G. N. No. 279/63 that if the wife repeatedly behaved in a manner which makes life unbearable for her husband, with the purpose of provoking him to divorce her, the court may decided that all or part of the bride wealth has to be repaid even though children have been born. The act of refusing sexual intercourse and disobedience to lawful orders were, in my view, provocative acts intended to cause the appellant to divorce the respondent’s wife and on this ground alone the trial court would be fully justified in coming to the conclusion it did.” (2) (Citing MATIKO CHACHA V. MATHIAS MWITA [1969] H. C. D. 196). “It should be made abundantly clear to unscrupulous fathers that daughters are not for sale nor are they the source of wealth. Bride-wealth is intended to secure the marriage between the parties, and is not a price for marrying he girl. If the respondent, in this suit, was making business of his daughter, as the gentlement assessors thought, then they were justified in holding that there should be a full repayment of the bridewealth.” (3) “Section 7 of the Law of Persons G. N. No. 279/63 states that the person entitled to receive the bride-wealth is the father of the bride or his lawful heir irrespective of he latter’s sex unless the heir is the daughter in respect of whom the bride wealth is paid.

And section 37A & B of the same statute, provides that the father-in-law or his lawful heir is the one who may be required to return bridewealth in case of divorce or any person who received it. In this case the respondent was the person who received the bridewealth, and in law he is the one who is to repay it.” (4) Appeal allowed – Bridewealth to be paid by respondent in full.