Matrimonial No 09 of 2023 Miller

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE MATRIMONIAL CAUSE NO. 9 OF 2023 M. S. J................................................................................................... PETITIONER

VERSUS U. F..................................................................................................... RESPONDENT EX-PARTE JUDGMENT 22nd May & 11th July, 2024 BARTHY, J.: The petitioner, who will be referred as M. S. J, has filed a petition in this court seeking relief against the respondent, referred to as U. F, requesting the following reliefs: i. Decree of divorce ii. An order restrains the respondent from travelling within or outside Tanzania with the child of marriage without prior consent of the Petitioner. Hi. Custody to the Petitioner J i The petitioner alleged that he had been denied his conjugal rights and experienced in-house separation by the respondent since June 2023. These are the grounds he asked the court to consider in granting the reliefs sought. In this matter, the petitioner, a British citizen, and the respondent, a Rwandese citizen, celebrated their civil marriage on 26th February 2016, in Nyamata, Bugesera, Rwanda. They subsequently moved to Dar es Salaam, where they established their matrimonial home. The couple lived happily for a time and were blessed with one daughter, who was five years old at the time of filing this petition. However, their once harmonious union began to deteriorate. The respondent moved out of the matrimonial bed, started making unfounded allegations against the petitioner, and demanded an end to their marriage. These

marital squabbles and misunderstandings marked the beginning of significant discord between the couple. The respondent was duly served with the petition and made an initial appearance in court. She was ordered by the court to file her answer to the petition but failed to comply. Subsequently, she did not make any further appearances in court, choosing instead to remain absent from the legal proceedings. v 2 Throughout the trial, the petitioner was represented by Ms. Nakazaeli Tenga, assisted by Mr. Greyson Laizer. They prayed the court to proceed with the hearing of the case ex-parte due to the respondent's absence from the proceedings. This request was granted by the court based on the fact that the respondent had chosen not to participate in the legal process after her initial appearance. On the petitioner's side, only one witness testified in court: the petitioner himself as PW1. In his sworn testimony, he stated that he married the respondent in Rwanda and tendered their marriage certificate, which was admitted as Exhibit Pl. He further stated that their union was blessed with one child born on 19th December 2018, in Dar es Salaam, and that he is the one responsible for all her needs. PW1 also stated that for about 12 months, the respondent had moved out of their matrimonial bed, although they still live under one roof. This followed the respondent's allegations that PW1

was having extra-marital affairs, after which she denied him his conjugal rights. Following their misunderstanding, PW1 referred the matter to the Marriage Conciliation Board (the Board). The respondent was summoned to appear before the Board three times but refused to attend. PW1 was issued 3 Form No. 3 from the Board and decided to petition for a decree of divorce. He tendered the certificate from the Board, which was admitted as Exhibit P2. PW1 therefore prayed to this court to issue a decree for divorce, grant him custody of their child (whose name will be withheld for purposes of protecting her identity), and allow the respondent access to their child while he took full responsibility for her maintenance. He further urged the court to grant him custody since he is a British citizen and has the means to care for their child. He expressed concern that if the respondent, a Rwandese citizen, were given custody, he would lose contact with their child. He further stated that during their marriage, they acquired two plots of land in Kigali, Rwanda, which were bought by PW1 as the respondent was a housewife. He prayed to the court to order the sale of the two properties and for the proceeds to be distributed equally, with each receiving a 50% share. PW1 prayed to the court to issue the decree for divorce, division of assets, custody of their child, and a ban on the child's travel

outside Tanzania until the matter is determined. This marked the end of the petitioner's evidence. This court having heard the petitioner's evidence framed the following issues for determination; Qf 4 i. Whether the marriage between the petitioner and the respondent has irretrievably broken down. ii. To whom should custody of the child be granted? Hi. What reliefs are the parties entitled to? To begin with the first issue, this court, in determining whether the marriage between the petitioner and the respondent has irretrievably broken down, considers that it has not been disputed that the parties were duly husband and wife, as evidenced by the marriage certificate tendered in court as Exhibit Pl. PW1, in his petition and evidence, stated that their marital union was fraught with squabbles. PW1 claimed that the respondent had denied him his conjugal rights and had moved out of their matrimonial bedroom into another room for about 12 months, despite still living under the same roof. PW1 then reported their problems to the Marriage Conciliation Board of Kinondoni Municipality, which issued a certificate indicating its failure to reconcile the parties due to the respondent's refusal to appear before the board, as shown in Exhibit P2. In deciding whether or not a marriage has broken down, the court shall consider all relevant evidence regarding the conduct and circumstances of the parties. The law provides guidelines on what matters can be considered as 5 evidence to prove that the marriage is irretrievably broken down, as stated under section 107(2) of the Law of Marriage Act, Cap 29 R.E.

2019. The evidence tendered before this court of the respondent moving out of the matrimonial bedroom and into another room can be regarded as willful desertion of the petitioner by the respondent. However, section 107(2) (e) of the Law of Marriage Act considers desertion to be evidence of the marriage being broken down irreparably if it has continued for at least three years. On the other hand, PW1 testified that he was denied his conjugal rights for about 12 months, which this court considers a form of mental cruelty for not being able to enjoy his marriage. Cruelty is considered evidence of a marriage being irreparably broken down as per section 107(2) (c) of the Law of Marriage Act. The law does not specify the time period sufficient to determine cruelty, including denial of conjugal rights, as sufficient evidence to prove that the marriage is beyond repair. In the case of Elizabeth A. Komakoma vs Zephania M. Andendekisye (Civil Appeal 171 of 2005), High Court at Dar es Salaam [2008] TZHC 54, the court considered a period of four years of being denied conjugal rights as sufficient evidence that the marriage was irreparably broken. 6 In the present matter, the evidence of desertion and mental cruelty for being denied conjugal rights is considered to be for only a short while and not long enough to render the parties unable to mend their problems. While PW1 has presented

evidence to substantiate the breakdown of the marriage, it does not appear to be beyond repair. Therefore, the court finds it proper to issue a decree of separation for a period of three years. Turning to the second issue, the court is tasked with determining the custody of the child, who was born on 19th December 2018 and is now about six and a half years old. According to the testimony of PW1, the child has been living with both parties. Now that the court has issued a decree of separation, it must determine to whose custody the child should be placed. Regarding the evidence tendered by PW1, it primarily addressed the respondent's behavior towards him, leading to the present matter, but there was no evidence to show that she was unfit to raise the child. PW1 stated that he was a British citizen, and so was the child, and that he would ensure the child was well cared for with strong family support. He also stated that he was the sole breadwinner and had been solely providing for the child as the respondent was a housewife. However, financial capability alone is not the only ground considered by the court in granting custody of the child, as seen in the case of Habbv 7 Longo vs Potto Kifizi & Another (Civil Appeal 67 of 2021), High Court at Mwanza [2022] TZHC 9713, as noted by Judge Mnyukwa. In deciding in whose custody the child should be placed, the court is required under

section 125(2) of the Law of Marriage Act to consider the best interests of the child. Although the term "best interest" is not defined by any statute, it can be construed depending on the circumstances of each case. In the case of Nacky Esther Nyanqe vs Mihayo Marijani Wilmore (Civil Appeal 169 of 2019), Court of Appeal at Dar es Salaam [2022] TZCA 507, the court highlighted several factors to be considered in determining the best interests of the child it held as follows; the best interest of the child is determined in consideration of such factors as; the age and sex of the child, the independent views of the child, the desirability to keep siblings together, continuity in the care and control of the child, the child's physical, emotional and educational needs, the willingness of each parent to support and facilitate the child's ongoing relationship with the other parent... In this matter, I consider it to be in the best interest of the child, who is below seven years old, to be placed in the custody of her mother. According to the provision of section 125(3) of the Law of Marriage Act, there is a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with their mother. I have considered that the custody sought involves a minor girl and that the respondent, being her biological mother, is the best person to have custody during

the period of separation. It is in the best interest of the child to be placed in the custody of the respondent. Therefore, the petitioner should have the right to access and visit the child on weekends, during school holidays, and on public holidays. Furthermore, the petitioner is ordered to maintain the child, ensuring that all her needs are met, including food, clothing, payment of school fees, and provision of medical insurance. This arrangement ensures the child's well­ being and stability while allowing the petitioner to remain actively involved in her life. Furthermore, since both the petitioner and the respondent are not Tanzanian nationals but are residents of Tanzania, this court orders that the respondent, who will be granted custody of the child, is prohibited from taking the child outside of Tanzania without the consent of the petitioner for the entire period of separation, as per section 126(2)(e) of the Law of Marriage Act. C7 9 The petitioner has prayed this court to issue an order for the distribution of the matrimonial assets, specifically two landed properties located in Rwanda. Regarding this request, the court finds that it was not specifically pleaded in the petition. Additionally, PW1 did not provide sufficient evidence to substantiate the existence of these properties, as no documents were tendered to prove their existence. Given the lack of specific

pleading and evidence, the court refrains from issuing any order concerning the division of the matrimonial assets. Without clear evidence and proper documentation, it would be inappropriate for the court to make a determination on this matter. That being said, this court concludes with the following orders: i. The marriage between the parties is declared broken down, and a decree of separation is granted for a period of three years per section 110(1) (a) of the Law of Manage Act. ii. Custody of the minor child is awarded to the respondent under section 125(1) of the Law of Manage Act. iii. The respondent is prohibited from taking the child outside of Tanzania without the petitioner's consent for the entire period of separation as per section 126(2) (e) of the Law of Manage Act. io iv. The petitioner shall have the right to access, and visit the child on weekends, during school holidays, and on public holidays as per section 126(2)(c) and (d) of the Law of Manage Act. v. The petitioner is ordered to bear full responsibility for the child's maintenance, including providing for all her needs such as food, clothing, school fees, and medical insurance per section 129(1) of the Law of Mariage Act. It is so ordered. Dated at Temeke this 11th day of July, 2024. G. N. BARTH

JUDGE Delivered in the presgncejpf’Ms. N. R. Tenga and Mr. H. Mfinanga learned counsels for the petitioner, RMA. Ms. Bernadina and in the absence of the Respondent. li