Shamshad Rehmtulla vs Peter M. Naali (Civil Appeal No. 39 of 1988) [1991] TZHC 2736 (12 July 1991)

i t I I ~ THE HIGH COURr QF TANZANIA AT ARUSHA_ CIVIL APPEAL.NO. 3g OF 1988 (From the decision of the Resident Magistrate's Court of · M'ashi. la·t: Moshi ·in Origlnal · Matrimonial Cause No. 4/87 - I,:3EF0R'.E; A .• -,.A. t'JCHIMBI, tsq~, Resident Magistrate)' . SHAH.SHAD .RHMTULLA. • •.;a.•.· •••••••••••• .... • • APPELLANT (Originl Petitioner) .-: i j versus ... -., .J?T.E M_._..,_l'liμU,I o.••·•.,•.••o••·"•················RE,SP.0N0ENT .: ., . '• J . : (Original Respondent) f'. ,JUDGMENT .. :,;. MROSb·; J·~ : : .-..- .......... ~ , .... The· appellant,· Shamshad Rehtulla, obtained a divorce deeree , · ...... against -th~' resp6ndet1f;; Peter Naai.1·, in the Court of the • • • ' ,. !. .,; .. •"'i .... , • -. I'". Resident. Magistrate at Mosni', on 3rd March, 1988 . (although the dre·e _i·s w'rng·l_y ·dat·ed ·'May', 1988 ,-~ During the -divorce· petition th~- ap.pel1nt aisc:Fprayed for --ustdy and mair,ternce, of the thre~ :issues cif"·the marriage; while it subsistd. The issues ake Tko· Peter Naali, now aged 1~. y_ars, Matley Naali, now aged 13 years and h'aheeda Mohamed' ·alici"s" Wyle, now aged about six years. Sh~: was granted under· the' dce~ cust:6dy of the third issue only . . .., . . . . ~ • ! ' . ..I. • ' • • • and maintenance for that: ·1ssue in the sum of shillings 6Ct/= per month, instead of shi_Ii{ng~ 2 ,ooo;; per month, which had been ' •J • ·· .asked~ ·custody of th~:-, othr· two issues was granted to the • • • ,. • .:---: • : • : ~ ' •· •• • '",. l ;•:. ! '' • .:.:: • • • : • ,. · respondent.· However·~ ·prio'r to the decree, .the appei1ant had been granted ·a:n 'inteirn cusbdy ord·er i~ respect 'of the child Matley. The: appefiarit hs' ben aggrie.;,ed _by· th~ custody order regarding·Tek6 and Matley and also by the order on the quantum of 'maintenance· regarding. Waheeda. Therefore' through her advocate, •Mr. Marurna', · sh~ has appealed to this court for ·reversal · :i4, th~ ;viii ,-t _.cidy and mintenane Ofde.;-s •. A~ tl)e hearing of the appeal the _appellar,t was aly represented by 'Mr. _.'Maruma·, learned .. Consel, -ad 0 the respndel"\t fended for . . . . . ' . -. . . . . . : ~ . . . ' :. himself;,··: Both the appellant and the respondent are well educated. Uni:versi ty graduates. ·,:.,· The appellant ••••••••• /2

• ' 2 The appellant is of Asiatic extraction while the respondent is African. They contracted a civi~- 'ni?rriag~ in Dar-es-Salaam in 1975 but, subs_equently ,· in· October,· ;1978 they went through an Islamic marri'age c.eremony i·n TaJ"lga. That· w€:is done· notwithstanding the fact that the respo.nd.ent is a Christian •. ·,,.. Fo.t:. mo.st ·,u .. · . 0£. the· .time during their married life the parties dog life and", on occassions, violence was used by ~ t l • •. led a cat and tl1e. resp-ondent on the appellant. The appellant frequently . ; ,. . complained against the respondent for pfaithfulness and, as can . . . . .. , .... be--gleenect· from the· evi.dece, not without reason. The respondent has obviously been licentious, with abandon. Those aspects of ,, his reputation certainly influenced the trial magistrate to malce ft.... . ... ~ .. -- . the interim order of custody of the Child Matley in. f,avour of the appellant. ·But quite ~~riosly~,withoUt any 9Vidence of change . . ·, . . 'of circum 9 tances, e trial magistrate i-n his judgment set aside the-'iiiterim custody or,der ari, instead;· granted custody to the respondent. In ?-oing .s_o the lea.t;'ned ·resident magistrate erred. Matley himsef .said qui_t.e _p.ainly that he preferred to live with his mo.ther. If- may,_quote .. hi,.own·wordl3~ he said under cross- . ... . . :.1! ', .: .: . . examination by the .J:espondent - · ... · ii.t m hpp_y li vi.ng wih- my mother., · My love with (sie) her is greater than -1 t is with ·you ( the respo_ndent father)" Ma-cley_maintains the .;ame view to this day. At the time of · hearing this appeal I spent a few minutes with him in my chambers, with .leave of -h.i,.s p_areflts but in ·their absence;. and he was quite f'irrri that he. prefers to live with his mother, the appellant. In custody matters, ·the wishes of the child, where they can be obtained, must be given the utmost consideration and it is only in very cogent and exceptioi:ial circumstances that a court my Qisrcgard .them. For the above reasons I quas·h ana set asid.e the lower court order granting the respor:,dent ·custody of the boy Matley. Instead, the appellan~ is. granted· custody of Matley. The lower court, as · indica~e<;l earlier, granted the appellant eustody of the youngest child Waheeda. The respondent •••••• /3

llllllf-- l - ' 3 The respondent has not appealed against hat order and, even in his countr-affidavit which he filed in.triis court, thre is no indication that he seeks to have custody of that child This chiid has aiways bee~ in the formal custody of the appellant and there __ is no apparent reasbn for d.is turbng that status quo z although the rspondent in his _oral subissions before me somewhat half-heartedly said he would wish to have custody of all his childrefi ,_ .. incli.lding Waheeda or Wayda, as he calls her. : .. . . .. The .p.osition with the 1'oy- Teko -is -different. He had indicated before the lower court that he preferred. to li 11' ·with the respondent. He has repeated' that. wish. to me. The appellant does not appear 'co press for ·a change of custody reg·ading him. I uphold the·lolter··court·:ordet granting·the.respondeT't custody of the child 'l'eko. The ·appellant, s '.metioned earlier in this judgment, prayed as an ancilliary relief in the petition for judicial . . separation, later a dee.ree of divorcej for maintenance of the chldren, if she was granted.their custody. She now complains that :'the amount of shil'lihgs 600/= which the lower court -allowed ;for the maintenance of Wahe·eda; w·as. inadequate. Not only that. The rcGpondent has not even· complied with that order because, todate, he has not.paid a cent as maintenance. I find no compelling reasons for me to ·dis.turb ·that quantum of maintenance. It was not · manifes.tly inadequa.te, considerfng the vague evidence which was gi V'en regarding the fin.ancial abili'ty of the respondent at the time. I think however, that the amount should now be enhenced. The ·respondent said he gets a salary or about 7,000/= per month. He should, therefore, as from the date of this judgment, pay a monthly maintenance of shillings .isoo;="· for the child Waheeda. He must also pay up the arrears of maintenance in the sum of Shs.600/= per mohth, as ordered by the lower court. Now that this court has reversed· the lower court order regarding custody of the child Matley, the respondent is also under obiigation to'provide fo his maintenance. His view that he is under obligation to provide only for the children living with him has no le·gal support" •. The Law ••••••• /4

l -- .4 The Law of Marriage 'Act, 1971 stipulates in section 12,(1) as follows 11 i29('1) Save where an agreement or order of court otherwise provides, it shall·be the duty of a man to maintain his infan·t children, whether the!- are .:1-..n .. his custody or the custody ·of any other person, either by p=vcing them with such accommodation, clothing, food a!"ld. edncation' as may be reasonable having ·regard to his m'eans and station in life or by paying their cost thereof"., (My··underlining for mphasis )'. · Considering that the respondent shall·c0ntinue to have custody. of Teko a11d ·has·;to maintain him, I order that he pays Shs.1500/= per month for the maintenance of Matley. This order takes effect from th," date of this judgment. The·· amo·unts ordered for the maintenance of Matley and Waheeda may seerri ''to be ·patently inadequate, considering the current costs for maintai·ning chiidren· whose parerits are ·of the status as revealed in the respective filed affidavits;;:· The appellant is a. Corpoation S'ecre tary with the Kibo Match Corp·ora tion Limited , which · is a iSenior management position· and the repondent is the Headmaster of Ka·ratu Sccondary"Sch:ool, which is a senior Government office. The· appeli:ant, ''therefor, ·is considreci capable of ontributing substantially towards tfre maintenance· of 'the. two children iri her . . ~ . custody; h'cnce the seemin,gly inadeqate ·amounts of maintenance ordered against· the respondent'· It is impdrta.nt that all the 1 :chiid'ren. get ample time ·to be seen by hc,th parents. It h"elps. them :to get a somewhat balanced emotional attachment to s\ic:h pa'renfs, to the extent that it• is possible. So £ar Teko is· able to spend part of his school holidays,with each parc:nt in· ·turns, which ·is commendable and should continue to be so. · A inutually accepted arrangement must now be made for the respondent to have easy access to his children Matley ,md Waheeda who will be in the custody· of the appellant •. In the result, this appeal has substantially succeeded and the appellant must get her three quarters of her costs .here and in the ::;9::urt. (J'. ~~i ', .... Miss Bi<J:;ye, T.L.c. for Mr.. Ma.r:uma.