whether a spouse who is a wrongdoer in marriage can petition for Marriage Divorce

ATHANAS MAKUNGWA v DARINI HASSANI 1983 TLR 132 (HC)

Family Law - Divorce - Irreparable breakdown of Marriage - Petition founded exclusively on petitioner's wrong-doing - Whether divorce decree should be granted (s 107 (1) (a) of the Law of Marriage Act, 1971).  

Family Law - Divorce petition - Requirement of reference to Conciliation Board - Whether a mere letter suffices as reference - S. 101 of the Law of Marriage Act, 1971.

This is an appeal by Athanas Makungwa, the appellant in this appeal, against the judgment of the District Court at Kisutu in which the learned District magistrate reversed the judgment of Kinondoni Primary Court and granted divorce to Darini Hassani the respondent in this appeal.

The Primary Court at Kinondoni heard a petition for divorce brought by the respondent against the appellant. The evidence adduced in support of the petition was that the appellant told the respondent that he was tired of her and that he no longer enjoyed sex life with her and he therefore wanted his dowry back. Then the appellant wrote what is commonly known as "talak" to signify that he had no intention of living with the respondent. This "talak" was produced in the trial court as exhibit 1. Then the respondent filed this suit.

The appellant on the other hand said in the trial court that he wrote exhibit 1 after the respondent had insisted that she get a "talak" from him or else she would stab him with a knife which she had. Moreover the respondent used to sleep outside the matrimonial home with other men. Also the respondent's mother had objected to their marriage from the beginning and the respondent used to tell him that their marriage could not go on.

The Primary Court dismissed the petition on the grounds that there was no reference to the Conciliation Board prior to the filing of the suit. On appeal to the District Court, the District Court found that the marriage between the parties had broken down irreparably and that exhibit 3 in the trial court was a document from the Conciliation Board showing that the matter had been referred to them.  

The main issues on appeal are whether the marriage has broken down irreparably and whether the matter was referred to the Conciliation Board prior to the filing of the petition for divorce in the Primary Court. As to the 1st issue, I have no difficulty in agreeing with the District Court that this marriage has irreparably broken down. There appears to be no more love left between the parties and even the appellant  A  has indicated that he wants his dowry back. But from the evidence which has been adduced, no real grounds of divorce have been proved by the respondent. The respondent did not in her evidence prove any matrimonial offence in particular or in general against the appellant. On the contrary, the matrimonial offence which appears to  B  have been referred to in this case is said to have been committed by the respondent. The appellant in his evidence alleged that the respondent was sleeping out with other men. Also the respondent is alleged to be quarrelsome. All these allegations were not denied by the respondent. It would appear then that the petition is founded exclusively  C  on the respondent's wrongdoing, the respondent here being the petitioner in the trial court. By virtue of section 107 (1) (a) of the Law of Marriage Act the court is precluded from granting divorce in a situation where the petition is founded exclusively on the (petitioner's) respondent's own wrongdoing. I cannot see any special reason for directing  D  that divorce decree be granted notwithstanding that the respondent is the only wrongdoer. I therefore hold that the District Court should have refused to grant a decree of divorce in this case.

I will now deal with the second issue. This is whether there was a reference to the  E  Conciliation Board in terms of section 101 of the Law of Marriage Act prior to the filing of the petition for divorce. Section 101 of the Act provides thus:

No person shall petition for divorce unless he or she has first referred the matrimonial difficulty to a Board and the board has certified that it has failed to reconcile the parties.

In this case there was exhibit 3 which is letter from the Secretary of Zone No 6  Makurumla ward to the Chairman, Conciliation Board requesting the said Chairman to give a letter to the respondent Darini Hassan to enable her to file a divorce suit in Court. This letter goes on to say that the Zonal Conciliation Board is tired of reconciling the parties. The question is whether this letter exhibit 3 is a certificate from a Board in accordance with the provisions of section 101 of the Law of Marriage Act. I think not. This is because the said letter is of general observation. Either one or both parties used to go to the Board for reconciliation. It is not clear from the letter whether both parties went before the board and the board failed to reconcile them. Furthermore, the letter is  appealing to another board to issue a letter to the petitioner to take to court. This letter cannot be said to be a certificate of the Board directed to the Primary Court expressing its inability to reconcile the parties. I therefore differ from the finding of the District Court and hold that this letter (exhibit 3) is not a certificate from the Board within the meaning of s. 101 of the act. I uphold the finding of the trial Court that there was no reference to a Board prior to the filing of the petition for a decree of divorce. The petition therefore was  incompetent and could not be entertained by the court.

For the above reasons as disclosed in dealing with the two issues, I allow this appeal. I do declare that the marriage between the parties still subsists. I make no order as to costs.