polylculp kahoho vs anyesi jeradi 1982 tzhc 34 25 april 1982

IN THE HIGH U O b H T O F TAfa-__....LA AT MWAN2A (PC) MATRo CIVIL APPEAL N0„ 34 OF 1980 (From the decision of the Primary Court of Rulenge at Ngara in Civil case No, 3 of 1977 BEFORE: 0* RUHUGU, ESQ„, P. Co MAGISTRATE) POLYLCULP KAHOHO ....... ooo„....... ........ o*. APPELLANT versus ANYESI JERADI .................................. RESPONDENT SU3JECT: Divorce*

JUDGMENT KATITI, J . , - Polylcup Kahoho the appellant and Anyesi Gerald, the respondent, having on 12/12/1967 bonded themselves in marriage, the said marriage, stayed its course up to 1975, when the marriage cracked and witnessed the exit of the respondent from the matrimo­ nial home* The respondent claimed before, the Primary Court, that her marriage life was punctuated with ordeals of assaults, and finally accusation by the appellant, that, she had stolen . his shs. 200/-. While the respondent accused the appellant of incapaci ty to beget a child, and boasting she had finally got a child from else where, the appellant insisted the child was his. The Primary Court was unanimous, that the marriage had irreperably broken down, but held, that, the child was of the marriage, and therefore, the appellant was the father. The Primary Court ordered that, the respondent maintain custody of the child, but the appellant pay shs0 50/- per month as main­ tenance for the child, and the appellant be refunded half the bride price. The appellant has appealed against the above three aspects. I think as for the marriage, I hold the Primary Courts view, that it cannot be rejuvenated, as the respondent first cannot countenance any cohabitation with the appellant, secondly as the appellant did point out, the respondent is already reputedly cohabiting with another man, apparently not far away. As

for the child!s custody, the said child having been born in 1977, and therefore still very young, the mother is a better agent for its upkeep and welfare. This is without prejudice, to the apoellant applying for custody, as and when age and child welfare, permit. As for maintenance of shs. 50/- per month, the appellant asserts ho is too poor to do that. I think, here the appellant is contradicting himself. If he was prepared to have the custody of the child, he must have had in mind, provisions for its maintenance. And whether the child is with him, or its mother, its needs maintenance, his responsibility so demands and in any case the sum is just token. This order shall therefore remain uninterferred with. As for bride price, this is an area, that concerns, the ap ellant’s father-in-law, and not the respondent, and the court was therefore wrong to adjudicate on the same in these proceedings, as the father-in-law was not a party to the proceedings, and could not condemned unheard. The order on bride-price is therefore set aside with advise, that, the appellant pursue the same in different proceedings* In conclusion, but for the above setting aside of the order, the appeal is otherwise dismissed with costs. JGH COURT IH/AI'IZA W. KATITI th Aprils 19G2 ; , JUDGE