19801028 TZHC Musoma

!77 IN THE HIGII COURT OP TANZ.cANIA AT MUSOMA A.PPELLA TE JURISDICTION CIVIL APPEAL NOc 68 OP 1979 (From the decision of the District Court of Serengeti at Mugumu in 0iv11 Appeal No, 3 of 1978 Lcoe: R. I. Lukume, Esq., District Magistrate and Original Issen,m Primary Court Civil Case No 51 of 197 MTENG-A KUDEKERI ::::::::;::a::::::::::::::::::::::::: APPELIji.NT VERSUS NYABOT.IKO MliTIKO : :: : : : : : : : z : : : : : : : : : : : : :::::: : : : : : : : : RESPO1DENT 000000 - J U D G E M E N T MPALLIA J.: In the Primary Court a1 Issenye Serengeti District, the respondeni sued the appellant her former husband claiming arrears of maintenance amounting to Shs. 2640/= in respect of their child. She told the trial Court that she married the appellant in 1972 and the child in question was born in 1973. In 1974 they separated and were divorced and that from that time she went to live with her parents along with the child. All this time up to the time she instituted these proceedings the appellant nvsr bothered to bring her anything for the maintenance of their child0 She said that she incurred monthly expenses amounting to Shs 30/= for milk and at one time she had to pay heavily for medical expenses when th? child went down with measles, The appellant on his part disputed these a1legations He said that when the respondent left him and later sought divorce and got it, she went with their child ani forbade him to see the ohi1d She consistently refused to accept any maintenance he sent to the child in form of clothing and money saying and openly supported by her parents that the child was not his. When he thought things were getting out of hand, he went to the Primary Court to demand custody of the child and related cverything Wit4 this background the Primary Court granted him custody of the child and he is still with the chi1d, That it was when the respondent realised she had lost custody of the child through a court order that she filed these proceedings. The Primary Court dismissed her 3uit saying that she cannot now turn round and claim refund of maintenance of their child when she had all along refused to acccpt the sathe on the basis that the child did not belong to the appel1ant She uccessfu1ly appealed to the District Court where the Dirict Magi 4trate held that her earlier refusal to accept maintenance offers from her husband did not in any way diminish his responsibility tomantain his child. However as a pun.tsbnient for her past conduct, the Magistrate ordered a split in the maintenance costs so thatI each should bear half the cost anounting to Sh 1320/= This the amount the appellant was ordered to pay the respondent. Ainst this decision the appellant appealed / 41 - 2 - First of all even if the respondent had made out a case to be refunded what she allegedly incurred in mantaining the child, I do not think she proved the expenditure of the sun of Shs. 2640/= which she claimed. The District IJagistrate in awarding this sum did not attempt to find out how the reèpondent had arrived at this figure Secondly it is true that a father has a strict duty to mantain his children indeed section 129 of the law of ]Larriage Act is very clear s but all the evidence points to the fact that the appellant's efforts to fulfill his obligations under this section were frustrated by the respondent in her greed tô 'deprive him of the ohild' She cannot now turn round and ask the appellant, to carry the burden which she and her parents had voluntarily decided to carry I cannot see any fairness in the order of the District Court making the respondent benefit from her own selfish conduct In any event even mothers have a duty to mantain their children more so whbre as here they voluntarily take the whole burden For these reasois, I am satisfied that the respondent did not make out a ease to be reimbursed anything by the appellant This appeal suc9esead?C',is ' ..-. n allowed. The .judgement and orders of the District Cçart'are setasie and those of the Primary Court restored. ( I1ItJS0Ma . L. MFALIIA 2STH0CTOflE, l98O... JUDGE