Masuka v. Sigonjwe (PC) Civ. App. 97-D-70; 16/3/71; Hamlyn J.

 

Masuka v. Sigonjwe (PC) Civ. App. 97-D-70; 16/3/71; Hamlyn J.

This case was filed by the adulterer against the husband as a claim for custody of a child born of the wife, of which the adulterer claimed he was the father. The wife admitted adultery with the claimant and said that he was the true father of the child. The claim failed both in the Primary and the District Courts because according to Gogo customary Law, every child born during the subsistence of the marriage is a child of such marriage. On appeal to the High Court;

            Held: (1) “It would of course be quite improper to allow the claim of the woman in circumstances such as these, or even to accept such evidence as having any bearing on the matter, Furthermore, there is no proof of non-access over a considerable period of time and, had there been such, the fat of paternity would have had to have been proved aliunde and not by the mere asseveration of the mother. It is clear that the local customary law contains not only basic robust common-sense but that it also accords with more sophisticated codes in this matter.” (2) “The Ruling of the two Courts below is clearly correct and to hold otherwise would cut at the root of much of the marriage bond.” (3) “The child is declared to be the son of the husband of the woman and is consequently placed permanently in his custody as the true father.” (4) Appeal dismissed.