Nyabaruri D/O Kitangita vs Mugaya S/O Nyamori (Matrimonial Civil Appeal No. 10 of 1981) [1982] TZHC 90 (28 October 1982)

rn LiE tll.GH comni 0F 1 TJu,ZAI-IIA /1.T MUSOMA MATR. (lC) CIVIL AllEAL NO. 10 OF 1981 ' ' (From the Decision of the lr. Court of Ngoreme at Ngoreme in Civil A1-1-eal No. 5 of 1981 NYJ\BATURI D/0 KITANGITA ••••••••••••• AHELLANT versus MUGAYA s/o NY/I.MORI O O. 0 0 o o O •.• 0 •.• 0 0 O O O O RESi: ONDENT JUDGMENT CHUA, J: Mugaya Nyamori 1-etitioned for divorce on the ground that the a:t-1-,ellant his wife was deserting him frequently and had said s1-ecifically th1t r~tier than live with him she had rather die. The 1-etitioner (res1-ondent) adduced evidence of the acts of desertion and of the attemI,ted suicide by his wife. The aaellant did not rebut that ,.., · evidence. The trial court in my view was entitled to find that on n balance of 1-robabilities the ree1-ondent had I,roved desertion and mental cruelty of such a nature th 0t the anellant could not reasonably be ex1-ected to I,ut u1- with_. In this aH,eal the wife states that she loves her husband and th:::it the decision of the lower court was against hEr because she was not allowed to call any witnesses • But the record shows that in the l rimary Court when called u1-on to def end herself she merely stated:- "Mimi namt aka Bwana wangu sin::i za i di h;,yo ndiyo ma el e zo y angu. 11 She did not say anything more or tell the court th1t she had witnesses to call. What she is now saying in her memorandum of aHeal is a me:.. 1 e afterthought. The only point worth considering is the ~~stody of the children of the marriage. The trial court did not make any order on that. The aggrieved 1-arty should make an a1-1-lication to the same court on custody and maintainance of the children of the marriage. The aueal is dismissed entirely but any of the 1-arties to this come can seek for an order of custody of the children in the trial court. A right of AHeal will lie·-to tli.is court for any order that will be made. MU 28