19761030 TZHC Mwanza

C IN THB hlGii COUif OF NhNIA T (flc) CIVIL. hPPL NO. .311 OF 1975 (Frorn the bisiori of the Urban Primary Court of hinyanga at hinye.na in Civil Cae 40 of 1975 - Before N.h 0 I1.AKCBOd/Ot.JD1....'S...'. ...... - versus • • .......... a •. o., , • • • • • . .. • . ? ONL5.NT - bXDI s/o NY.NDa. • . . . . , UBJtJCT Divorce. . ... KTITI i__• T Mvaobo u/a oadi the apel1ant h.re, unaccoseful1y filed a aivorce suit in ahinyanga Urban Primary Court. The 2rimary Court heldi that as the ape11ant) was the one who had refusea to go back to her husband's home, despite efforts by the rsbpa.nd6ntj she could not be given uivorceo damant1y, the appellant haa;-appeulau to this court sgainst...sucha. - decision. . . - ...... ........... The parties were mos1ems and seem to have gone tnrough iduslim karriege rites in 197 0 4 It apeare that after a year of marringej the appellant went back hems whre 6h e stayed for a lonb time, 1thougii the appellant, told the court y that at no time did the rospondent go to see her, her own witnesas teatifigh, thea he. tried, to recJl her home in vain, The respondent did not testify btforc the Jourto lie in fact abnaonecL the whole case, after the closure of the petitioner's case so tn-ct in giving judgment, the triel court virtauliy relica xi the petitioner's evcionoe, although the outcome was not in her favour0 Before me she urged., that on the evidence she

adauceaj she should have been given a divorce. The respondent, though prcsanti did not seem interested and in fact he had nothing to add. The question is whether this marriage has irreperebly founasrod. iil'though the parties sent through moslem form of marriage, and as the respondent failea to eye.r befor th.. rcorisaliation Bord.,- I ta1e it, that the case must have been nusapuad in the court for jarisulotloil purposes, under seetion 101 3ub—aection (a) of th iiarriagc ct 1971 the respondent having wilfully failee to attnd before the Board. When the uostion of reference ....he Board is maie impossible as sbove the provisions at oub—ection (3)- of noction 107 of the 1.hsrri..go ct 1971 become difficult to apply, for without 3 (b) Certific-te of failure to reconcile by the Board the question of th. aequence of 3 (a) coca not ariee It would follow threfore, that where the rac'iciilietion Board is rndsred in capable of etOin5 its auty, by U.fauit of epoarence by one of the certies,' or where one of the part lea has - .ot apacrocL before it but the Board issues a certificate not withstanding the uofaalt in ae-arence, and yet none of the parties coos a tnin, tint would,- but for the prosisiona of this marriage ot cLISSOI\i5 a "1us'1im mlrriage, - i th court .. oula Cave no basis for the finding that Gha marl lag-a has irreper. bly broleen nown under the pr vielcns of sub—section 3

of section 107 of the nai-riao But does this moan, that unisa any of provisions in a otion 107 (3) ar - iulfilea, no uivo'ce is possi blc-? For instance in 3 (b) the Bords summons iz, ignored., or even whcre despite f.:ilurc to reconcile th., eartlaa, none of the pci'ti eS does an act or thing tat but for LIi provsiana of t1a ea.rrl.ege ct,- would under Islamic i45 diacolve mer ige, woulu one say no aivorca is poscible? -. 40110 --... i I cimit that 107 (3) is 1iIly to o s 2 roo1uu, und MY ne'i 1i- sltive clrifio.tion, butt i]ii1 th. oami, I ctont. think the 1e8i1aturo, eve meant to eoi'ct provisions 107 (1) and (2) from oppiylng to ius1im union hero circamto iou 4,004pd th ol tion of 107 (3) In t ii o cc for instnuo I uunt 5t siij s tin 2 () ci uotion 107 shuMV not apply - siliful nuc1st on tii of tho rub;crluont - ouboot of course to proof on von ( of vubbsciian (2) of ootioii 107 - uscortion of the ptitionr xUnt tor t 1t tr r. r hre the court is stisfiei that it is .iifu1. Considering tho o..ss, I notinu Anw th; w Alunt's Anitudo, she is the one in u silful desortion nct vri r1o, uhu a,guaru impotiont to uisolve the marric. irIs his bn ino n of 970 p p n iter 4.6 75 when she fiiu o tniit. The rusponciunt is uqully dibanchunKu About this murrioge to thu agpd1l,nt, and if I oouid ri his fuot right, that is why he (responctent) did nut von bothur to oy snyting to uphold tht. morisgo. i1l tho sums as th0 uosore sulu thu spp11Lnc is responsible for Hs:: collopse of mrrio. But all the th :go connot be rcjcivinstcci. I therefore allow Or the civoros, sh 'iod to get. Or u)!J5t.1 is allowed. I oruer no costs. a - - HIGHCUUkIT u.. .. KiITI 30Th 0Cf0Bn, 1976 JcJhG