Gadi Andrea vs Mrs. Agnes Youze ((Pc) Matr. Civil Appeal No 2 of 1982) [1982] TZHC 61 (2 December 1982)

I r I f i ,. I' l < IN .THE HIGH COURT OF TANZANIA AT DAR ES SALAAM · (PC) . MATRo CIVIL APPEAL NOo 2 OF 1982 (From the decision pf the District Court of ILALA DISTRICT at. IND. AVENUE Civil Appeal No. 2/;l.981) GADI ANDREA o o o o o., ., o o o.,. o. o o.,., •• o •·• o o O .APPELLANT (Original RESPONDENT) versus MRS.~ AGNES YOUZE • .,., .. .,.,., "·" • ., o o ;;.~ •., o o., • ., .. RESPONDENT · · (original APPELLANT) JUDGMENT RUHUMBIKA, J. The parties in this second appeal are spouses. They solemnised ,J. Christian marriage in 1965; and there are two issues of the marriage., The first child is a boy now a,E'd fifteen years, and the second one is a girl of about thirteen years. The spouses lived harmoniously up to 1977, when turbulent relationship set in. The respondent, AGNES YOUZE, petitioned for divorce ·in the Primary Court of Kariakoo on the grounds of adulterous association, separation and crueltyo The Primary CQurt f9un'd that the respondent had failed to substantiate those allegations though evidence, ond therefore dismissed the petition., The P.rimary Court was unanimous -•in finding that the evidence in -_ts totality had not proved any of those grounds set out in section 107 of the Law of Marriage Act 1971 (Act No. 5 of 1971) to show that the marriage had broken dow..-1 irreparably .. The respondent then appealed to the District Court of Ilala. The District Court allowed the appeal and reversed the decision of the Primary Court, thereby dissolving the marriageo The husband, GADI ANDREA, has appealed before this court against the decision of the District court~ The Distrit Court allowed .the appeal mainly on the ground that there. had been continous adulterous_ association ( wi,th another wom·an) .. I?

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• on thE:: part 'cf the app'~liant husband;. 1-loweirer, the ~v.idehc.e. O!.i. . '
• . .record 'is cl?ar that" this" problem of adulterou~ ·assoclation w'ith ·ahother woman "fas" exh~1+stively dealt with by' the chu,rch eldefs of ,r·he sp-9uses iri _1977 and that the Church '-did succeecf'.in recoriciling the spouses. The- respongent: wife condone·cf this matrimonial offence and both spouses continued to live· harmoniousiy in thei_r matrimo- nial home and setting. The· record of the lower court clearly , reveals that the respondent peiti-tioned for divorce in 1981, and that during the hearing of -the petition the petitioner (respon_dent) · could not be heard to revive this matrimonial ·offence which she h.ad (as of her own right) condoned iri 1977. Apart from this, there was no evidence adduced before the Primary Court to prove that th appellant was in adulterous association with some_ other woman, · · al though the respondent had alleged that behoit:iiour.- by the app_ellant at the Primary Court. Courts of law are empowered to dissolve marriages when such marriages are proved to have broken down beyond repair .. clearly stated ~n the Law of Marriage Act, 1971e This is
• I This court fnds that·the Primary Court was right in c:lsmis;:;ing

the petition as it did, as there was no basis upon which t}:le marr;i.age between the parties could be di-ssolved~ For that·;?:eason, thii_court does ,not hasitate to hold that the District court misdirected' it·s,~lf in reversing the decision of the pz:,imary Court, by allowing the appeal. Accordingly, this_appeal succeeds and is allowed.- sut the court makes no order as to costso Delivered his 2nd day of December 1982 in the presence of the- appellant.. Respondent being absent. DAR .ES SALAAM ·2112/82 JUDGE

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