Felister Chiwila vs Anton L. Akahova (PC. Matrimonial Civil Appeal No. 6 of 1990) [1991] TZHC 2386 (13 July 1991)

IN THL HIGH_ COURT OF TfJ.nAN!A li.T NTWARA , .. (J::'C) M/iTRil10NIAL· CIVIL APPEAL NO:. 6 .OF ·1990· MAp.l\SI DISTRICT COOCT c:r:vn;, l1PPLAL N0-.19-/90 ~ . ,. . ORIGINLL FROM X,ISFl{I',SE P11IJVL'\RY COURT CIVIL Cii.SE NO. 20/ 90 FELISTER CHIWIIi~ .......... ~ .... • .. ,APPELL/i.NT Versus lJifTOliJ L.. AK.l.':...IOVl',. • ~ • , •••••••••• • ; ~ BESPONDENT JUDGMENT. -·------ LA.WENA, PRH. Ext. Jur~ ......... The o,,ppellmi.t Felioter Chiwila, hereinafter to-be referred to a.s the petitioner, io a.ppealing againot the decioion of :f1c:i,sasi District Court, The fa.ct.J of the c.1oe in brief were a.a follows. . . The petitioner Got r.1arried to Anthony L. Akahova, hereino.fter to b~ referred to o tho respondent, on.9/4/04. Their na.rriage wn.o celebrated according to Civil riteo. Prior to their r:1arriage the petitioner and the reopondent were living toeether un,i.er cuutq1Ja.ry ri tos dnce· 1°981 • During their stay aa husb:Jml and wif c the two parties did builc.1 a houoe si tuatec. at Nyasa.,_ Sometime in 1900 their ;·.··' ."./ marrio.ge bccGltie sour during which period the re0pondant uood ., to drink heavily o.nd 'returning hODO lo.to at night, This bchaviou.r gr_oo..tly dicturbod the pcti ti oner c1 chc always usccl to rc1)ort to hi □ brother who tried to .reconcile thou.· .The petitioner also received inc,uJ.ting lottero from ladies oho believes were having iJ.ffairs with the respondent. · Thio as if waa no"i enough, the respondent u.oed to cl1.:1so • \he petitioner from their mairimonia.l hor:ie. The petitiner eot fed up an.d thus took the nio.ttcr to thG Reconciliation Board. She took . the,mattor to the Boo.rd ftcr the respondent had writen a letter he clo..iri1cd wao a. 11 Talak 11 • The' b0ard failed to :reconcile the po.rties and thus referred the matter to Liseke,-.::e Prinary Court •. After the Priraary Court had taken all tho evidence it wo.s .. of the view tl1,;J,t the mn.rriagc between the po.rtiec had irreparn.bly'broken .down and th.:W granted divorce. It 8100 ordered that the houoe they, the parties . :..: • •• ,,. f.• •••••.•• /2

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o 2 were living -'irr $ oo,qiiktod· .joint1-i . t eh -: had_ to get !J;· sl1£1i'e. The reS:J;>ODdent was .aggri_ovod -and thus. appeaieu to the D.i..otd.oi ' . -Court. In the'·Diot:t::i,.c't Cou.1."t h loainod tria.l MagistJ:at.c. baving perused tJ:1rough the reord was of the vew that there was not enough ' l • • • • • • - ' . • cvidonoo to prc;v-e t!1a.t the uarringe had. broken down irropa;r:ably • He was also of the view thut the houoe waG not·t built by joint cl'fort.s of the 1)0.rt.i~ and dGclaF~.d, ;t}'lfl:- _i.t. - ·:1il+e 6-l.e---proporty of the ~ The peti:t.ion;;· wa; not -stiofiod wi_th that decision and thus the appeal --~ before this court·. . ... . '•, .... . The whole appeal in t{u3 case concerns t·wo is3; that is divorce '·· · 1 divL:;ion of Illc•.trimonio.J. aco0t.s. Divorce is granted -wl.1,ere there is proof that marriO-{;e has broke'h._down irreparably. Under oection 107 of the Marriage Act no.5 of 1971 facts that constitute that marriage has hroken down r.re narrntou. as follow·s:·- . • · · , · · 107 -( 1) In deciding. whether or not· a marriage hao broken I down• the court oha.11 J:iav regard to all ·relevant- evidence regarding the conduct and circunntances of.·i;_he parties and, in particular - (d) ,s.hall, unlecs tho· court !OJ:! any special .r-!3ason, ... . ~ . . . ~ ,r.:otherwisG directs, r<;ifse to grant a decree· wher·e I , ·• . : . • • • . • . • •• ,· • 'S .. ·a petitioh is .founde·d exclusively O!l _'.the··petitJ.onel-'hl ., . . ~ . . -- .•. . ,, own wrong doing; arid .. (b). shalt have t:egard to the custom of the- co$Jltiu:i.'ty'ttf" which the pa.:rti.ca belong. ·. ( 2) Without prejudie to· th8 generality of sU;bsecti0n (1').:- .... the_ ecru.rt .may ace.opt any one_ or ore. of the. following ... . . ... t >. ' rriattero n.s evidence that a·marriage hao broken-down but proof of: any such 11attci· shall not ·entitle a party as of .. right to· ·a decree - .. (a) -- . ,t· .•: (b)· -" .. (c) .celty, wncthcr rJCmtal or -hysical, inflicted by . the. reqcnderit on the poti tioner or cm the chile~' · . if. any, of the marriage; . ' .. : (d). wilful neglect on the part of the respondent a The above _.ingredients if pioved-hlps th court m·deo:l.d~ whether :·, ·.-1:

\ /I 3 is the. mar.i:iage has broken down or not. There/anple evidence that in 1980 " the respondent started drinking: alcohol heavily and thu □ uocd to return home very late at night. Due to his drunken behaviour he failed to bring necessities o! life to bis matrimonial hor:ie. This.io obviously contravening s. 107(2)(c) by becoraing cruel to hi □ wife. There io evidence that he used to chacc the petitioner out of the r:iatr.imonial home late at night when he returns froo drinking. I believe this is a. great mistreatment to a wife.. He thm1 useo all his incot:ie by ta.J.d.ng alcohol and fails to buy food ancl clothing for the family. This obviously contravenes 8 .. •j 07( 2) (d). The rcsponden.t1 a behaviour ha.a.. persisted for quite sometime till the petitioner has failed to wi t,lls:tanda .. I think this is cnougl'. to show that the narriage between the partic.a ha.a. irreparably broken dmm. Cotring to the division of natrimonial assets, thore i.s aople evideuce that the two partief~ built a house situated at Nyasa. The petitioner 1s a teacher and she used pa.rt of her oalary in buying various things £er the construction of 1.;:·1"' their matrimonial home. The reop0ndent 1 s claim that the petitioner got narriod after the house had been built had no ncritt The petitioner did participate fully.in the construction of tho house and thuf:l she deserves to be coapenoated, I therefore allow this appeal and I quash the decision of the District Court. Divorce io hereby granted and the petitioner should get half the value of the house they built at Nyasa, The respomlent to meet the costs in this court an1 the court below. It is so ordered. ~ ~ S.J. LAWENA PRM. EXT. JUR. 13/7/91 ;Dated at Mtwara this 13th day of July, 1991. The judgment to be. typed -and se!1t to Masa □ i District Court and delivered to the parties •. AT MTWARA S.J. LAWENA PRM. EXT. JUR •. 13/7/91 ' \ ""-