[2012] UGHC 400
The court found that although the respondent had provided evidence of adultery, cruelty, and desertion by the appellant, she had condoned the acts by continuing to have a sexual relationship with her husband after discovering his adultery. The court held that condonation of the matrimonial offence precluded the...
Source-derived case information.
- Citation
- [2012] UGHC 400
- Parties
- Appellant: Francis Xavier Jawee; Respondent: Cleophas Kabajwara Jaawe
- Court
- High Court of Uganda
- Jurisdiction
- Uganda
- Case Number
- Civil Appeal No. 0010 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Judges
- Owiny-Dollo, J
- Legal Topics
- Divorce, Judicial Separation, Adultery, Cruelty, Desertion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Xavier Jawee
Appellant
Cleophas Kabajwara Jaawe
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced proved adultery by the appellant.
- 2 Whether the alleged adultery, if proved, had been condoned and whether the petition was brought after unreasonable delay.
- 3 Whether there was sufficient evidence of desertion or cruelty to justify the grant of divorce.
Ratio Decidendi
The court found that although the respondent had provided evidence of adultery, cruelty, and desertion by the appellant, she had condoned the acts by continuing to have a sexual relationship with her husband after discovering his adultery. The court held that condonation of the matrimonial offence precluded the grant of a divorce decree. Furthermore, the respondent had persevered in the marriage despite the appellant's conduct, and the petition was brought after an unreasonable delay. The trial Magistrate erred in granting a decree nisi for divorce. Instead, the appropriate remedy was an order of judicial separation, as expressly prayed for in the alternative by the respondent. The court...
Court Disposition
appeal_allowed_in_part
Orders
- The decree nisi for divorce granted by the trial Magistrate is set aside.
- An order of judicial separation is substituted in place of the decree nisi.
Full Case Text
Judgment text and source record
16 paragraphs
## **THE REPUBLIC OF UGANDA**
#### **IN THE HIGH COURT OF UGANDA; AT FORT PORTAL**
#### **CIVIL APPEAL No. 0010 OF 2005**
**(Appeal from the judgment and decree of His Worship Karemani J. Karemera Magistrate Grade 1, in FPT Divorce Cause No. 0003 of 2000, dated the 17th of February, 2005)**
# **FRANCIS XAVIER JAWEE ::::::::::::::::::::::::::::::::::::::::::: APPELLANT**
#### *VERSUS*
#### **CLEOPHAS KABAJWARA JAAWE:::::::::::::::::::::::::::: RESPONDENT**
# **BEFORE: - THE HON. MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO**
#### **JUDGMENT**
The Respondent herein had petitioned Court to have her marriage to the Appellant herein either dissolved or a judicial separation ordered, on grounds of adultery cruelty, and desertion. The learned trial Magistrate found for the Petitioner and allowed the petition; and granted a decree nisi in the divorce cause. It is against this decision that the Appellant as the aggrieved party has appealed; seeking this Court's order that the order granted by the Court be set aside. The grounds of appeal are that:–
- 1. The trial Magistrate erred in law and in fact when he held that the evidence adduced revealed adultery. - 2. The trial Magistrate erred in law in granting divorce on alleged adultery, if it had been proved, such adultery had been condoned and the petition had been brought after unreasonable delay. - 3. The trial Magistrate erred in law and in fact in holding that there was evidence of desertion or cruelty as to lead to divorce.
At the hearing of the petition, the Petitioner gave a litany of events to prove adultery, cruelty, and desertion by the Respondent (now Appellant). The Appellant who had attended Court during the examination in chief of the Petitioner, and had through his lawyer cross examined her, however defaulted in appearance when it was his time to testify; upon which the Court proceeded to deliver judgment in default. The learned trial Magistrate found for the Petitioner that adultery had been proved and proceeded to grant a decree nisi.
Ordinarily, all the grounds of the petition would have failed on the sole ground of the Petitioner's having condoned such acts. She continued to have sexual relationship with the husband even after she had effectively found him red handed in bed with another woman. She persevered for the entire period of her marriage with the husband's torturous deeds which are brought out in evidence and were never controverted. I think, the learned trial Magistrate hastened to issue a decree nisi when the Petitioner had expressly prayed alternatively for an order of judicial separation. In the event I set aside the order of the trial Magistrate and substitute therefore an order of judicial separation. Being a family matter there will be no order as to costs here and in the Court below.
#### **Alfonse Chigamoy Owiny – Dollo**
## **JUDGE**
**20 – 06 – 2012**