Yusufu v Kilala (Matrimonial Appeal 1 of 1979) [1981] TZHC 2456 (3 March 1981)

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Yusufu v Kilala (Matrimonial Appeal 1 of 1979) [1981] TZHC 2456 (3 March 1981)

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Citation Yusufu v Kilala (Matrimonial Appeal 1 of 1979) [1981] TZHC 2456 (3 March 1981) Copy Media Neutral Citation [1981] TZHC 2456 Copy Court High Court of Tanzania Court registry High Court Dodoma Main Registry Case number Matrimonial Appeal 1 of 1979 Judges Maina J Judgment date 3 March 1981 Language English

Summary

Flynote

• Family Law Conversion of monogamous marriage into a polygamous one-Whether change of religion by one party to the marriage constitutes conversion. S 11(5) of the Law of Marriage Act, 1971.Ramiu er Parties living together near erroneous ej ina1 are legally married-Technical adultery. Family Law-Compensation or damages for adultery-Matters to be considered on computation. Family Law-Division of assets or dissolution of marriage. Family Law Custody of children-Welfare principle applicable

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Case summary

The first appellant and the respondent got married in a Roman Catholic Church in 1961. In 1977 the first appellant travelled to Zanzibar and when he returned he informed the respondent that he had changed religion to a Muslim and married the second appellant according to the Islamic law. After the failure of the church authorities to reconcile the parties the respondent left the matrimonial home. She later successfully petitioned for divorce in the district court. The court also ordered the appellants to pay damages for adultery. The appellants dissatisfied with the decision of the trial court appealed to the High Court. a Held: (i) change of religion by one party does not change the status of monogamous marriage into a polygamous or potentially polygamous marriage unless both parties make a declaration changing their religion on their own free will; (ii) where a married man does marry a woman and they live as husband and wife under the erroneous belief that they are legally married, their cohabitation amounts to technical adultery; (iii) in assessing quantum of damages for adultery there is a need to differentiate technical adultery from adultery by people who have not gone through any form of marriage; (iv) as the evidence disclosed that the house was built exclusively by the appellant with his own funds and the household property bought by him with his own money, the respondent was not entitled to any share therein; (v) in deciding custody of children the fundamental principle of law that is aрplicable is the welfare of the children and as they were over seven years in age and were schooling in Zanzibar living with the mother of the appellant, their custody should not be changed

Order

Appeal Allowed

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