20020913 TZHC Dar es Salaam

,; I ·. IN T:U:B HIGH COURT OF TAN~IA ·: (DAR ES .SALAAM DISTRICT RmLS'mY) 'i Jl,T DAR ES SALAAM , MA.TRD10NIAL CAUSE NO. 13 PF 2001 SALUM SI\DRUDIN JAMAL DAMJ;I •••••••••••••••••APPLICA.NT versus 1 1 ,, i . ~· ..... ), MRS. TWAJOUDOULA. &\.LIM DAMJI. •• ••••••• ~ ••• RESPONDENT ;·:4' ~1 ,'; I\, • ~1' JUDGMENT KYANDO, J: This petition by SALIM SADRUDIN J¾MAL DAMJI, the husband and -'?' /+, petitioner for the relief that his marriage to TWAJOUDOUL SALIM DAIDI, :. /' the wife a?l;d respondent, solemonised on:1 6th September, 1986, at '' t. I' ,1 Vancouver British Colombiai Canada, be !dissolved. The proceedings / 1\ ·: are SC~~• This is because the Respondent, who was duly served with.,a·copy II , • of the petition, failed to appear for the hearing nor has she filed 'on I Ii answer to the petition. I :1 ,, The petitioner is represented by Mr. Kesaria~ learned Advocate. :1 .1 Recording to the petition and the ;evidence given by the petitioner in I • court, the parties• marriage is blessed with two issues, namely Omar Salim .I .. . Damji a son aged twelve (12) y~ars) and: Nadia Salim Damji. 1 ~ dtiwghter 1 aged nine (9) yearso They both like with their mother, the respondent, in Vancouver~ :lne petitioner is bo·:, ..~ domiciled in Tanzania and is a 1' citizen of this country. He is also a ~esident of Tanzania. In terms it of S-71'of the law of Marriage ,Ar,tj 19?1 1 therefore this court has jurisdiction to entertain the petition-:i:; It is necessary to make this point because, as shown above, the marriage was contracted outside the country 11 and also the respondent resides abroad.,, . . I ' . There is only one ground upon which according to the law of of this country, a mru::,riage ~an be dissolv~ by a court of law. The ground is brell down of ~riapie and section 108 (d) of the Ie.w of Marriage Act providess- 1'108. It shall be the duty of a court hearing a petition I\ for a decree of- - • - - - - .,i. difflrce-e---- (a)- ,u_u_ _ _ _ JL II {b)...---------~--~-~---- . 1 ( C'!) A ■ . __.,......__........,___,_..~ (d) in the case of a petition for divoroe 1 where the I court is satified that the marriage has broken down ~£...9..9)1§.ide:i:_ w~_t]l.er the b,£.eakdorm of the marriage_ iis irr~~b'.!&_ ( My lln;derlining) 'I·· I •••• /2. - 2 - Evidence to prove that a marriage has broken down may include adultery commited by the respondent specially where it pasits exucal perversion on the part of the respondent; cruelty, whether mental or physical, implicted by the respondent on the pe.titioner or on the children of the man-iage, wilful neglect on the respondent's part wilful desertion of the petitioner by the respondent for at that three years, etc (see Section 10? (2) of t::1e law of Marriage Ae.t.) In the present case.the petitioner has set out the following in the petition and his evidence in court as proof that his marriage to the respondent has b:eoken down:- trThe said marriage between the parties to this cause has broken down for 'bhe following reasons :- (a) The marriage J.eterlorated and this is because the respondent was an irresponsible wife and a manipulative person and she had become a drunkard. (b) The Respondent has wilfully·deserted the petitioner and has already been granted custody . of the children. and has already filed for refugee status in the British Columbia making her intention of not returning to Tanzania very clear. (c) The responden· ·, constant verbal ahd emotional abuse has inflicted upo~1 the Pet:i.ti<'ner mental cruelty. On several occassions the Respor..u.-.mt has referred to t_he Petitioner as a peasant and has told the Petitioner that only dumb and stupid people work :'~:~ butchery. The Respondent I s wilful desertion of the Petitioner has inflicted mental and physical ·abuse on the.petitioner who cannot have a sexual life with the Respondent. (d) The Respondent has subjected the Petitioner to public ridicule. At a dinner party where the petitioner and the Respondent were in attendance, the Respondent had a lot to drink and·started ridiculing the Petitioner in front of the~e friends. The Respondent was discussing with them how discussing with them how late she ·was in her monthly cycle and her f:1:-iends suggested that she could be pregnant. Ber reaction was i 1the last thing I want is Salim 1 s (the petitioner) baby. It would be a nightmare to have his. ohild u She further stated 11 I would have an abortion." Throughout.the evening the Respondent fJirted and three herself all over the host, Mr, Dhamani and 1:his extremely embarrassed the Petitioner. It was sugges-cl'3d that after dinner they would 2. 11. play scrabble .~/3- • .. 3 - . I • I D_ and in front of everyone the ,.~spondent sid that scrable would not be a game for the Petitioner '. p because the Petitioner would not understand the words. ' (e) In the la.~t yeax, of marriage, communication between the Petition~r and the Respondent had deteriorated to the I , point wh~re they ~ommunicated primarily with hand written 1?,0tes ~egarding all matters. ' . (f) The Resp~ndent is guilty of wilful neglect. Despite havfr.~ two male ,staff a cook, and two nannies at home, the 1 ,1 household has been grossly neglected in the last six months, ohr kitchem Gabinets, utensils have been heavily I I . infested ~ith cockro~ches. There have been many occassions where food would be left in the stove, as , ,I • the re·spondent would. have her dinner before the 1 petitioner, came back from work,at 6:00 p.m. and there would be roaches crawling all over it. One occassion, the petitioner 1s:dinner was left in an uncovered frying I pari on the1oooker front 6:)) p.m. ·to 11:00 p.m. The meal I -was infest~d with cockroaches. The Petitioner had to write an arigry note to her as there ._was no other way I to com~ -: ,iJc,ate with her • , . -ti (g) The Respondent· . , .. 1i1·hereabouts on several occassions were ·•"- unknown to the petitioner. t least three times a week she disappeared at night and.would come back in the .1 I ., morning leavi:ig I .the . children behind with the petitioner. mhe never gave any indication of where she was going or with whoni she . was with so that _just, in case there I was an emergency the Petitioner would be able to i contact her. 1, The Petitioner had no idea where she was or what she had been doing. This behaviour by the I Respondent attributed greatly to the, breakdown of ' I trust hence the deterioratfon·of the marriage altogether. ·, (h) The Petitione~ provided for his wife and children a ' confortable life. When the Petitioner realised that I , the Responden~ had no intention of returning to Tanzania, he was devasitated. He had a very good· relation.ship with his children and they were a great part of his li:fe. He feared for what kind of life they 1 lJOuld lead as the Re$pondent had become a very negligent mother and had: no several occassions endangered the .,lives af the children through her cireless behaviom·•· •., J4- i \ Il ., f ~": ,_. :1' _J I ' ... I 4I - ·t The Respondent got an ord€r greating her interim· custody of the chµdren and the Court gave the Petitioner ' a right to reason.sable access to the children. The . l Petitioner had not been represented in Court. The Respondent further to prove her selfishness and total I discregard for the marriage, coritinuallyinade it impossible for the Petitioner to see his children. A petition was 1 filed in court for perslllanent custody of the children and I . this was granted to I the Respondent·and the petitioner was granted permanent lccess to them. The Court recognised the importance of ~he Petitioner's presence in the livedrof I , the children and f:urther ordered that they were· allowed to travel to Dar.es Salaam during their holidays• (i) The Respondent is a self-sustaining woman.' While in Tanzania 1 she worked as a bookkepper at John Burrows and pertners and Aleria Enterprises1in Dar es Salaam and was an Independent . . woman. The Respon~ent at present has already :. p.:ocmssed.. a wcrk pwrnit in the 1 Bt-itish Columbia cleerly showing her I • intention of settling I in the Bt-itish Columbia and. riot returning to join ~er husband, the petitioher. (j) The above fa•·· :s have inflicted mental and or physical cruelty u.pon the petitioner ry t:i.o, Respondent. This (above) is from the PetitioJer's petion which he had adopted in Court, I when giving evidence. 1 I I I . Before me the petitioner has emphassed I ·that the divorce he is seeking is on the ground of desersation. • • He says this is I because • the respondent has no int~tion of returning to Tanzania and has estab;tished herself in British Co.lurnbia. He also states that because of the particulars above he has suffered cruelly ' . at the bent of the respondent, especiaal.y mental cruelly. · . . I As shown already for desertation to be evidence breakdown of marriage iv ' to the deEersation, must have lasted for at least three yea:rs Refere the date I ' ' of presention of the petition for diverse. In this case the petitioner states in paragraph 7 of the petition that the respondent deserted him 11 since July, I 2000. n The petition was presented on 14th , December, 2001, just abou'.f) a year and a half from the time of the desertion complained of. · For this ground then, I of desertion, the petition was present~d_prematurely and I will not consider it in dete~ng this petition. I have carefUlly e:,camined and conJidered the other evidence in the case As shown already, this evidence is uncontroverted I accept it here and find :it to be truthful. On the basis of it i find then the petitioner has truly • •• /5- ;- ... ... 5 - suffered mental cruelty - inflicte upon him by the respondent. I am also satisfied that on this evid~nce the marriage betwee~ the parties has bro~en down and has broken down irreparably I grant this petition therefore and· disaolve their (the parties) marriage . as prayed I make no order as to costs. Sgd: L. A. A. KYANOO JUDGE Delivered this 13th day of September, 200~ at Dar es Salaam 1 in the presence of Mt-. Johnson', Advocate, who holds the brief of Mr. Kesaria for the petitioner and in the abeenoa of the respondent. Sgd: L. A'. A. KYANDO -- JUIXiE. ,,.,..,.. I ce:r-tify that, this is a. ·:0 copy of the original.