19760524 TZHC Mwanza

IN ThE 1iIGk COUhT 'I iiZhIL ....L (Pa) CIVIL PEL NO. 232OF..1975. 4 From the ecision ct of the, district Court of Tfl'im.e at Tarime in aiv.ii Appeal No, 60 of 973 BeoreT,B, Mutakyawa, Esq., District Magistate, and Kiiosi Primary Ccurt Civil Case No.49 of 1973). PM0NILA JILFhD OKORE ......... .,. ., .. LPPELLANT Versus - rw zAcHJthIAciAcHA • • .......'• • . . . . . .. R'SP0NDhNT JUL GMhIT Subject: Divorce0 KATITI, J.: . . The appel1ant successfully filed a suit, in Kinesi Primary Court, in Tarime fistrict, seeking dissolution of marriage. The Primary Court granted divorce, and further went out of its way, considered and adjudicated upon paternity of four children of the marriage and a refund of bride wealth. The husband aggrieved ot:uht and purported to apea1 to the District Court, which purperieatQ exrciseappul1ote jurisdiction and Oonfirmed the decision of tr±e 'iowr court In the first place, what emLgcs out of this record, is d stionof..jurd.icionby the District Couz.t,l to entertain this appeal s The District Court aefinately haó no;p.e1iae. jurisdiction,tq entertain the.. appeal in these proceedings 5.ion 80 of the Marriage Act 197Fàsarnei&ed by Act No.23/1973— the Witten Laws (Miscellaneous Ariendments)'1973, makes it, un amLiguously clëdr, that any person aggrieved by a decisirn or order of a curt of ,a r.esident Magistrate, District Magistrate or a Primary Court in matrimonial proceedings, may appeal th the High Court. is divorce proceedings fall under Part VI of the Marriage Act 1971 and are obviously matrimonial proceedings within the defination of the same, under Section 2 of the Marriage Act, the District Court was obviously incompetent to entertain the said proceedings on appeal. With the above solved, it is noted on the record, that the primary Court ordered refund of part bride wealth by the wife's father. This was an incompetant thig to do. I say this because while it is cinceded that bride wealth, is paid by the bride groom to the father or to his legal representativo, an order for refunding the same cannot be made aganst him, unless he is a party thereto. This means that the suit for the refunding of bride wealth shotld directly be brought against the wife's parents or the parent's legal representative and not the wife. In this case th e pd.er as regards the payment of dowry or bride price by the parents, whonot a party to the proceedings, was also incompetent. Similary the lower courts declaration that children were that of the husband was uncalled for, as this waz never any of the party's prayer at all. The matter arose incidentally and no proper evidence for the just decision in the same was adduce. Further more as there was no: dispute as to the parterity of the said kidsI cannot ee how the court below, could adjudicate thereon. The crderZrespect of the same:. is therefore set aside and if the parties consiaer it ciesitable to contest the question of custody they, are at liberty so to do. With the above said, and the question of juiisdiction solved, .1 shall deal with the appe1 as theu&h it is by the husband and direct to the High Court. The husband appears to have been at pains t0 show he still loved his wife. He wants the court, to believe that the marriage.has not irrepetably broken down. The parties, were married under Christian rites in 1966 and up to the filing cf the suit, they already hadfour children, the youngest being seven months 1d.. As rightly found by the lower court, and. as evidentially established, the marria.o was punctuated with violence, at the instance of the husband, 2 Violence piled upon violence, with intermitent short lived spells of reconciliation. ThEr last assault was the most important for it appears to have cuvinced the responuont that her life was incted in dnnger After she had escaped assauitod.,from the matrimonial home And .ruE fôr her life., sae climbed a tree, but with the anger of a rhinbcerous the appellant cut down the tree, bringing the respondent down with the tree 0 She sufferei bodily injuryand was admitted in the Hosital. 1ith such evidence, the Primary Court, would not have ruled othorie*hut that the marriage had broken down irroperably. And if seeing is believing at all, the responciant who ape cci before me, was swearing not to go back, The Oivorcc was in the circumstances justifieL and there is no reason to disturb the judgment given. The appeal is tLlerL±,r. .1smied with cot. As pointed out heroin above, if the husband wants a refund of bridewealth he has to aue the right party, and if the partie think it necessary to contenst custody of children, they arhbually at liberty.. ..;.. M KA NZA HIGH COUAT. E. W. EiTITI 24TH MAY, 1976. . . S.