19881115 TZHC Dar es Salaam

~~ IN TEE HIGH COlm.T OF TAHZI(NIA AT DAR ES Sl1LAfJ1 (PC) CIVIL 1.PPEl'J., NO. 4D OF. 1987 (From the Decision of the District Cou:rt IlaJ.a in Civil Appeal No. 2, of 1907) ( Original Primary Court Buguruni Civil Case No .. 86 of 1986) SALUM OTID1Ui.N ♦• O e 6 e • e I> I .• .• ♦ • t • ~ ♦ f I t t I <I • ♦ t o •..• APPELL/ilJT VERSUS IIADijf.. Sl'U,UM •• ♦ ♦ e e ♦ 9 f t I • e I I e O. I I 6 t • I O I • 0 • ,RESPONDENT JUDGEMENT Mt.IMA • J • The partie~ are husband a.nd wife. They were marri0d under Islamic law. The appeal is against t!ie decision of the district court which ordered the appellant,· Salum J..-Ghuma.ni, to givp ~tio his' wif'e, the respondent, Iladija :;3a.lum, a shaxe in the matrimonial. properties. I shall briefly state the facts as est~blished in the lower courts. The respondent filed a suit at Du.gu.runi Parimar,v Court for her share in -the matrimoi:ri.al properties. The primary court ordered the appellant husband to pey to the re.span.dent shs .. 50,000/r:. •. There was absolutely no evidence as to the value of' the houses which were alleged to be matrii11onial properties. It was not even explained how the primaJzy" court arrived a~ the sum of s.l1s• 50"000/=• Tho district court, in Revision No. 6 of 1986 quashed the proceedings of' ·the primary court and ordered the case to be retried by another prima.ry couxt magistrate.. 1-fuen the suit was retried, the primary co'urt held that as the marriage between the parties was still su.bsiz.-ting - as there was no decree of divorce granfod - the primary court had no power to distribute matrimonial assets. The SLti.t was dismissed• On appeal by the wife, the dis~ct court reversed the'dccision of thE: primary court and ordered the husband to give to the wife a.n unspecified sum as her share in the matrimonial properties. The ic::me is whether a court cro1 order division of matrimonial assets where the marriage between the parties subsists. That is 2. oruoiaJ.. for tho determin3,tio:1 of this ::i,ppcru..,. Admittedly, there has been no pc-ti tion of divorco filed by D..rJ.JT of the parties. The wife told the primary court that her husband, the appellants had issued "·talak" in accordance with Islamic Law a So, she fol t that the ma;rriage had bo<m dissolvedo TJ.10 issuing of' 11 talak" by a husband in a marriage contracted under Isl2l!lic Law does not dissolve the marriage.c 'I"nat is only evidence, under section 107 (3) of' the Law of Marriage Act, ·i;hat the marriage has brolccn do1-mc Since the enactment of the Law of' Ma.-rria, . Act, any marriage, whether 1..mclor Islamic law or ariy other _form o:f marringe~ c2.i1 only be dissolved by a cour·i:; in accordance with the provisions of the Act. Tile pax·~ies in this appeal axe still married to each other. The power of a cour·i:; to order di vision of' matrimonial assets is provided in section 114 (1) of the Law of Marriage Act,. It state0 as followo~ 11-The· court shall have power, when grantil1g or su.1Jsoquen-i; to the grant of a decree o::? separation or di:70rce, to ord.er tho di vision between the parties of any assetn acquired by the:-.1 during the marriage by their joint effortn: or to order the sale of any such assets and -'cho c1ivision between tho parties o:f:' tho proceeds of' sale ., Tho court lms power to order division of' matrimonial assets only "when granting or subsequent to the grant of a decree of' separation or di7orco"• There is no provinion. a11ywh0ro in tho law giV:i.ng power to the court to order division oi' matrimonial assets when tho ma:rriage still subsists._ Tho pri:.ila.ry court quite properly add:ressod i·i;s mind . to this aspect and correct].J" held tha·l; :l t h0d no power to order the division of matrimonial assets between par-ties who in law are ' still married~ The court has power to order· division of matrimonial assets between parties only at the time of r7ru; ;-,-.,::,Y'.)qi.10nt to the BTant of a decree of soparatiol1 or divorce. Tho court has no power to order division of matrimon:i.al assets between parties who in law are husband and wi:fe 4 Tho parties may be living separately, but in law they arc regarded as ma.rriec: to ea.ch other until their marriage is dissolved by tho courti, Tho district court erred in law in ordering division of matrimonial assets between pa:rties whose mm-rbge has not been dissolved~ 0 • 3 For these reasons 1 this appeal is allowed• The decision of the district cou:rt is set aside and that o:f the primary court is restored• w. J. Main.a . JUDGE Dar es Salaam 15th November, 1988 Appellant present Respondent present.