Juvenalis Kaijage vs Bi. Hilder Tegambwage (PC Civil Appeal No 166 of 1971) [1973] TZHC 15 (3 April 1973)

IN TH' HIGH COU1T OF TMZNL (nc) CIVIL PFL NO, 166 OF 1971 (From the docision of the District Court of Bukoba at Bukoba in Civil Ippeal No. 205 of 1971 Before J.L. Mboneko, Bsq., D.M. & Ko1ekro Pr. C. :Civi1Case282/67) JUV13K.' LLS KJIJGF a.. . .. •. a .g versus UTT T T!D fl1'( A 1/TD TA Vfl 'C iJ.L. JL.J.1JLLL1. LJJiAUJ'.l a a . . • • a . . . a a • a a. a a a . • • • J U B G 1' U iUIT. T. JO1QtTHAN, Ja The rsnondent won'ian ±ilc4 procecings in thc pr1ma court for an oruerrequiring tn- aPTe11aflt, 'icr huband to accTept c their child a child iao delivered whil- eo uerc 'liin.g apa g rt. Upon the court refusin o make tue order souh -t she appealed to the district court wrierc the original decision was reversed, the present appellant being dlarc-dthe dhiId'father From this declaration the present apea1 was brought. There have ben several ohcr proceedings between the same parties both in th.s crt and in the courts below and it seems quite clear tht tha marriage has almost broken down. For the present it will bc convenien - to restrict myself to the issue that has given rie to thIsppea1. .'t seems ageed that, after it had been blessed t - 7 children the marriage began to show visible sighs of a bown in May, 1963 when the respondent woman left tki matrimonial home apparently to àrnts, It seems agreed, too, that# although the parties had no sexual intercourse thereafter, in the month of February, 1965, that is, nearly 20 months tftar she lfi, she gave birth to the child which is the subject of the proceedings. It was tkue respondent's claim, however, that she was four months pregnant when she left the matrimonial home and that the child was Lathered by the appellant. This claim was rejected by the primary court, understandably on tue basis that the normal period of gestation is about 9 months, She accordingly lost the suit. On ar'el the 1-Tamed district maistrata took the view that, as there had been no divorce between the parties, the child was by law tnat of the marriage and the appellant was bound to accept it as his. In coming to this conclusion the magiTtrete seems to have relied on paraCra2h 175 of the local Customary law (Declaration) Order, 1963 (G.M. 1963 No. 279) which provides to the effect that, children born in wedlock belong to the father. 'ith respect, as all indications were that the child was fathered by a person other than the appellant in what would appear as an adulterous association, it could not be said to have been born in wedlock. .'\s Mr. Ruearabamu for the appellant submitted, I think the true meaning to be given to the paragraph is that the offspring of a marriage is deemed to belong to the fattier, and it follows, to his fatherês clank as distinct, say, from that of its grandfather-a That this is the meaning appears quite clear from the Swahili version, which is more reliable inasmuch as it is the standard reference, which rcaddi 11 1756 atoto waneozaliwa na atu waliooana ni mali ys baba.' a, • e . . . . .. o. .2/

.2/ And suci doubt as tiere migrit stiT: be would seem It) u1timatel resolvèdfa'ouof thimeaning by the presence in the Declaration. Order of the provisiOns of paragraph 125, namely: "If a bubñd 'n fiiid ti. his ifs is pregnant or had de1iveied a childwhichcannot be his be2ause of his absence seveial COLTSe-S arc open to him The-se courss make it open to him, among other things, to refuse to accspt.the child. !s I have a should not have been imposed on the appellant merely because it as horn wnile the parties, though living apart, were legally marric-d. The appe-lant appears to have stisfied the trial court and indeed the qi .stric.t court that he could not have ben the child's putativ-e father. 'ven so, he could, I think, hav made it a bisisi child In the event, however, he decided, as h was entitled, to disown it. Inthe- result, the appcl is allowed witi costs, the order of 'the district court sct asiac and the judgment of the primer court rcstored