[2022] UGHCFD 27

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION)**

# **DIVORCE CAUSE NO. 126 OF 2020**

**DAVID ONGEE===================================PETITIONER**

# **VERSUS**

**MARY LAMARO================================RESPONDENT**

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

### **Introduction**

This judgement is in respect of a Divorce Petition filed in this Honorable court on 6 th October 2020 by one David Ongee (herein after referred to as "**the petitioner**") against his wife Mary Lamaro (herein referred to as "**the respondent**"). The petitioner seeks for dissolution of the marriage between him and the respondent which was solemnized on 15th January 2011 at St. Phillips Cathedral Church, Gulu on grounds of cruelty. The petitioner further seeks to have custody of the two issues of the marriage, an order that the petitioner is entitled to 50% of the property acquired during the marriage, costs of the petition, and any other such relief that this honorable court deems fit.

# **Representation**

At the hearing of the petition, the petitioner was represented by Counsel Bwire Geoffrey from Kigenyi, Opira & Co. Advocates. The respondent was unrepresented.

#### **The petition**

The petition was filed in this honorable court on 6 th October 2020 and the respondent through O-A Advocates filed an answer to the petition on 30th October 2020. Later the respondent was unrepresented throughout the hearing, she did not file any witness statement and she was allowed to give oral evidence by the court. The petitioner who was the only witness for the petitioner's case gave evidence by a witness statement and was cross-examined by the respondent. The respondent was also the only witness for the respondent's case and she gave oral evidence. Counsel for the petitioner filed written submissions and the respondent did not file any submissions because she was unrepresented. The submissions have been considered in this judgment.

### **Facts**

The petitioner and the respondent got married on the 15th of January 2011 at St. Phillips Cathedral Church in Gulu. A copy of the Marriage Certificated was produced in Court and admitted as PEXI. Prior to this, they had conducted a customary marriage. They both profess the Christian faith and they produced two children, a male child who was aged 11 years at the hearing of this petition and a girl child who was aged 9 years. The petitioner alleges that since the solemnization of the marriage, the respondent has been very cruel to him. That the respondent has subjected him to domestic violence, and psychological torture, denied him his conjugal rights and constantly told him that he was not good in bed and he was not the father of the two children. The petitioner further stated that his marriage with the respondent was characterized by quarrels, and fights where the respondent would physically assault him in the presence of the children. The petitioner further stated that because of the acrimonious relationship with the respondent, and for the sake of the children, he decided to leave the home in 2017 and he has never gone back though he still pays school fees for the children. According to him, the marriage has irretrievably broken down with no hope of being redeemed.

The respondent on the other hand denied being cruel to the petitioner. She also denied having denied him his conjugal rights, quarreling and fighting with him, and even embarrassing him. According to her, the differences between her and the petitioner are reconcilable and the marriage has not irretrievably broken down. According to the respondent in her evidence in court, the petitioner is a poor communicator and she did not know why he left the home until when she read the contents of the petition. Some properties were acquired during the subsistence of the marriage.

It is against this background that this petition was filed in this honorable court.

## **Issues**

- *1. Whether there are grounds for dissolution of the marriage between the petitioner and the respondent* - *2. Whether the petitioner should be granted custody of the children with maintenance.* - *3. What remedies are available to the parties.*

#### **Resolution.**

*1. Whether there are grounds for dissolution of the marriage between the petitioner and the respondent.*

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.

In *Habyarimana Versus Habyarimana [1980] HCB 139,* it was held that there is no definition of cruelty in the Divorce Act but case law has established that no conduct can amount to cruelty unless it has the effect of producing actual or apprehended injury to the petitioner's physical and mental health. That there must be danger to life, limb or health, bodily or mental or reasonable apprehension of it to constitute cruelty.

In the case of *Vivian Ntanda Versus James Kayemba Divorce Cause No. 4 of 2008 (2008) HCB* it was held;

"*There is no comprehensive definition of cruelty accepted as satisfactory. It depends on the habits and circumstances of the matrimonial life of the husband and wife, their characters, the normal mode of conduct to one another and the knowledge which each has of the intention and feelings of the other. The party seeking relief must prove probable injury to life, limb or health. A decree could be granted even upon a single act of cruelty."*

Counsel for the petitioner relied on the case of *Sarah Kiyemba Versus Robert Batte HC-FD-DC No. 127 of 2018* which used the dictionary definition of cruelty to mean, "*readiness to give pain or cause suffering to others*". Hon. Lady Justice Ketra Kitariisibwa Katunguka while quoting Merriam Webster observed that, *"conjugal*

*rights are the sexual privileges implied by and involved in the marriage relationshipthe right of sexual intercourse between husband and wife".*

In addition to what was pleaded in the petition, the petitioner also testified by witness statement through which he informed the court that immediately after their marriage, the respondent told him "you are now finished, you are my husband and you have nowhere to run to, you will now see me in full swing". According to the petitioner, he did not take this seriously but after about three months, the respondent subjected him to domestic violence, quarrels and fights, cruelty, and psychological torture, constantly telling him how he was badly raised by his late mother. According to him, the respondent further denied him conjugal rights and constantly told him how he was not fit to share a bed with her. The petitioner further stated that the respondent also oftentimes told him that he was not the father of the two children. According to the petitioner, this caused him immense torture and that is why he made up his mind to leave the home in 2017 and never to go back.

The respondent, both in her pleadings and in her evidence in court denied the petitioner's allegations and said that she has never been cruel to the petitioner. According to her, there were a few quarrels and fights in the home and they were all at the instance of the petitioner. She categorically stated that she did not want the divorce and that the differences between her and the petitioner were reconcilable if the petitioner would improve on his communication. According to her, the marriage between her and the petitioner has not irretrievably broken down.

As already observed, the petitioner was the only witness to the petitioner's case. He called no witnesses to confirm what he was alleging. However, I am convinced that he was truthful because there would have been no reason as to why he would leave the home where his children live and go to stay alone. This is especially so given the fact that it was the evidence of the respondent that she did not know the petitioner to be currently cohabiting with another woman or engaged in any extramarital relationship. It would be different if there was evidence adduced to court to indicate that the petitioner is currently staying with another woman or he was engaged in an adulterous relationship. It would then be concluded that the petitioner abandoned the home so as to stay with another woman. In the absence of that, the only logical explanation for the abandonment of the home by the petitioner is the cruelty of the respondent as he described it in his pleadings and in his evidence in court. In the case of *Sarah Kiyemba Versus Robert Batte Divorce Cause No. 127 of 2018 (supra)* Hon. Lady Justice Ketrah K. Katunguka held that;

"*Denial of companionship and a right to conjugal both imbedded in the marriage contract without reason causes suffering and mental torture and therefore amounts to cruelty."* She further stated that "*a marriage without companionship and intimacy unless by consent of parties does not exist… that marriage has irretrievably broken down"*

In light of the above court decision and on the account of the adduced evidence, I find that the marriage between the petitioner and the respondent does not exist in a real sense. This is because the two parties have lived separately since 2017 with no companionship and intimacy and the petitioner has vowed not to return to the respondent. Despite the fact that the respondent is strongly opposed to the divorce, I find that the petitioner has proved to the satisfaction of this honorable court that the respondent was cruel to him during the subsistence of the marriage and that is the reason he abandoned the home with a vow never to ever go back. Considering the circumstances of this case, the marriage between the petitioner and the respondent has irretrievably broken down with no possible hope of being redeemed. The first issue is therefore answered in the affirmative. ## 2. *Whether the petitioner should be granted custody of the children with maintenance.*

Article 31 (4) of the Constitution provides that it is the right and duty of the parents to care for and bring up their children. Article 31 (5) further provides that the children may not be separated from their families or persons entitled to bring them up against the will of their families or those persons except in accordance with the law. Article 34 (1) thereof provides that children shall have a right to know and be cared for by their parents or those entitled by law to bring them up subject to laws enacted in their best interests. Section 29 of the Divorce Act is to the effect that in suits for dissolution of the marriage, the court may at any stage of the proceedings or after the Decree Absolute has been pronounced, make such order as it thinks fit and may from time to time vary or discharge the orders with respect to custody, maintenance and education of the minor children of the marriage.

The petitioner prayed to the court to grant him custody of the two children of the marriage stating that the respondent is not fit to take care of the children because she cannot prepare meals for them and keeps them with neighbors and picks them up after her return from work. According to him, the respondent's work takes priority over the children. He further testified that sometime in 2014, one of their children was sick and admitted to the hospital and the respondent abandoned the child in the hospital for the petitioner who remained to take care of the child. However, the petitioner confirmed that at the time of the hearing of this petition, the respondent was the one with the custody of the two children.

The respondent, however, denied the petitioner's allegations and insisted she is a caring mother and from the time the petitioner abandoned her with the children, she has been single-handedly taking care of them and the petitioner caters for only school fees. She prayed to the court that in the event this court grantsthe divorce, she should be given sole custody of the children.

Mindful of the fact that the respondent has had custody of the children since 2017 when the petitioner abandoned the home, I find that it may, not be true that she is unfit to keep custody of the children. This is despite the fact that she has full-time employment. On the other hand, it is also undisputed that the petitioner also has a full-time job and it is also not clear who else currently stays at his home. His home environment has not been tested to confirm whether it is convenient for the children or not. On the contrary, the respondent's environment has been tested since she has stayed with them for five years now. That is the environment they are used to and I do not find that it is in their best interests to destabilize them at this point in time. I, therefore, find that the respondent is a fit and proper person to be granted full custody of the two children. The petitioner will, however, have free access to the children.

Regarding the maintenance of the two children, it is the responsibility of both parents to take care of them by providing for their physical, social, mental, and spiritual needs. Both parties are gainfully employed and in their respective pleadings and in their evidence in court, they stated that they are capable of providing for the two children.

In light of the above, the maintenance of the two children will be a shared responsibility between the petitioner and the respondent. The petitioner will provide school fees, school requirements, and medical care. The respondent will provide housing, feeding, clothing, and any other needs. Both parties shall agree on the schools and health facilities for the children.

## *3. What remedies are available to the parties.*

The petitioner in his pleadings, his evidence in court, and the submissions prayed for equal sharing of the properties acquired during the marriage claiming that though the sale agreements are in the name of the respondent, the same were acquired using savings by the family. I also noted that the petitioner in his petition simply mentioned the properties without specifically describing them, an indication that he did not have sufficient details about the said property. On the other hand, the respondent in her answer to the petition clearly described the properties and insisted that she acquired the said properties using her own money and the petitioner did not contribute. While in court, the respondent further testified that the petitioner had also acquired several properties but he is discreet and she did not know their whereabouts. I agree with the respondent in that regard because while in court in cross-examination, the petitioner confirmed that he currently stays in Mattuga in his own house. This was after he had earlier stated that he was renting. The respondent did not know where the petitioner's current home is. It is therefore possible that the petitioner could have acquired much more property that the respondent is not aware of.

Ordinarily, all the above properties acquired individually during the subsistence of the marriage would qualify to be matrimonial properties and subject to sharing by the parties. However, it would not meet the ends of justice to order the equal sharing of the properties acquired by the respondent (which are the ones currently known and the subject of this suit) when the particulars of the properties acquired and owned by the petitioner are not known. This would mean the petitioner would benefit from the properties acquired by the respondent and there would be no reciprocity.

In light of the above, I find that it is just and right in the circumstances of this case that each party retains what they acquired individually during the subsistence of the marriage.

In summary, therefore,

- (a) The acts of the respondent by denying the petitioner his conjugal rights, constantly telling him that he was not fit for her, and engaging in quarrels and fights amount to cruelty which is a distinctive ground of divorce; - (b) The marriage between the petitioner and the respondent has irretrievably broken down; - (c) For the welfare and stability of the children, they need to stay with the respondent (mother) with whom they have been staying for the last five years but their father shall have free access to them so as to fulfill his parental responsibilities in their lives; - (d) Both parents are gainfully employed and should share the responsibility of meeting the children's needs. - (e) Each party shall retain the properties they individually acquired during the subsistence of the marriage.

Consequently, this petition is allowed on the following orders:

- 1. The Marriage between David Ongee and Mary Lamaro celebrated at St. Phillips Cathedral Church, Gulu, Uganda on 15th January 2011 is hereby dissolved on the ground of the cruelty of the respondent. A Decree Nisi is accordingly entered under Section 8(1) of the Divorce Act. - 2. The respondent shall take full custody of the two children of the marriage; - 3. The petitioner shall have free access to the children but their education should not be destabilized. - 4. The respondent shall not deny the petitioner access to the children; - 5. The petitioner shall provide school fees, school requirements, and medical care for the children;

- 6. The petitioner and the respondent shall agree on the choice of schools and health facilities for the children; - 7. The respondent shall provide housing, feeding, clothing, and any other needs of the children. - 8. Each party shall retain the properties individually acquired during the subsistence of the marriage; - 9. Each party shall bear its own costs.

I so order.

## **Dated at Kampala this 5 th day of April 2022.**

……………………………. Alice Komuhangi Khaukha **JUDGE** 5/04/2022