ABDALLA HAMID MOHAMED v JASNENA ZALUDOVA 1983 TLR 314 (HC)

ABDALLA HAMID MOHAMED v JASNENA ZALUDOVA 1983 TLR 314 (HC)

Court High Court of Tanzania - Zanzibar

Judge Msumi J

September 8, 1982

MATRIMONIAL CAUSE 12 OF 1982

Flynote

Family Law - Domicile of parties to marriage - Private International Law - Section

15(c) of G Civil Procedure Decree, Cap. 8 - Parties subject to jurisdiction of the court

of the country of their domicile.

Family Law - Conversion to Islam - Second marriage ceremony under Islamic Law -

Whether parties subject to Islamic law in matrimonial proceedings. H

-Headnote

The petitioner is a citizen of Tanzania while the respondent is a citizen of

Czechoslovakia. They had contracted a civil marriage in Prague, Czechoslovakia in

1974. The parties subsequently came to live in Zanzibar and while there they

underwent I a second marriage ceremony which was preceded by the conversion of

the Czech woman to Islam. The petitioner then married a second woman under

Islamic Law. The

1983 TLR p315

MSUMI J

respondent ran away to Czechoslovakia and intimated that she would never resume

A cohabitation with the petitioner unless he divorced his second wife. The

petitioner contends that the respondent has been guilty of desertion since 1979.

Held: (i) Parties in a matrimonial suit are subject to the jurisdiction of the court of the

B country of their domicile; section 15(c) of the Civil Procedure Decree, Cap. 8 gives

jurisdiction in civil matters to a court in whose territory the cause of action arose;

(ii) in common law a second marriage ceremony after the parties have validly

married is of no legal importance; C

(iii) conversion to Islam followed by a second marriage ceremony in Islamic

law has the effect of formalising the religious and marital status of the parties. The

husband then is allowed to marry up to four wives provided that he can maintain

them sufficiently and impartially;

(iv) by leaving her husband and refusing to return after being asked to do so,

D according to Islamic law, the respondent is labelled as an insolent or disobedient

wife, which disobedience is good ground for divorce.

Case Information

Order accordingly.

Case referred to: E

1. Dedhor v Janmohamed [1946] 8 ZLR 52

2. Thynne v Thynne [1955] 3 All ER 129

3. Skinner v Skinner [1897] 25 IA 34

4. Rattansey v Rattansey [1960] E.A. 81 F

5. Khambatta v Khambatta (1935) 59 Bomb. 278

6. Ayoob v Ayoob [1968] E.A. 72

[zJDz]Judgment

Msumi, J.: The petitioner is a citizen of Tanzania while the respondent is a citizen of

G Czechoslovakia. On 19th September 1974 they contracted a civil marriage at

Prague, Czechoslovakia. Few months after the marriage they came to Tanzania and

lived in Dar es Salaam and shortly afterwards they shifted to Zanzibar. While in Dar

es Salaam the respondent changed her Christian religion and became a moslem. Her

conversion into H Islam was solemnised by a BAKWATA Sheikh one Abdallah

Chaurembo; and consequent to it the respondent assumed a new name of Salama.

Soon after the respondent's conversion into Islam, the parties went through a second

marriage ceremony in accordance with Islamic Law.

While the parties were still living together here, the petitioner decided to get married

to I another wife. On hearing this, respondent decided to

1983 TLR p316

MSUMI J

leave for her home country where she is still living. In some of her letters to the A

petitioner the respondent has informed him that she was not going to resume

cohabitation wit him unless he divorces his second wife and then join her in

Czechoslovakia. Hence in his petition, the petitioner contends that the respondent

has been guilty of desertion since 1979 and thus requests the court to grant him a

decree of divorce. B

On 24/4/82 this court made a short ruling upholding the petition. Detailed judgment

was reserved to a later date. Thus in this judgment I will endeavour to illuminate the

reasons for upholding this petition.

The suit proceeded ex parte after efforts to serve the respondent in Czechoslovakia

has C proved to be fruitless. In any case, there is ample evidence showing that in

fact the respondent was not interested in defending this suit. However, I am satisfied

that this suit was not filed in collusion. Despite the fact that the respondent made no

defence, still this court is bound to consider the petitioner's case in detail and decide

whether it is supportable by law and the available evidence. D

It is evident that the respondent is a citizen of Czechoslovakia and that the parties

first acquired their marital status through a civil marriage performed at

Prague,Czechoslovakia. It is also undisputable that at the time when this suit was

filed in this court the respondent had already left the country for about three years.

In these E circumstances, the immediate legal question is whether this court has

jurisdiction to entertain this suit. Put it in another form, the issue here is whether the

respondent falls within the jurisdiction of this court.

It is an internationally-recognised principle of law that a woman acquires the

domicile of F her husband on marriage. In this case, the petitioner is domiciled in

Zanzibar, it therefore follows that the respondent is also domiciled here. Generally,

parties in a matrimonial suit are subject to the jurisdiction of the court of the country

of their domicile. On this basis, therefore, it was proper for this suit to be filed here.

Furthermore, I am of the opinion that the fact that the matrimonial home of these

parties G is still in Zanzibar adds more weight to the propriety of this court assuming

jurisdiction over this suit.

Apart from the above mentioned general principles of Private International Law there

is a local statute which deals with the question of jurisdiction in civil suits which have

H foreign elements like the present one. Section 15(c) of the Civil Procedure Decree

Cap. 8 give jurisdiction in civil matters to court in whose territory the cause of action

arose. In the case of Dedhor v Janmohamed (1946) 8 ZLR 52 the parties were

husband and wife married in Zanzibar under Islamic Law. Soon after their marriage

they went to live I in Tanganyika which was the domicile of the husband. Later on

the wife left the husband in Tanganyika and came

1983 TLR p317

MSUMI J

to live in Zanzibar. She then filed a suit in this court for maintenance alleging that

due to A her husband's acts of cruelty, she was forced to leave the matrimonial

home. This court, while being presided over by my learned brother Chief Justice

Robinson held that since the cause of action viz the alleged acts of cruelty by the

husband, occurred in Tanganyika, according to S. 15(c) of Civil Procedure Decree this

court lacked B jurisdiction to entertain the suit. In the present case the petitioner's

prayer for divorce is based on the allegation that the respondent has deserted him.

The alleged desertion consists of the respondent's act of leaving the matrimonial

home in Zanzibar and her refusal to return. This means that the cause of action arose

in Zanzibar. By virtue of C section 15(c) of Civil Procedure Decree as rightly

interpreted in the case of Dedhor v Janmohamed this court has jurisdiction to

entertain the suit.

The legal effect of a contract of marriage is to bestow upon the parties the status of

husband and wife. It is noted that in this case after the parties had contracted a civil

D marriage they later on purported to contract another marriage in accordance with

Islamic ceremony and rites. From the petitioner's testimony it is evident that the aim

of that second ceremony was to convert their civil marriage into Islamic one. The

question then is whether this intention is legally sustainable.

In common law the general view is that a second marriage ceremony after the parties

E have validly married is of no legal importance. The main argument advanced in

favour of this view is that since the parties have already acquired the marital status,

which is the purpose of a marriage contract, any subsequent ceremony purporting to

do what has already been accomplished is legally redundant. In the case of Thynne v

Thynne F [1955] 3 All ER 129 the parties after secretly but validly being married

subsequently went through another marriage ceremony. After long cohabitation the

wife petitioned for divorce and in her petition she referred to the second marriage

ceremony. The court granted a decree of divorce on the understanding that it was

dissolving the marriage G celebrated on the day shown in the petition. However,

when the court discovered the true fact, it amended the divorce decree to indicate

that the dissolved marriage was the one contracted before the second ceremony.

But in the present case the parties here did more than just go through another

ceremony H of marriage. Before undergoing the second ceremony the wife

willingly changed her religion and became a moslem. A religious ceremony was

conducted by one Sheikh Abdallah Chaurembo and subsequently she assumed an

Islamic maiden name of Salama. It appears that the ceremonies of conversion and the

Islamic marriage rites were done simultaneously. These ceremonies were aimed at

formalising the religious and marital I status of the parties.

1983 TLR p318

MSUMI J

So far it would appear that at common law the question whether a change of religion

by A a spouse after marriage has any legal effect to their marriage is still an open

issue. Thus in the case of Skinner v Skinner (1897) 25 IA 34 Lord Watson said:

Whether a change of religion made honestly after marriage with the assent of

both spouses, B without any intent to commit a fraud upon the law, will have the

effect of altering rights incidental to the marriage such as that of divorce, is a question

of importance and may be nicety.

However, in East Africa some decisive pronouncements had been made by the courts

C on this question. In the case of Rattansey v Rattansey [1960] E.A. 81, the

petitioner a member of Khoja Ithna-asheri community married the respondent who

was a Christian D by a civil ceremony under the Marriage Ordinance. The

respondent soon became a convert to Islam and was admitted to the Ithn-asheri

community. On the same day the petitioner and the respondent went through a

ceremony of marriage according to Muslim law. Subsequently the petitioner having

divorced the respondent by renouncement of E talak according to Islamic law

applied to the court for a declaration that the divorce pronounced by talak be

recognised by the law. One of the grounds of objection raised against the petition was

that when the parties went through the purported marriage under Islamic law, they

were already husband and wife; and so the second ceremony did not confer on them

any additional marital status. Since their marital status was that acquired F through

civil marriage, the same could not be dissolved by Islamic law procedure in a form of

issuing a talak. This argument was dismissed and the court was of the view that the

respondent's conversion to Islam had the effect of subjecting the parties rights and

obligations incidental to their marital status to Islamic law. In his judgment Spry Ag.

J as G he then was, quoted with approval the observations of Blackwell, J in the case

of Khambatta v Khambatta [1935] - 59 Bomb. 278 at page 296 where his lordship said:

It has been argued for the appellant that the status imposed by operation of

law upon persons H who marry in Christian form cannot be altered by the voluntary

act of the parties. But, if a change of domicile, which is a voluntary act, may result in

a change of status by reason of the application of a different system of law, it is

difficult to see why a change of religion, the domicile remaining unchanged, may not

also result in a change of status, if the law to be I applied is then different by reason

of the difference of religion.

1983 TLR p319

MSUMI J

In his judgment Spry Ag. J went to the extent of saying that a marriage contracted A

according to one system of law could be dissolved according to another system of law:

"There is no principle of law that a marriage must be dissolved under the same

system as that under which it was contracted".

It is highly tempting to hold that the learned judge's view as expressed in Rattansey v

B Rattansey was in conflict with what he said in the case of Ayoob v Ayoob [1968]

E.A. 72. Fortunately the honourable judge himself foresaw this danger. In short he

distinguished the two cases mainly on the ground that the decision in Rattansey case

was influenced by the existence of local statutes in Tanganyika by then. Zanzibar is

de facto C an Islamic state. Over 90 percent of the population profess Islamic

religion. This means that the personal matter of the majority of Zanzibaris are

governed by rules of Islamic law. Generally it can be said that all Moslems in

Zanzibar are subject to Islamic law in matters related to their personal status. This

view is supported by section 11 C, (a)(b)(c) of Decree 6 of 1975 which says: D

11C. The jurisdiction of Kadhi's court shall be limited to:

a. matters relating to personal status, marriage, divorce, guardianship and

subject to the E provisions of any other law for the time being in force, the custody

of children in cases in which the parties are Muslims of the Ibathi sect or the Shafei

sect.

b. matters relating to wakfs, religious or charitable trusts inter vivos and

inheritance where the claim in respect of any such matter does not exceed five

thousand shillings, F in cases in which the parties are Muslims of the Ibathi sect or

the Shafei sect;

c. claims for maintenance, where such claims is for a lump gifts inter

vivos and inheritance where the claim in respect of any such matter does not exceed

five thousand shillings, in cases in which the parties are Muslims of the Ibathi sect or

the Shafei sect; G

The law applicable in Kadhi's courts is Islamic law and once a person is a moslem he

automatically falls under the jurisdiction of these courts. Of course, depending on the

H circumstances of the case, a case like the present one, which would otherwise be

tried by Kadhi's court can be opened in the High Court. However, generally all cases

involving personal matters and in which the parties are moslems, are to be tried by

Kadhis' courts in accordance with Islamic law.

From the above lengthy discussion, this court is of the view that the marriage of the I

petitioner and the respondent though contracted as a civil

1983 TLR p320

marriage is subject to Islamic law. One of the salient features of Islamic Marriage is

that A it allows plurality of wives. A moslem husband is allowed to marry up to four

wives provided that he can maintain them sufficiently and impartially. Hence when

the petitioner married the second wife, he was doing nothing more than exercising

his legal B option. It was culpable, to say the least, for the respondent to treat it as a

ground for leaving the matrimonial home. By leaving her husband and refusing to

return after being asked to do so, according to Islamic law, the respondent is labelled

as an insolent or disobedient wife who according to Islamic law is known as

"Nashiza". A wife's disobedience is a good ground for divorce. C

All in all, I am satisfied with the petitioner's case. The evidence adduced in support

of the suit is weighty. Hence as ordered earlier the marriage between the petitioner

and the respondent is hereby dissolved.

D Order accordingly.

1983 TLR p320

E