breackmans so fidelis christian vs roselina kayenzile christiani 2023 tzhc 16376 27 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA CIVIL APPEAL 21 OF 2022 (Arising from Juvenile Misc. civil Application No 2 of2022 in the District Court of Bunda at Bunda) BREACKMANS S/O FIDELIS @ CHRISTIAN..................................... APPELLANT VERSUS ROSELINA D/O KAYENZILE @ CHRISTIAN................................... RESPONDENT JUDGMENT 23rd & 27th March, 2023 F. H. Mahimbali, J:. This appeal concerns the trial court's order (Juvenile court) which ordered the father (appellant) who earns a net monthly salary of 600,000/= to give as maintenance costs of his family (wife and their three children) at a tune of 300,000/= monthly. The appellant has been aggrieved by that decision now challenges it by way of appeal to this court that the trial erred in law and fact to take into cognizance of the appellant's health condition in awarding the maintenance order of TZS: 300,000/= per month. 1 The brief facts behind this appeal may be put this way. The appellant and the respondent are married couples since 2005 who are blessed with three issues, who are below 18 namely: Kelvin Talemwa Christian (15 years), Keneth Atamba Christaian (11 years old) and Anaritha Anaweza Christian (6 years). The said couples have been living in harmony all the time since their marriage. Things turned bitter in 2017 when the husband (appellant) became sick (paralyzed). In 2021, the respondent (wife), for unknown reasons deserted the husband and established her own residence living with the children. The appellant is an employee with the District Council as clinical officer with a net income of 600,000/= per month. The respondent on the other hand is a mere house wife now engaged in small businesses popularly known as enterpreneurship with an average income of 15,000/= per day. So far, there is neither divorce or separation decree issued nor pending such an application in a court of law. The issue for consideration now is whether the maintenance order costs of 300,000/= by the trial 2 Juvenile court against the appellant for the maintenance of his wife and the three children is excessive considering the circumstance of this case or justifiable in any cause. I have thoroughly given digest the parties' submission for and against the application. I have also perused the proceedings at the trial court to get the justification of the court's order. According to law, a person below the age of 18 years, is a child (section 4 of the law of the Child Act, Cap, 13 R. E 2019). The law then is, in all actions concerning children whether undertaken by Public or Private Social Welfare Institutions, Court or any administration bodies, there shall be a primary consideration of the best interests of a child. As who has the legal duty to maintain a child as per law, that is the primary responsibility of any parent, guardian or any other person having custody of a child to maintain that child. In particular, the maintenance duty to the child should aim at providing the child right to food, shelter, clothing, medical care, education and guidance, liberty, play and leisure (see section 8 of the Law of the Child Act). 3 In any means, unless otherwise, depending on the circumstances of each case, the responsibility of maintaining a child is the primary responsibility of every parent. By parent, that means father and mother. In other situations, then, the duty extends to guardian or any other person having a custody of a child. In the current case, I am in cognizance of the social inquiry report prepared by the social welfare officer as received by the trial court in which it was dully considered by it in wholesome. I have asked myself whether the said application and the corresponding report by the Social Welfare office was necessary in the circumstance of this case? However, I have taken digest of the health status of the appellant who is paralytic and earns the fixed income of 600,000/= per month. This court sees that situation with the third eye. Since the respondent is the one who abandoned the appellant for reasons best known to her, leaving him unaided; she being healthy and able bodied must also be aware that the duty to maintain children is not solely the father's duty but rather of both parents (see section 8 and 9 of the Law of the Child Act). As the appellant is sick that much, he is in law considered as an impaired person and worse enough deserted. In the circumstances, he has to maintain himself first by 4 the use of the same salary. He shouldn't be condemned to the deterioration of his health beyond worse. It should be the mother's duty as well (respondent in this matter) to take charge of full responsibility of herself and the children as per her decision. I say so because in a full consideration of this case, there is no clear basis as to why she deserted her home and then made her mind for this application to the trial court. Of course, I am aware that when making the maintenance orders, the court as far as the right of the child is of paramount consideration, should consider the following matters: Income and wealth of both parents, impairment capacity, the financial responsibility of the person charged with the maintenance order, the costs (see section 44 of the Law of the Child Act). Nevertheless, in the consideration of the current case, I am of the considered view that the charged amount of 300,000/= not only is so high, but unreasonable and unjustifiable to the appellant. The appellant being deserted and sick to that much, he needs accommodation, medication, food and assistance. The respondent being healthy decides upon that decision has to take full charge of her life and of the children as well. Any choice has consequences. 5 In the circumstances of this case, where there is no decree of divorce or separation granted and that there is nothing pending in court in respect of the such application, it was unjustifiable for the trial court to consider such an application. The application under rule 83(1) of the Law of the Child Act (Juvenile Court Procedures), GN 182 of 2016 strictly cannot be applied to married couples in the absence of divorce decree or separation. Where a spouse just vacates matrimonial home and establishes her own "home", unless there is a pending application for divorce or separation before a court of law, the said rule cannot be considered as her refuge for such a frivolous application. In the circumstances of this case, the order of compensation issued by the trial court for the respondent can be considered as to benefit the respondent at the detriment of the appellant unreasonably and unnecessarily. As per the circumstances of this case, it should not be used at the detriment of the appellant. The application of the maintenance order for a married couples cannot be applied or made if there is no decree of divorce or separation issued by the court or such pending application in court. To entertain such applications, will make chaos to the welfare of the family. 6 That said, the appeal is allowed, the order for maintenance costs issued by the trial court is hereby quashed and set aside. DAT£t5 at MlMOMA this 27th day of March, 2023. F. H. Mahimbali Court: Judgment delivered this 27th day of March 2023 in the presence of Mr. Godfrey Muroba learned advocate and the respondent being in person. Right of Appeal fully explained to any aggrieved party. F. H. Mahimbali JUDGE 7