[2022] UGHCFD 38

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION) DIVORCE CAUSE NO. 0147 OF 2020 WALTER MUGESERA=============================PETITIONER VERSUS DOROTHY UWERA==============================RESPONDENT**

## **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA JUDGMENT**

#### **Introduction**

This judgment is in respect of a Divorce petition filed in this Honorable court on 9 th November 2020 by a one Walter Mugesera (hereinafter referred to as **"the petitioner"**) against his wife Dorothy Uwera (hereinafter referred to as **"the respondent"**). The petitioner seeks for dissolution of the marriage between him and the respondent which was solemnized at All Saints Cathedral-Kampala on 20th August 2011 under the provisions of the Marriage Act Cap 251 on grounds of desertion and cruelty. The petitioner further seeks that he and the respondent be granted joint custody of the issues of the marriage, that they both contribute to the education and maintenance of the issues of the marriage and any other such relief that this honorable court deems fit.

#### **Representation**

At the hearing of the petition, the petitioner was first represented by Counsel Ida Namusoke and later by Counsel Emma Opio. The respondent was not in court and did not defend the petition. Counsel for the petitioner filed written submissions and provided court decisions which have been considered in this judgment.

#### **The petition**

The petition was filed in this honorable court on 9 th November 2020. The respondent was served with summons to answer the petition via her email address [duwera@yahoo.com](mailto:duwera@yahoo.com) and via her whatsApp number +250 785 258 528 after getting an Order from this honourable court on 26th April 2021 to serve summons outside court jurisdiction. The respondent is said to be residing in Rwanda which is outside this court's jurisdiction. However, the respondent did not respond to the said summons. The message that was sent to the respondent containing scanned copies of the summons and petition via WhatsApp showed blue ticks, which was evidence that she received the summons. An affidavit of service to that effect was filed in this honourable court on 14th May 2021 and another on 22nd November 2021. With this evidence on court record and court being satisfied that all necessary efforts were made to serve the respondent in vain, court allowed the petitioner to proceed ex parte.

#### **Facts**

The petitioner and the respondent got married on the **20th day of August 2011** at All Saints Cathedral and **Marriage Certificate No. 137/2011** was accordingly issued. After the said marriage, the two lived together in Bugolobi for a period of one (1) year only but during that year, they had several disagreements which caused marital disharmony. One of the disagreements was when the respondent decided to leave her job with Barclays Bank and to relocate to Rwanda against the wishes of the petitioner. At the time of her relocation to Rwanda, the respondent was pregnant and she gave birth to twins on 19th February 2013 whom the petitioner was not allowed to see until they were 4 months old.

The petitioner and the respondent have lived in separation continuously since 2012 and the respondent has not given the marriage a chance to reconciliation. The respondent refused to resume cohabitation with the petitioner and she is currently in custody of the children. The respondent has however denied the petitioner the chance to live with the children even when he has been contributing towards their maintenance and upkeep. As a result of the respondent's cruelty, desertion and irreconcilable differences, the petitioner has not enjoyed conjugal relations with the respondent which has in turn caused the petitioner mental and psychological anguish and suffering.

It is against that background that this petition was filed in this honourable court and the petitioner prays that the marriage is dissolved, the petitioner and the respondent are granted joint custody of the issues to marriage, the petitioner and the respondent contribute to the education and maintenance of the issues and any other remedy as court shall deem necessary.

The matter proceeded ex parte under Order 9 Rule 10 and Order 9 Rule 20 (1) of the Civil Procedure Rules (CPR) S. I 71-1.

#### **Issues**

- *1. Whether there are valid grounds for dissolution of the marriage between the parties;* - *2. Who should have custody of the children and provide for their maintenance?* - *3. What other remedies are available to the parties?*

#### **Resolution of issues**

## **Issue 1:** *Whether there are valid grounds for dissolution of the marriage between the parties.*

Section 4 of the Divorce Act provides the grounds under which a husband and a wife can petition for divorce. However, our courts have pronounced themselves on the unconstitutionality of those grounds in the case of *Uganda Association of Women Lawyers and Others Versus Attorney General Constitutional Petition No. 2 of 2000*. In this case, it was held that Section 4 of the Divorce Act is null and void in as far as it required women to prove many grounds for divorce as opposed to men who were required to prove only one. The court considered this as discrimination on the basis of sex and in violation of the equality provisions under the 1995 constitution of the Republic of Uganda. It was the view of the learned Justices that all grounds of divorce mentioned in Section 4 (1) and (2) of the Divorce Act are available to both parties to the marriage.

Counsel for the petitioner in his submissions raised two grounds for dissolution of the marriage between the parties to wit; desertion without reasonable excuse and cruelty.

On the ground of desertion, Counsel while relying on the cases of *Tibenderana James Versus Reem Al-Torki Divorce Cause No. 43 of 2012* and *Lang Versus Lang (1954) 3 ALL ER 571*, submitted that it is clear from the undisputed evidence of the petitioner that the respondent unilaterally and without justifiable cause, absconded the country in which the parties mutually agreed to establish their matrimonial home. The respondent has neither returned to visit the petitioner nor hosted him at her home in Rwanda for a period of over eight years now. Counsel further contended that the only inference which can be drawn from the respondent's conduct is that she intends to stay permanently separated from the petitioner.

He thus submitted that a valid ground of desertion, as envisaged in law, has been proved by the petitioner, thereby warranting a Decree for dissolution of his marriage with the respondent.

On the ground of cruelty, it was Counsel's submission that denial of conjugal relations has been held to amount to cruelty as was in the case *of Doreen Kirungi Versus Ronald Mugabe Divorce No. 48 of 2018*. Counsel further submitted that it is the petitioner's unrebutted testimony that the respondent deserted him for a period of over eight years. As such, he has not enjoyed conjugal relations and consortium with her. The respondent has refused to resume cohabitation and never visits the petitioner when she comes to Uganda and neither has she hosted him at her home, which has caused him mental and psychological anguish and suffering.

As already observed, the respondent did not file a reply to the petition and so the evidence of the petitioner was uncontroverted and/or undisputed. Order 8 Rule 3 of the Civil Procedure Rules SI 71-1 provides that:

"*Every allegation in a plaint (in the instant the petition), if not denied specifically or by necessary implication or stated not to be admitted in the pleadings of the opposite party, shall be taken to b admitted".*

The petitioner's sworn evidence was not rebutted by the respondent. On the authority of *Massa Versus Achen 1978 [HCB] 279,* an averment on oath which is neither denied nor rebutted is admitted as the true fact.

Thus, since the respondent neither filed a reply to the petition nor appeared in court to defend herself, I am inclined to believe the averment of the petitioner in his affidavit in support of the petition and his witness statement which were not rebutted, as true facts in as far as they prove the fact of desertion and cruelty.

In light of the above and on the account of the adduced evidence, issue 1 is resolved in the affirmative. There are valid grounds for dissolution of the marriage between the parties. The petitioner has proved to the satisfaction of this honourbale court that the respondent has deserted him for a period of over eight (8) years and was also cruel to him in so far as she denied him conjugal rights during the subsistence of the marriage, refused to resume cohabitation with him and she never visits him whenever she comes to Uganda which has caused the petitioner mental and psychological anguish.

### **Issue 2:** *Who should have custody of the children and provide for their maintenance?*

Counsel for the petitioner submitted that the parties should be granted an Order for joint custody of the two issues that were born during the subsistence of the marriage. Relying on Article 34 (1) of the Constitution of the Republic of Uganda,1995 and Section 4 (1) of the Children Act, Cap. 59 (as amended), Counsel submitted that a child has a right to live with and know his/her parents. Counsel further submitted that the children are in *defacto* custody of the respondent currently and the petitioner has been allowed very limited time to access and interact with them. The petitioner has not been allowed to live or travel with the children. His relatives too who are unable to travel to Rwanda have not had an opportunity of meeting the children. As such, Counsel submitted that it was the petitioner's proposition that the respondent has custody of the children during the school term and then the parties share the school holiday period equally. The petitioner also prayed for visitation rights and access to the children during the school term.

On the issue of maintenance, Counsel while relying on Section 5 of the Children Act, Cap. 59 (as amended) and on the case of *Namukasa Joweria Versus Kironde* *Livingstone Divorce Cause No. 30 of 2010* submitted that parents have a duty to maintain their children. Counsel contended that despite the prevailing circumstances, the petitioner has been providing upkeep of USD 1,500 (United States dollars One Thousand Five Hundred) per month and that he pledges to continue doing so. However, Counsel also submitted that since there is unrebutted evidence that the respondent is gainfully employed by the Private Sector Foundation of Rwanda, she should also make a contribution towards the maintenance of the children, specifically, she should provide for their accommodation and feeding when they are in her custody.

Considering the unrebutted evidence of the petitioner as regards to the custody of the children, I am inclined to agree with counsel for the petitioner that every child has a right to live with his/her parent. Since the respondent has never denied the paternity of the children, it is only fair and just in the circumstances that the petitioner is allowed access and ample time with his children.

I also find that the petitioner is not making unreasonable or unattainable demands in the circumstances. The petitioner is requesting for joint custody of the children and has gone ahead to propose a schedule for the joint custody that I find fair in the circumstances. I take note of the fact that the petitioner has taken into account the welfare principle of the children in coming up with the said joint custody schedule. He is aware that the children are school going and therefore proposes to leave them with their mother during school time, I believe in a bid to give them stability in their education and/or studies. He prays for visitation rights and access to them while they are at school and equal sharing of the holiday time which I find very fair in this situation. I find no reason as to why the petitioner should be denied the chance of accessing his children. In the absence of evidence to the contrary, I also find that the proposed schedule of joint custody is a workable and/or flexible one that would not prejudice the parties in any way.

With regards to the maintenance of the children, I still agree with Counsel's submission that it is the duty of parents to maintain their children. There is evidence on court's record that the petitioner has been providing for the children and that he pledges to continue doing the same. There is also evidence on record that the respondent is gainfully employed. I take note of the petitioner's request for the respondent to make a contribution towards the maintenance of the children specifically on accommodation and feeding when they are in her custody.

I find that the respondent has already been providing shelter and food to the children since they have always been in her custody from the time they were born. As such, I will simply implore her to continue providing for the children as she has always done on top of the upkeep that the petitioner sends her monthly.

Therefore, as regards to issue 2, I find that there should be joint custody of the children in accordance with the schedule proposed by the petitioner. Both the petitioner and the respondent should maintain their children equally since both parties are gainfully employed.

#### **Issue 3:** *What other remedies are available to the parties?*

Having found that the petitioner has discharged the burden of proving his grounds for dissolution of his marriage with the respondent, the following declarations and/or Orders are made:

1. That a decree Nisi dissolving the marriage between Walter Mugesera and Dorothy Uwera that was solemnized on 20th August 2011 at All Saints Cathedral, Kampala is hereby entered;

- 2. That there shall be joint custody of the children that is, Amber Nyangoma and Arianna Nyakato by the parties; - 3. That the respondent shall have custody of the children during the school term while the petitioner shall have visitation rights and access to them during the school term. The holiday time shall be shared equally by both parties; - 4. That the petitioner and the respondent shall contribute equally to the maintenance of the children. In particular, each party shall be responsible for the children's welfare whenever they are with either party; - 5. That without prejudice to the above, the petitioner shall continue providing monthly up keep for the children whenever they are not in his custody while the respondent shall provide accommodation, clothing and feeding for the children during the said period; and - 6. That each party shall bear their costs.

I so order.

**Dated at Kampala this 13th day of June 2022.**

**………………………………**

Alice Komuhangi Khaukha

### **JUDGE**

**13/06/2022**