19770802 TZHC Musoma

IN THE HIGH COJRT OF TANZANIA AT NWANZA. PC) CIViL LPELL NO0 216, OF 1975 (From thL decision of the District Court of Musma at Musemt in Cvil ippu1 No 148 ..óf 1974) Before J., L0 MBONEO, Esq DISTRICT M/GISTRAkTE Original Kia.gata Primary Court Civil Case No 8 of 1974) DANIEL KIRJLTOO 0000000400000 0000000e.fr •t 00000'000000 • •* øeo .1PPELLaJtNT vers us = , '. . . '.' . . •.: CY PRIAN VICTOR.. 0' 0 - o 00.0 0 00 0.0 0000 0 0 0 0 0 0 0 000.00 • • 0 0 0 0 •0 0 0 0 • 0.00 .RE.SPONDENT -CoO- - JUDGMENT MFALIIJA. J. The respondent Cyprian Viçtor. n behalf If his son sued the appel- lant t.' recover the bride price ánVounting to 46 head of cattle paid when his son married the app1la4's daughter in 1966. In the d5,vorce pr•ceedings (Kiagata Primary Court Civil Case No. 38/74) son did not give any reason why he demanded his marriage to the appellant's daughter to be dissolved. However it appears that the Court ordered the dissolution of this marriage on the admission of the appellant's daughter. Even then the Court proceeded to dissolve this marriage withou€ a certif i- cate from the conciliatory Board. Accrdingly the order for dissolution was irregular. But when the respondent opened this case against the appel- lant he tried to give reasons as to why his son's marriage to the appellant's daughter failed, he said that this marriage failed because it was not con- summated on account of the appellant's daughter's defrmity in her repro- ductive organ. This allegation was denied by the appellant but the trial Court accepted this evidence and ruled that the marriage of the resp.ndent's son to the appellant's' daughter was br,ken up on account of the wife's deformity and that therefore she was wholly to blame for the break-ut if the marriage. As a result the trial Court ordered full refund of the bride price as prayed. . . On appeal to the district Court the decision of the primary Court was affirmed, the district Magistrate holding that this marriage broke up due t•' the girl's deformity and that therefore the appellant should refund the bride price in full. But having gone through the record I think that this was contrary to the evidence which was before the Court. There was first of all the medical ev1dece. In the course of the appeal proceedIngs inLe district Court, the district Magistrate ordered a medical report' to be Dh •btained in respect of. the physiological condition of the wife. In this letter. the Magistrate asked the Doctor to examine the wife and say whether the girl's reproductive organ had any deformity at any time and whether the girl had had an operation at any time t•' correct this deformity. The wife was sent to hospital and examined by a medical Officer who wrote back and said the girl's vagina had always been normal and had no deformity.. He also said that there is no indication that she had undergone an operation at any time to correct the deformity. In the light of this evidence .the Magistrate was not justified in finding that the girl could have. .under- gone an operation to correct a deformity in her vagina. There wa no evidence before him indicating that the girl had at. any time a defective vagina which made it impossibl.e for her to consummaie her marriage, to the resp.ndent's son. The position then as revealed by the state of the evidence is that nobody knows why the respondent's son instituted divorce proceed- ings in the primary Court against the appellant'.s daughter.. He did ot state any reason in the petitien nor did he state any reason at the trial. His wife's alleged agreement to have the marriage dissolved did notirl any way assist her husband's case for dissolving their marriage As a whole the respondent did not prove that his son's marriage to the appellant's daughter was not consummated on account of an alleged defect in the 2