SAIDI MOHAMED v ZENA ALLY 1985 TLR 13 (HC)

SAIDI MOHAMED v ZENA ALLY 1985 TLR 13 (HC)

Family Law - Divorce - Cruelty as a ground for divorce – Meaning of cruelty.  

23 September, 1985.  

Lubuva, J.: 

Before Mkamba Primary Court in Kisarawe District, the Respondent filed proceedings seeking divorce against the Appellalnt, her husband.  She was unsuccessful before the Primary Court from whose decision, she appealed to the District Court Kisarawe.  Her appeal was allowed wherein the marriage was ordered dissolved.  From that decision the appellant has appealed.

In her testimony before the Primary Court, the Respondent gave what appears to be quite a detailed version of events of cruelty against the appellant which ultimately gave rise to the petition for divorce.  She had alleged that the appellant was in the habit of beating and stripping her naked before other people.  She cited one incident in which she was beaten and had to seek refuge at the house of the ten cell leader one Athumani Kindumbo.  The appellant admitted to have done so and pleaded to be forgiven by the Respondent before the ten-cell leader pledging not to repeat such incident.  This incident is not denied by the appellant who as a matter of fact gave Shs.10/= to the Respondent by way of appeasing her.  The ten-cell leader Athumani Kindumbo (PW.1) also gave supporting evidence on the matter.  The Respondent also alleged that on another incident, the Appellant again beat her up and the matter was taken to the Police dispensary and the ten-cell leader who, according to her was insisting that she should continue staying with the appellant and was not keen to have the matter taken to court.  On this occasion, the Respondent alleges that the Appellant agreed to pay the Respondent Shs.50/= so as to have the matter settled amicably at home.  In regard to this, there does not seem to be any dispute raised as the Appellant himself admits in his defence when cross examined by the court when he states:

.... Nimeona nimekosa ndiyo maana nimelipa faini ya   Shs. 50/= kwake.

This means therefore that apart from the incident in which the Appellant agreed to pay Shs.10/= to the Respondent, there was another incident as the respondent claims in which she was beaten resulting in the payment of Shs.50/=.  This is because, the Appellant admits of only one incident of beating his wife, the Respondent when he offered to pay Shs.10/=, to the Respondent in appeasement.  On record, it is also shown that as the hearing of the suit was going on, the Respondent reported to the Court that the Appellant was threatening to kill her.  The Respondent was thus ordered to stay at her father's  A  house until the day of judgment.  On such evidence the Primary Court Magistrate who sat with two assessors in agreement with the assessors was of the opinion that no sufficient evidence had been adduced in support of the  B  Respondent's case.  That cruelty had not been proved to the extent of warranting the dissolution of the marriage.  The Respondent appealed to the District Court Kisarawe District.

The learned district Magistrate in a well reasoned judgment analysed the entire evidence as adduced before the Primary Court.  He came to the conclusion that the evidence as adduced sufficiently proved cruelty on the part of the Appellant the husband in terms of the provisions of Section 107(2)(c) of the Law of Marriage Act, 1971.  Having believed as the Primary Court did in the truthfulness of the evidence of the Respondent the learned District Magistrate found as an established fact that the Appellant had been in the habit of beating his wife, the Respondent and had stripped her naked before the Appellant's father.  This, in the view of the learned District Magistrate was sufficient cause of mental and physical torture on the part of the respondent.  As pointed out, the learned District Magistrate held that the marriage had in the circumstances broken down irreparably.  The Appellant's main ground of appeal is that the beating of his wife the Respondent was an isolated incident which took place way back in the past was not sufficient to prove cruelty.  He maintains that he still loves his wife in which case it was erroneous on the part of the learned District Magistrate in upsetting the decision of the Primary Court.

At the hearing of the appeal, the Respondent stressed that she is no longer interested to live with the Appellant as man and wife due to the persistent cruel behaviour of the Appellant towards her.  She contended that though the Appellant had promised before the ten-cell leader not to repeat beating or undressing her infront of other people, he does not adhere to his word.  The Appellant did not want to say anything before this court apart from his statement that anything that the court decides would be alright for him, he repeated his pleading that he was still in love with his wife, the Respondent.  On the main, there is no dispute that the gravamen of the case is centred on the question of cruelty on the part of the appellant.  Cruelty is defined by Tolstoy in his book, The Law and Practice of Divorce and Matrimonial Causes, 5th Edition at page 60 as:

.... Wilful and unjustifiable conduct of such a character as to cause danger to life, limb, or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.

Such was also the holding of the House of Lords in the case of Russell v Russell (1897) A.C. 395.  I would with respect adopt and apply this principle of law to the instant case.  With this guiding principle, there can be no doubt that the learned District Magistrate was justified in his decision.  There was sufficient evidence from the petitioner the respondent which was believed as truthful as well as the supporting evidence of Athumani Kindumbo (PW.1) which amply proved the petitioner's claim that the marriage had irreparably broken down.  Apart from this, it is also clearly shown on record that as the proceedings were going on before the Primary Court, because of the Appellant's threats to kill the Respondent, the court ordered the Respondent to stay with her father and at the same time, Appellant was warned not to repeat such behaviour.  This is yet another piece of evidence which fully supports petitioner/Respondent's claim against the cruel behaviour of the Appellant. The  Appellant's conduct of not only beating but also of undressing her infront of other people in general and particularly her father-in-law was no doubt a most embarrassing and distressing act of cruelty which inflicted considerable physical and mental torture on the Respondent.

From such evidence as a whole, and what I have heard from the parties themselves at the hearing of the appeal,  E  the Respondent who is strongly objecting to live together with the Appellant and cannot be compelled to do so by court proceedings, I am satisfied that the learned District Magistrate' decision was justified. In the event, the appeal is dismissed with costs.