19710303 TZHC Mwanza2
The evidence established that Muga had obtained a divorce from the appellant and was married to the respondent during the relevant period; therefore, the children were not born during the subsistence of marriage between the appellant and Muga and could not be considered his children.
Source-derived case information.
- Citation
- 19710303 TZHC Mwanza2
- Parties
- Appellant: Timotheo Misirilo; Respondent: Itakafu Nyamirunda
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 3 March 1971
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Child Custody, Marriage, Divorce, Parental Rights
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Timotheo Misirilo
Appellant
Itakafu Nyamirunda
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant is entitled to custody of the children as their legal father
- 2 Whether the children were born during the subsistence of marriage between the appellant and Muga
Ratio Decidendi
The evidence established that Muga had obtained a divorce from the appellant and was married to the respondent during the relevant period; therefore, the children were not born during the subsistence of marriage between the appellant and Muga and could not be considered his children.
Court Disposition
appeal dismissed
Orders
- no order as to costs
Full Case Text
Judgment text and source record
1 paragraphs
/ - IN Thh hIGH C0T OF TNZNI T MiThL 4 dflctc Jurisdiction0 (po) CIVIL fPLfL NC073 OF 1970 (heom th(, decision of the Disriot Court of horth Tiers Dictrict at deeime in Civil pp.eo1 iTo 30/of 1 97 0 - Oridinol Civil Case hc.1 of 170 of the hycmisanuoa. 1imry Court.) TIHCTHEo MiSfRWL0 4 1 • • • • , fPPfLLfirT(0ri.'inal Plaintiff) versus TTPiHIFU NYi\IIRUND.T / . . . . . . RESP0NDLNT( Cei[:inal . . ofo.ndat) JUDGMENT. h-HII'TDY. Ag0J0 This is a oecead case involving the disputc of two chiidron hoon by Muga. Th first ese ((PC) Civil Lppeal No0151 of 1966 iIOh.fU FLRUDt v huhL ciw) involved the respondent ef:a±u and the wonc.i. ituga0 Thepriii/cesc involv. a the appe llant ? e1OtCO, ie C1l2.fcd to be the huabaod ci i.uga, and the rescndant .chafu who hac the custody of tho two ciii1cren0 In th. first basc the sigh Court decided th'L on to evidence, MuLca was uaricd to Itakafu and ti:roioru thc. ciidroi of nonage heloneed to /ha:[u as ocr section 179 of the en of i ersons :.:. No.279/1963. In/this case Timothoo said that the 2 chilh an were his on the d.round thc/ iniga was still his wife even wuen sic lived with Makafu for the pears. His case was tie: t because the children OC horn during the/subsistence of iis marriage with iiuga tLf e children an , thcrefere, his. At the time of filing this suit Muga resumed cohabitatioi7! uiih, the app. ilant. • In view of the conflict ing decisions of the two 1cw.r courts, one of which was o/en contrary to thu decision of the tigi.:. Court in the first case bet.:ci hakofu and Muga, I would go in some detail into the evidence led. / Tie cepsl1nt, who was 55 years old at t .a tim this cuit commenced, sie -iii_ i he married Muga in 1945 and t1iat after Tic had lived with hc1 for 10 ycers, the respondent abducted hc.r and lived with her as concbincfon anotho 10 ycar. TThile living together with the respondent, 1dage bec;ot two children, and th..t she went back to hue with a third boy ho was suckling. He denied that he •o dVOL d his wife, or c1imed back the bride wealth. lie alleged that he wee not aware of tc divorce procodin s which were dealt with by the primary courts/in 2 separate suits between Muga and TIalcafu. Later ho : changed his miid, and oid that when he became aware of the custody of children pocoedinga he triad to be oincd in as a party, but the trial court d/sallowcd his application0 He claimed -That he could not take legal poceediigo against the respondent for alleged abduction because the esaondeiit avoided him every time0 Ho also could not o::piain to te court nh: huga did not tell he respondent 5t the material tine that se was still reorried to him. And finally, Ties aid that it I A / :3: whothor or not ivIug woo rnarrictl to tho rospondont as. ±ho issu. on thio mottor was olroacty dociciod. oroovor ha soid tha fact that Mho owaincd divorcc as : conic crt cloarly from thc oviccnoc in this ccioa moant that slic woo in f/act marriad to tho rcsiaondont bofora chic wont hack to livo with tc oppcliant0 On this appoal, tha/ ppLllo.nt stuck to his cri±nal stand and arguod that th. io1lac magistrato arrod in accatin tho ovidano.. oi: tho rospondint as ogoins his cvidonco do insisto.. tnat as a huc cans. hugo ho was nti C to tn rustoUi of th, ohi1drn a1±nouY t ..y waro not concivod a by him. I think both those argumcnts foil0 I or ircl agr 0 1± a p cllEtc riagisraL that ti anc.., whicia showod that Muga obtainod/divorco from tho raspondant ::rovcd tht sho as in fact marricci to hi during th: 10 yicrs of thctr living togcthcr. Thcrcfori, whon shc attcna±cd to say in court that shc was not marriad oho was not baing trut1ifl0 :qually, I do not agroc tht thc cvidcnc of Okandi is truthful inc/viaw of whet hi said in anotlior caso. In tica circumstonccs I fine ti/0t tho. avidanca showcd that tico two childron :cro not born during tI: subsistanca of any marriagc hitwoan thc. noipollant and 161ua0 bblo chiidrc, thcrcforo could not ho his at al1 I fullyagroo with tho/docision of .tho District Court. This appoc 1 is accordingly dismiss/3d. As tho rospondont did not aipoar ii rnako no ordar as to costs. I Dalivarod 3cd day of horch 1 97 1 - (z.N. LJKih/) LCTING Jb]JCL, I t