RAMADHANI OMARI v FATUMA MAHUMBI 1983 TLR 227 (HC)
Court High Court of Tanzania - Dodoma
Judge Lugakingira J
September 8, 1983
(PC) CIVIL APPEAL 3 OF 1983 E
Flynote
Family Law-Divorce - Custody and maintenance of children - Whether party entitled
to maintenance for a burden wilfully incurred. F
-Headnote
The parties had been married in 1972 and cohabited until 1974 when the respondent
deserted the appellant taking along with her one child of their marriage. Two more
children were begotten with the appellant during the period of separation. In 1982
the respondent petitioned for divorce which was granted on proof of the longevity of
the G separation. The custody of the two elder children was given to the appellant.
The youngest was left to the respondent and the appellant was ordered to pay
maintenance for it. The respondent subsequently instituted proceedings claiming
compensation of Shs.4,000/= for having maintained those children. The respondent
lost in the trial court, H but succeeded in a subsequent appeal to the District Court.
From that decision the appellant brought this appeal.
Held: A woman cannot claim or receive compensation for maintaining a child she
has I wilfully removed or kept from the father's custody.
1983 TLR p228
LUGAKINGIRA J
Case Information
Appeal allowed. A
No case referred to.
[zJDz]Judgment
Lugakingira, J. The parties herein married in 1972 and cohabited until 1974 when the
B respondent left the appellant. They then had one child which the respondent took
along. In the course of the separation she adulterously begot two more children
which were acknowledged to be the appellant's. In 1982 she petitioned for divorce. It
was granted due to the longevity of the separation but the trial court held that the
respondent C was guilty of desertion. In granting divorce the court also granted
custody of the two elder children to the appellant. The youngest was left to the
respondent and the appellant was ordered to provide maintenance for it. D
Soon after the conclusion of the divorce suit, and it seems consequent upon
the respondent being deprived of the custody of the two elder children, the
respondent commenced the present proceedings claiming compensation of Shs.
4,000/= for having maintained those children. The trial court dismissed the claim,
observing that she was the guilty party in the E break up of the marriage. She
appealed to the District Court. That court took a different view and did so it the
following terms:
takribani, matunzo wakati familia iko kukeni ni juu ya mume bila
kujali ni nani F mkosa(ji) au mtu aliyesababisha utengano huo.
The court then went on to observe that the obligation to maintain children rested on
both G parents and, therefore, awarded the respondent Shs.2,000/=, half the amount
she had claimed. From that decision the appellant brought this appeal.
I should perhaps first say a word in passing on the respective duties of parents with
regard to the maintenance of their children. It seems to me that in normal
circumstances H the duty to maintain infant children is the duty of the father alone.
I believe that this is the correct interpretation to be put on subsection (1) of s. 129 of
the Law of Marriage Act, 1971. For that duty to shift to the mother, wholly or in part,
it seems that the conditions set out in subsection (2) must arise, namely, the father
must be dead or his I whereabouts must be unknown or he must be, and to the
extent that he is, unable to provide maintenance. I take that view having regard to the
fact
1983 TLR p229
LUGAKINGIRA J
that the provisions of subsection (2) are expressed to be subject to the provisions of A
subsection (1). It is therefore suggested that except where the provisions of subsection
(2) can be brought into play, there would be no legal justification for apportioning
liability.
The question in the instant case is whether on the facts and circumstances as found by
B the trial court the respondent was entitled to any compensation. The authorities
and the statutes appear silent on the matter. I think, therefore, that equity or common
sense should be able to provide the answer. It does not occur to me that customary
law lacks a concept the equivalent of volenti non fit injuria or la kujitakia halina
majuto. There are strong reasons to hold that such a concept is recognised and, by
way of C illustration, I need go not further than refer to para 74, G.N. No. 279 of
1963, which bars maintenance to a divorced woman where the divorce is brought
about by her own guilt. The principle behind this is that a party should not be
rewarded for his own wrong. D It similarly follows, in my view, that a woman
cannot claim or receive compensation for maintaining a child she has wilfully
removed or kept from the father's custody, and I therefore differ with the learned
appellate magistrate in his statement quoted above. To put it differently and shortly, a
woman should not claim or receive compensation for a E burden wilfully incurred.
It was on that principle that the Primary Court reached its decision, although citing
irrelevant provisions. Since the respondent was a wilful deserter, and took or kept the
children in those circumstances, that decision was manifestly sound.
I will accordingly allow this appeal, as I do, and set aside the award of the District F
Court. Since I do not know the respondent's means, there will be no order as to costs.
Appeal allowed.
1983 TLR p230
A
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