19801107 TZHC Musoma

IN TKE HIGH COUR OP TPJZANIIL AT MUSOMa. APPELLATE JURISDICTION (o) C IVIL APPEAL NO • 161 OP 1979 (Prom the decision of the District Court of Thrithe District at Tariine in Civil Appeal No.97 of 1977 - Before: S. azai'o, Es1., District Magistrate and Original Nyaburongo Primary Court Civil Case No 27/1977 REGINA ADHIAI/O ss:::::;::s::::::::::::t1:stst;i:s::a::; APPELLANT VERSUS ODEI.A M.URA ss:2ss;:::s::s:s::2::::::,s:gs:2::::::s:;:::: RESPOJDENT JU iD G B M E N T MALIL J.:. This is yet aiiother of those caqes in'ro3vin bustod fchi1dren under Rule 175 of the Customary Iaw c bLa±'atibti) Order 1930 Up to 1964 the parties to this appeal were living together as man and wife. In that year the wife the appellant left the respondent and went to live with another man with whom she is living to—date' At the time of her leaving there was One child of the marriage the girl Owogo. Between 1964 and now, the appellant has given birth to other children by her new man The exact number of children is in dispute 1 four according to the appellant but six according to the respondent; Be that as it may, the respondent filed these proceedings in the Primary Court at Nyaburongo claiming custody of all the children born to the appellant from the time she deserted him ciming that although they were fathered by aman other than himself f he was nevertheless entitled to their custody because they were born to the appellant is stillhis wife. These arguments won favour in both the Primary Court and the District Court They held that as the children were born in wedlock they belonged to the respondent as father under Rule 175. This is a second appeal against these decisions The appellant argued that the respondent is only entitled to the child Owogo who was born in wedlock f but that he cannot claim the rest of the children because they were fathered by someone else the man with whom she is currently living; As I held in another case MUNGASZO s/o MUNCH.&RI & ANOH, VS. MUSE WEREMO 1978 IT n 6 and Maganga J in RICHARD MAPESA VS • RASHID BWNA 1978 IT no4, this Rule 175 has nothing to do with illegitimate - chilren—.as all the children born to the appellant after 1964 are; As indicated in these two casesi 6he Rule is self explanatory. Inote that there has been some attempt to justify earlier decisions of this Court on the ground that they are a logical expression of the rtxle that the legitimacy of children is tied up with the payment Of bride- wealth by the legal husband This statement is surprising, fo payment of bride—wealth is only evidence of the existence of avalid marriage under customary law and therefore as a corollary the = legitimacy of the children born within such a union It has npthing to do with the legitimation of children fathered by a man other than the husband In any event assuming both interpretations are possft2e, then the one which gives greater security to women and particularly children's welfare should be pre±'ered to the one which turn wonen into mere breeding machines for the so called legal husband who as jn.this - 0 - 2 case may never have slept with his wife for 16 years The orders of the courts below have the effect of wrnch±rig these children away from their natural parents to be trans1a±itCd.. to a strange old man whom they have never seen since they were bn, and all this in the name of a rule which iC subject to variots nterpretatio. It could ribrer have beeli nieait to produôe br tear asiiriaer natural affections between children and their pard.ts or these.reaso116 the decisions of the lower ooUts cannot be supported. he childr6ft bOrn to the appe1lnt aftéx 1964 when she left the respondent are illegitnate beCause they were bbrn Outside wedlock and therefore belong to their mother the appellant who will have custody of all of them except the girl Owogo who belongs to her father the respondent. Accordingly this appeal is allowed and the judgements and orders of. the Prirnry tourt and the District Court are set aside. The appellant willhae her costs of this appeal. ' MUSOLU L. MFALIL 7Ta NOVEER,l9O. JUDGE 4.