19931202 TZHC Dar es Salaam

,. IN THE HIGH COURT OF TANZANIA AT DAR ES SAL.b.AM ~-~·-,..........._. ·"·" PC CIVIL APPEAL NO.104 OF 1993 (l~om the decision of the Distric~ Court of ~emeke District at Kivukoni Front) {:)niQi.uil ~~1fd.ilAppeal No. 62 of 19,,2 ' ;; Fro~ Civil Case No. 67 of 1991 of the T~meke · Primar__y _Court ,, ZAINABU YUSUFU MAHBA • o • • • a e o • o • APPELLANT versus (-'ALLI A. LILACHO • o • o • • o o o & o o o e o·• RESPONJ)ENT JlJI)GMENT J\'1ACKANJA, J •. The appellant petitioned successfully for divorce before the Temeke Primary Court, Temeke Districte The original case arose from alleged matrimonial offences which, according "lo the appellant/p~titioner, had led to the marriage breaking down irreparably. She allegeq. before the trial court that the respondent was illtreating her by denying her necessary provisions of life; he frequently assaulted her without cause and that as a result of those assaults she ha reported the incidents to the Police. She later withdrew the chargese All this was not denied and the trial Court found ~he allegations established. On the other hand the respondent testified that the appellant had denied him conjugal rights con~in~ally for th.ree ye~rs; that she is truant ~ni waywar.t ·to the extent of having several extra-marital partners; that she is a frequent right-mover who, once, was beaten •••.• /2 2 up and left naked. All these allegations were also found proved and that there was no more love between the spo~es~· This is evidence of a broken marriage~ The decision of the trial court that that marriage be dissolved was, in the circumstances, sound and there was ample evidence to support it. The respondent was 1_ however disatisfied;, And, s_o; he appealed before the District Court at Temekeo The learned District Magistrate observed, quite correctly 1 that court8 of law have a duty to investigate and decide on the evidence before them whether or not the marriage in question has broken down irreparably before annulling it-•. If the learned trial magistrate had addressed his mind correctly . on the ills which afficted this unfortunate asso,iation he would not have faulted the decision of the trial Court~ For as I have said, there was sufficient evidence which established an acrimonious relationship between the spouses which is not aonducive to a healthy matrimony .. It has come to the notice of this Court that both courts below did not consider the issue of custody of the minor children of the marriage. The trial court should ~ear the partie~ and make orders which ·are appropriate in the circumstances~ For the reasons which I have given the appeal is allowed. The decision of the District Court and the order for separation which were made in its appellate jurisdiction are set aside.- The judgment of the trial court is restor~d. The appellant shall have the costs. Delivered. ;J..i/ • /·•/ ,· ~1~~iM·~·--:c-~:jA-· ----~/ c~. JUDGE 2/12/1993 Appellant: Present in person Respondent: Absent •.