Misukwa Kulwa vs Luhende Shimba ((PC) Civil Matrimonial Appeal No. 1 of 1996) [1999] TZHC 442 (28 May 1999)

/ MOSHI 1 J • • ~ ;;- '~ .-8~ ... '- ...:) - ~ . . . . IN · THE HIGH COURI' OF TANZANIA AT.MBEYA ( PC) CIVlL MATR.. APPEAL NO. 1 OF ;1996 (From the decision of the District Court,of Chunya at Chunya in Civil Appeal No.1 T of 199.5 Before: N.M. Kaserero - Senior D/Magistrate) MISUKWA KULWA ,. • • • • • • • • • • • • • • APPELLANT VERSUS LUHENDE SHIMBA ••••••• ••..... ONDENT The parties were husband and wife. The appellant petitioned for divorce before the 'primary court· o( Mwambani. The petition succeeded and their marriage was dissolved. The primary court made orders for return of dowcy, custody of the chil of the marriage, and division of some property acquired during the II!arrige. The: .orders aggrieved the respondent who, in consequence, preferr.ed an appeal to the district court of Chunya. The .district court varied the orders for custody and return of dowry,. and set as.ide the order for division of property. Thus the district court partly allowed the appeal. The appellant, in turn, felt aggrieved, hence this appeal whih was preferred an.d ared before me by her learned advocate, Mr. Naali, and resisted by the respondent's learned advocate, M:r. Mkmbe,. Mr .. Mkumbe raised an important uncontroverted point.of·la:w -which makes adjudication of this appeal on its merits unnecessary •. There was a fatal irregularity which obtained in the matter •. The matrimmial difficulty· was not first referred to a Marriagio Conciliatory Board before the petition 'for , ' • • • ,# ~ • " divorce was filed in courto This lapse offended the provisions of Section 101 of the, Law of Marriage Act 1971, hereinaftr referred to as _the Act, ' ' which read: 11 No perspn shall petition for divorce ,unless he or she •· has first referred the matrimonial difficulty to a Board and the Board has certified that it has failca .. to reconcile the parties 11 e ••••ooeo•e /2

• 2 - Section 106(2) of the A9t rBquirs every petition for a decree of divorce to be accompanied by such a certificate which must set out the findings and recommendations of the Board iri terms of 9 ection 1o4(5) of the Acto There are six exceptions to the requirement for reference to a Board specified under Section 101 as paragraphs (a) to (f). In the circumstances of this case, however, paragraphs (a) to (e) were inapplicable, and there were no extraordinary circumstances, let alone to the satisfaction of the trial court, which made reference to the Board impracticable in.terms of paragraph (f). In point of the policy of the Act, a Marriage Conciliatory Board is a very important institution in the scheme of things under the Acto It is an impartial body expected to restore confidence in parties confronted with the stresses and strains of married life. It is in a position to ,make an object._,e assessment of the circumstances followed by an attempt at mediation .d reco- nciliation which are essential under the Acto This court held in Shilio · Mzee v • Fatuma _Ahm ( 1984) TLR 112 that in the absenGe of a certificate from a conciliatory board, and the case not . I .. falling under any of the exceptions listed in section 101 ( a) to ( f) _of the Act, a petition for divorce becomes premature and incomptento In the circumstances obtaining in this case, I am satis_fied that the failure to_ refer the matrimonial difficulty to a Marriage Conciliatory Boa~d before the petition for divorce was preferred vitiated the proceedings, judgments and orders of ) both courts below which are, in consequence, herepy declared null and void. They are ·,uashed and set asideo The appeal is accordingly allow'ed. The parties are to remain legally married, and in the event that one of them wishes to divorce the other he or she must abide the lawo AT NBEYA. .. ' .. I m·ake no order ap to costs. B.P. M0SHI JUDGE •