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ATHANAS MAKUNGWA v DARINI HASSANI 1983 TLR 132 (HC)



ATHANAS MAKUNGWA v DARINI HASSANI 1983 TLR 132 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

September 6, 1983

(PC) MATRIMONIAL CIVIL APPEAL 5 OF 1982 D

Flynote

Family Law - Divorce - Irreparable breakdown of Marriage - Petition founded

exclusively on petitioner's wrong-doing - Whether divorce decree should be granted

(s 107 (1) (a) of the Law of Marriage Act, 1971). E

Family Law - Divorce petition - Requirement of reference to Conciliation Board -

Whether a mere letter suffices as reference - S. 101 of the Law of Marriage Act, 1971.

-Headnote

This is an appeal against the judgment of the District Court at Kisutu in which the

learned F District Magistrate reversed the judgment of Kinondoni Primary Court

and granted divorce to the respondent in this appeal. The Primary Court had

dismissed the petition on the ground that there was no reference to the Conciliation

Board prior to the filing of the suit. The District Court had found that the marriage

between the parties had G irreparably broken down and that exhibit 3 (which was in

the form of a letter) in the trial court was a document from the Conciliation Board

showing that the matter had been referred to them. The main issues on appeal are

whether the marriage had broken down H irreparably and whether the matter was

referred to the Conciliation Board prior to the filing of the petition for divorce in the

Primary Court.

Held: (i) Where the petition is founded exclusively on the petitioner's own wrongdoing

I in the absence of any special reason a divorce decree should not be granted;

1983 TLR p133

BAHATI J

(ii) where there is no certificate within the meaning of s. 101 of the Law of A

Marriage Act, 1971 from the Conciliation Board indicating its failure to reconcile the

spouses a petition for divorce becomes incomplete.

Case Information

Appeal allowed. B

No case referred to.

[zJDz]Judgment

Bahati, J.: This is an appeal by Athanas Makungwa, the appellant in this appeal,

against C the judgment of the District Court at Kisutu in which the learned District

magistrate reversed the judgment of Kinondoni Primary Court and granted divorce to

Darini Hassani the respondent in this appeal.

The Primary Court at Kinondoni heard a petition for divorce brought by the

respondent D against the appellant. The evidence adduced in support of the petition

was that the appellant told the respondent that he was tired of her and that he no

longer enjoyed sex life with her and he therefore wanted his dowry back. Then the

appellant wrote what is commonly known as "talak" to signify that he had no

intention of living with the E respondent. This "talak" was produced in the trial

court as exhibit 1. Then the respondent filed this suit.

The appellant on the other hand said in the trial court that he wrote exhibit 1 after

the respondent had insisted that she get a "talak" from him or else she would stab him

with a F knife which she had. Moreover the respondent used to sleep outside the

matrimonial home with other men. Also the respondent's mother had objected to

their marriage from the beginning and the respondent used to tell him that their

marriage could not go on.

The Primary Court dismissed the petition on the grounds that there was no reference

to G the Conciliation Board prior to the filing of the suit. On appeal to the District

Court, the District Court found that the marriage between the parties had broken

down irreparably and that exhibit 3 in the trial court was a document from the

Conciliation Board showing that the matter had been referred to them. H

The main issues on appeal are whether the marriage has broken down irreparably and

whether the matter was referred to the Conciliation Board prior to the filing of the

petition for divorce in the Primary Court. As to the 1st issue, I have no difficulty in I

agreeing with the District Court that this marriage has irreparably broken

1983 TLR p134

BAHATI J

down. There appears to be no more love left between the parties and even the

appellant A has indicated that he wants his dowry back. But from the evidence

which has been adduced, no real grounds of divorce have been proved by the

respondent. The respondent did not in her evidence prove any matrimonial offence in

particular or in general against the appellant. On the contrary, the matrimonial

offence which appears to B have been referred to in this case is said to have been

committed by the respondent. The appellant in his evidence alleged that the

respondent was sleeping out with other men. Also the respondent is alleged to be

quarrelsome. All these allegations were not denied by the respondent. It would

appear then that the petition is founded exclusively C on the respondent's

wrongdoing, the respondent here being the petitioner in the trial court. By virtue of

section 107 (1) (a) of the Law of Marriage Act the court is precluded from granting

divorce in a situation where the petition is founded exclusively on the (petitioner's)

respondent's own wrongdoing. I cannot see any special reason for directing D that

divorce decree be granted notwithstanding that the respondent is the only

wrongdoer. I therefore hold that the District Court should have refused to grant a

decree of divorce in this case.

I will now deal with the second issue. This is whether there was a reference to the E

Conciliation Board in terms of section 101 of the Law of Marriage Act prior to the

filing of the petition for divorce. Section 101 of the Act provides thus:

No person shall petition for divorce unless he or she has first referred the

matrimonial F difficulty to a Board and the board has certified that it has failed to

reconcile the parties.

In this case there was exhibit 3 which is letter from the Secretary of Zone No 6 G

Makurumla ward to the Chairman, Conciliation Board requesting the said Chairman

to give a letter to the respondent Darini Hassan to enable her to file a divorce suit in

Court. This letter goes on to say that the Zonal Conciliation Board is tired of

reconciling the parties. The question is whether this letter exhibit 3 is a certificate

from a Board in H accordance with the provisions of section 101 of the Law of

Marriage Act. I think not. This is because the said letter is of general observation.

Either one or both parties used to go to the Board for reconciliation. It is not clear

from the letter whether both parties went before the board and the board failed to

reconcile them. Furthermore, the letter is I appealing to another board to issue a

letter to the petitioner to take to court. This letter cannot be said

1983 TLR p135

to be a certificate of the Board directed to the Primary Court expressing its inability to

A reconcile the parties. I therefore differ from the finding of the District Court and

hold that this letter (exhibit 3) is not a certificate from the Board within the meaning

of s. 101 of the act. I uphold the finding of the trial Court that there was no reference

to a Board prior to the filing of the petition for a decree of divorce. The petition

therefore was B incompetent and could not be entertained by the court.

For the above reasons as disclosed in dealing with the two issues, I allow this appeal. I

do declare that the marriage between the parties still subsists. I make no order as to

costs.

C Appeal allowed.

1983 TLR p135

D

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