Kenneth Showa Muteto v Muteto (Appeal 151 of 2005) [2007] ZMSC 138 (21 August 2007)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 151/2005 HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN KENNETH SHOWA MUTETO Appellant AND REHEMA LAMAZANI MUTETO Respondent Coram: Lewanika, DCJ. Chitengi, JS and Kabalata, AJS on 21st November, 2006 and 2 lsL August, 2007 For the Appellant : Mr. G. X. Lukwanda of Messrs C. L. Mundia & Company For the Respondent: Mrs L. Mushota of Mushota & Associates JUDGMENT Chitengi, JS, delivered the judgment of the court. This is an appeal against the decision of the High Court dismissing the Appellant’s petition for dissolution of his marriage to the Respondent on ground of unreasonable conduct (sic). The facts of this case are that the parties got married on 4th May, 1996 at St. Andrews’s Church of the United Church of Zambia in Ndola. After the marriage, the parties lived at various places but at the time of the commencement of these - J2- proceedings the parties were staying at 14 Nalikwanda Road Woodlands, Lusaka. Both parties are employees of ZESCO; the Appellant is an Electrical Engineer while the Respondent is a Secretary. From the evidence it appears that the parties, who had no child of the marriage or family, were happily married until the Petitioner committed adultery with a woman called Beauty Kalingeme and who gave birth to a child called Kashulo Muteto. According to the Appellant after the birth of the child Kashulo Muteto he informed the Respondent and pleaded for forgiveness and understanding but the Respondent did not respond favourably. Attempts at reconciliation yielded nothing despite the Appellant’s assurances that there will be no further relationship between himself and Beauty Kalingeme. The Respondent would not like the Appellant to see the child Kashulo Muteto whether he was sick or not. The Respondent had also, on several occasions, threatened to take her own life, that of the Petitioner and the child Kashulo Muteto. The threats are real. There has been no peace in the home for the parties who continue to live together. The Respondent’s position was that the Appellant never informed her of the birth of the child Kashulo Muteto and that the Appellant did not plead for forgiveness and understanding. She said she fortuitously came to know about the existence of Beauty Kalingeme when she came across a letter written by Beauty Kalingeme. The Respondent denied stopping the Appellant from having access to the child; or threatening to take the life of the Petitioner or the child Kashulo Muteto. The Respondent only threatened to take her own life because of the mental torture and pain was unbearable. The Respondent refused to go to the Appellant’s lawyers for reconciliation because the real purpose was not reconciliation but about a Will for the child, an issue which was torturing her mentally. The Appellant treated her badly; the Appellant’s niece and Beauty Kalingeme insulted her. On these facts the Appellant commenced this divorce petition alleging that his marriage with the Respondent has broken down irretrievably on account of the Respondent’s unreasonable behaviour. On the other hand the Respondent denied that the marriage has broken down irretrievably. According to the Respondent, the parties still relate to each other as husband and wife and the Respondent does not find the Appellant’s adultery intolerable. As regards the child Kashulo Muteto the Respondent buys items of clothing for the child, which the Appellant accepts and dehvers to the child. Consequently, the Respondent prayed that the petition be dismissed. -J4- On these facts the learned trial Judge found that it was the Appellant’s adulterous conduct which made the Respondent react in the manner she did, though the Respondent later condoned the adultery. We take it by condoning the adultery, the learned trial Judge meant the Respondent did not find the Appellant’s adultery intolerable. The 1973 Matrimonial Causes Act did away with condonation of adultery and brought in the concept of intolerability. Be that as it may, the learned trial Judge held that in the circumstances of this case it was unfair for the Appellant to regard the Appellant’s adulterous conduct as unreasonable behaviour and to rely on it for divorce. For this reason the learned trial Judge dismissed the Appellant’s divorce petition with costs. The Appellant now appeals to this court against the dismissal of his divorce petition by the learned trial Judge. The Appellant advanced three grounds of appeal the theme of which is that the learned trial Judge erred in law and fact by not finding that there was sufficient evidence to show that the marriage had broken down irretrievably. Mr. Lukwanda, learned counsel for the Appellant, filed detailed heads of argument on which he relied. Mrs. Mushota, learned counsel for the Respondent, also filed detailed written heads of argument on which she relied. Both counsel cited many - J5 - authorities in support of the propositions of law they advanced in their submissions. However, in the view we take of this matter we do not intend to go into the details of the grounds of appeal, the arguments of counsel and the authorities they cited to us. Suffice it to say that we have carefully considered the submissions and the authorities cited to us. We have carefully considered the evidence, the submissions of counsel and the judgment appealed against. As we understand this case the critical issue boils down to this: Can a spouse who on his own admission is guilty of a matrimonial offence rely on the reaction of the innocent spouse to the matrimonial offence as a ground to annul the marriage? As the learned trial Judge found, we do not accept that the Respondent’s reaction to the Appellant’s adultery was unreasonable behaviour on her part justifying the dissolution of the marriage. On the evidence, we are satisfied that while the Respondent has her heart in the marriage, the Appellant, for obvious reasons, is tired of his marriage. But being tired of one’s marriage is no ground upon which a court can dissolve a marriage. We are firm in our minds that in every community marriage is the bedrock of society. Therefore, we do not by our judgment, -Je­ wish to set a dangerous principle that a spouse who does not want the other spouse can easily obtain a divorce by committing a matrimonial offence and when the innocent spouse reacts to that matrimonial offence, such reaction should amount to unreasonable behaviour justifying dissolution of the marriage. In this case the fact relied upon by the Appellant was unreasonable behaviour. But for the reasons we have given above, the Appellant failed to prove unreasonable behaviour on the part of the Respondent. The learned trial Judge cannot, therefore, be faulted when he dismissed the Appellant’s petition. There is no merit in this appeal and we dismiss it with costs to the Appellant. D. M. LEWANIKA DEPUTY CHIEF JUSTICE