19760421 TZHC Mwanza

IN LHE COURT OF TJNZLNIA

IT PNZ (PC) CIVIL P:PL NO. 246.OF 1973 JD NO. 81 OF 1971 (From the Decision ofbiieDitict.Court of North Mara t Tarirne in Civil iprcai o 212 af 1970 - Before T.L. Mwalusny,sq., Rcident istre Original-Sirar Primary çqrtCriiiol Case No. 98 of 1970) RTO.CH!;CIi.;, . . . . . •.... .JJ'LL.fNT virsus. SYVS ii CHL . * R]?SrONDL'NT CLAI Ntf Dissolu.tiop of marriage and cutody of a child. J UL (1 VN N T. The respondent filed an action in Sir.ari Primary Court, praying for the dissolution of marriage, between him and the appellant, and further prayed' for custody of t1he child - the product of the said marriage. Th Pnizary Court unanimously held, that the mrnia°ge had 'irreperably broken down, the perties no longer seeing eye. to eye 'and granted divorce. The mrel1ent aggrieved, aprralad to the . ssfully and hence her second epeal to this Court. The, District Court had under Section 80 of the marriage i'ct 1971, no jurisdiction I shall dealt it as a direct apea10 The facts ar e straight—forward. The parties went through Kunia Customary marriage on the 9/4/1967 and in 1968, the epae11ant f11 sick, apparenti.y because of the process of pregnancyo Unschooled in anatomy, and uneducated in the use of Hospitals, the respnidcnt thought the remedy lay, in the performance of incantation rituals, for her, at his father- in—law"horne. So he took his wife, the appellant to the appellant's father.

This was done on 11/3/19 68 From this time, to the time of th suit, the parties lived apart As trial court fourd, - the respondent could not get his wif', of the interference by his father—in—law, assisted by her reluctance to go back too. In this direction the evidence is in abundance. Reconciliatory emissaries, were unsuccessfully turned back, and even the e±tempts by the Ward 'xecutive Officer to reconcile the parties were fruitless, the appellant's father being stubbornly adamant. Thus it came to pass, that even the appellant delivered while she was still at her home. From the evidence, considering the time the parties they have been apart, and bearing in irnud, that the passage of time has not made the appellant anxious to go back to the respondent, who has repeatedly sought hr raturn, like the Courts below, I am of the view thtthis man1iage cannot be rejuvinatod, of course the appellants, father being a major instrument of destruction to this marriagee Although the appellants side now appears onsilliatory end disputing responsibiltiy for breaking marriage the evidence is v a ht]-Y against her. This can only be a gesture meant, to ±ore stall, the weight of the hammer, when it comes to refunding of dc.wry. The marriage wasir my view rightly dissolved. Now the question of custod:. There appGax's to be no dispute about the patriyof th chiL in question. The respondent

is obviously the father0 The appellant argues that the respondent should hot be liven custody because he never maintained its J1though t4 Courts below granted custody to res.ndent, they never directed themselves on the interests of the child. This child must hu•e hear bo:rn eomewhere in 1968 and it should now he • ao ahov i ; ers. Thus the intceeat or weLax o ins c1i1J 7 should depend on jts age, for th..cre involved varies ir intensity, dcpjnc nJLi ru ' ell :rtermiec es tn erhe' is The tter o queified for the welfa.e of such a one Under the previsions of 125o) of the moi ct 171 thee ic rct t otner theiee' fai u'aole p:esimrtin that it is :foj the food of on infant be'ow 'the age of seven years to be with or in the custody of its aoher In this case the. child is 8 years a, school age,, no iene:'y :n' 'need of his iothr brsots He is okay The mother single s'.'.ssocptiblc to social hazards,, that may affect the nei S ri:al attiude lia ry 'c-en rnariy another man, making it difficn:.t for this child tc hv access to the father, In these circunstanoss ee.custd va rihtly given to 'the respordent aithoue5• or c1fferent reasons In this event the appc.al is, disrnissed I uake no sad .r' as to costs nainat here -