John Nyelu v. Maganga Nalimi. (PC) Civ. App. 260-M-69; 3/12/69; Brimble J.
The appellant claimed for a child in the primary court and was successful. The District Court reversed the decision and the present appeal is against that judgment. The appellant was married to the respondent’s sister. After a year she left and returned to her father where she later had the child in question. She said that the appellant was not the father. Part of the dowry was retuned. The respondent is the head of his clan and the child was put under his custody, and care by the Elders. The only point in issue was whether the appellant was the father. The trial magistrate held that – “This case, as it stands, envisages the claim for the child who has been born/conceived during the wedlock and it does not involve paternity in respect of an unmarried lady.”
Held: (1) “The evidence before the court was that when the mother left her husband she was pregnant and, apart from the there was no evidence to the contrary. In addition there was no evidence that the parties were divorced. A separation and a refund of part of the bridewealth may point to an intention of divorce but cannot be considered as a divorce. There are specific rules laid down for obtaining a divorce and no attempt was made to comply with them. The record fully supports the
finding quoted above.” (2) “In commenting on the judgment of the primary court the District Court said – The lower court also purported to act under section 175 of G. N. 279/63 which states: Children born by married people are father’s property. In order to properly apply this section in the instant case the respondent must prove to a high degree that the woman Maria conceived while married to him failure of which section 178 will apply which states; Children born out of wed-lock belongs to the woman’s side that is to say belongs to their mother’s father. Since there was no divorce the parties were still legally married and there would be a very heavy burden on the woman to prove that a child was not her husband’s. This was not a case of a child born out of wed-lock.” (3) Appeal allowed.
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