Mwanamvua v. Shabani (PC) Civ. App. 14-A-71; 9/2/71; Kwikima Ag. J.

 

Mwanamvua v. Shabani (PC) Civ. App. 14-A-71; 9/2/71; Kwikima Ag. J.

The appellant/wife sued the respondent/husband for a declaration that their marriage had been dissolved by the respondent’s act of returning her to her parents and demanding the dowry back. There were allegations by the respondent that appellant was denying him sexual intercourse giving excuses such as illness or being in the menses whenever she was requested. The dispute reached the appellant’s father who offered to keep his daughter and refund the dowry. The learned Sheikh who tried the case found that he respondent’s ac of accepting back the “mahari” (dowry) constituted “Talaka ya Kinaya” (implied or constructive divorce). The District Court confirmed but ordered the appellant to pay Shs. 400/- to the respondent as “khului”. She appealed from that order.

            Held: (1) “There is no question that the law governing this appeal is that of Islam, but owing to the presence of several Islamic Sects, it has been held by this Court that it is necessary to specify which school of Islamic Law should govern the case (See Adamu Mtondo v. Likuna Omari 1968 H. C. D. 289). The notorious fact that most Tanzanian indigenous Muslims are Sunnis of the Shafii sect is judicially noticeable. The other Muslim sects are those to which Asiatic, Arab or other non-indigenous Muslim Tanzanian belongs. Over these people, our Primary Courts have no jurisdiction. It therefore follows, by analogy, that only cases governed by the Sunni Shaffi School of law are triable by the Primary courts normally. Unless Muslim litigants prove to the contrary, the Primary Court shall apply the Sunni Shafii law, and according to that law, this appeal is determinable.” (2) “It is safe to conclude from (the evidence) that the appellant did unreasonably refuse her husband sexual intercourse. According to Islamic Law, she became “Nashiza” on so doing, thereby forfeiting all her rights for maintenance (El Buhriy “Nikahi” s. 50 p. 9)”. (3) “With due respect to the learned Sheikh I am unable to see how he could have reached such conclusion in view of the fact that it was solely

due to the appellant’s persistent frustration of the respondent that the latter agreed to part with her on condition that she should refund the “mahari” paid to her. If there was any divorce, it must have been “at the initiative of the wife” as Section J, put it in the case of El Haji Salum Mbogoromwa v. Asumini Ngobesi 1968 HCD 383. Had the refund been made, the divorce would have been a “khula” divorce and the refund, the “khului.” As things went, the Court declaration was illegal as the respondent had recalled his wife before the khului was paid to him. The Khula divorce would have been complete upon the respondent’s legal wife until the respondent agreed before the district Magistrate to divorce the appellant on payment of Shs. 400/- “khului.” The “khula” divorce was pronounced by the District Court, in other words.” (4) “The only question remaining in this appeal is whether the Court could fix the amount of “khului” payable by the wife seeking divorce. The amount itself is negotiable by the parties inter se. should the parties fail to agree, it is only fair that the Courts are able to intervene and fix a sum arrived at by the Courts are able to intervene and fix a sum arrived at by the Court itself.” (5) “In this case Shs. 400/- fixed by the Court cannot be o unreasonable as to warrant interference.”  (6) Appeal dismissed.