G Kisanga, J.A.: The appellant, Robert Aranjo, had petitioned for divorce on the ground of his wife's desertion. The Primary Court granted the decree on the grounds of the respondent's desertion and her persistent denial of sexual intercourse to the appellant. The Court further ordered a division of the matrimonial assets and awarded a quarter thereof to the respondent wife. H
The husband appealed to the District Court. In a rather confused judgment the Resident Magistrate misconstrued the decision of the Primary Court and asserted that the Primary Court had granted the divorce on grounds of cruelty and sexual incapacity on the part of the appellant husband. On analysing the evidence I
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A himself, the Resident Magistrate rightly found that the decree could not be based on the husband's sexual incapacity. However he upheld the decree on grounds of constructive desertion on the part of the husband in that the wife was driven away from the matrimonial home by the cruel acts of the husband. He also upheld the order for the division of the matrimonial assets.
On further appeal to the High Court the appellant husband, while conceding that the marriage had irreparably broken B down, contended that the decree of divorce should have been granted on the ground of his wife's desertion and not on the ground of cruelty leading to constructive desertion on his part. In other words he urged that his wife, and not himself should have been found guilty or to blame for the breakdown of the marriage. The High Court (Maina, J.) found that C there was some evidence of cruelty on the part of the husband, but held that whether the divorce was founded on the husband's cruelty or on the wife's desertion, it would not affect the division of the matrimonial assets between the parties. D Accordingly he upheld the concurrent orders of the lower courts for the division of the matrimonial assets. Aggrieved by such decision the appellant now seeks to appeal further to this Court upon a certificate by the High Court that a point of law is involved in the decision. At the hearing of the appeal the appellant appeared before us and argued the appeal in E person, while the respondent was represented by Mr. M.K.B. Wambali, advocate from the Legal Aid Committee of the Law Faculty of the University of Dar es Salaam.
The point of law certified by the High Court (Mapigano, J.) for our consideration was in the following terms: F
The issue is whether a party who has been the cause of the breakdown of a marriage should benefit from her/his own wrong. Another issue will be whether dissolution was warranted. G
We deal with the second issue first, namely, whether dissolution was warranted. We have to point out at once that the issue as stated is too general and vague to be of any assistance to us. For, the question whether dissolution of the H marriage is warranted or not can be one of law or one of fact. It would be a point of law, for instance, if the complaint is that there was no evidence at all on the record to support such dissolution, or that the dissolution was based on some I misdirection or non-direction by the courts below. On the other hand it would be a point of fact if, for instance, the allegation
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A was that the evidence in support of the dissolution was insufficient. The learned judge was required by law to certify to us only a point of law, but as it is, we cannot discover what he really meant to certify to us.
But the more serious criticism is that on the information which was before him, the learned judge could not have raised the B issue in question. It is clear that the appellant himself had petitioned for divorce, and there was overwhelming evidence that the marriage had broken down irreparably. Indeed the appellant himself expressly stated before Maina, J. that the marriage had irreparably broken down, his only contention being that the breakdown should be blamed not on him but on C the respondent who was not prepared to return to the matrimonial home. In such circumstances, it seems plain to us that dissolution of the marriage was the natural and logical consequence, and we can see no room for questioning it.
D We now turn to the first point whether a party who has been the cause of the breakdown of the marriage should benefit from his/her own wrong. As stated earlier, Maina, J. directly addressed himself to this question and came to the conclusion that whether the appellant was guilty of cruelty or the respondent was guilty of desertion it made no difference as regards the division of the matrimonial assets. In coming to that conclusion he relied on section 114 of the Law of E Marriage Act which provides that:
114 (1) The Court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the F division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such assets and the division between the parties of the proceeds of sale.
(2) In exercising the power conferred by subsection (1), the court shall have regard - G
(a) to the custom of the community to which the parties belong;
(b) to the extent of the contributions made by each party in money, property or work; were contracted for their joint benefit; H and
(c) to any debts owing by either party which were contracted for theri joint benefit; and
(d) to the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards I equality of division.
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A The rest of the section is not relevant to the facts of this case. The learned judge took the view that there was nothing in this section, or indeed in the provisions of the Act as a whole, which makes the conduct of the guilty party who causes the breakdown of the marriage a relevant consideration in ordering division of the matrimonial assets.
B In a lengthy submission before us the appellant strongly criticised this view and vigorously contended that it would be grossly unfair to permit a guilty party who wrecks the marriage to benefit from his/her own wrong. He urged that section 114 of the Law of Marriage Act should be read and construed so as to make the conduct of such guilty party a relevant C consideration in ordering division of the matrimonial assets. He claimed that this was the view expressed by this Court in the case Hawa Mohamed v Ally Sefu C v App. No. 9 of 1983 (unreported). The relevant passage in Hawa's case reads:
D With regard to the fear that the broad view might result in a wife being "allowed to benefit from a marriage which she has wrecked" we think, with respect, that it is misguided because what is in issue is the wife's contribution or efforts towards the acquisition of matrimonial or family assets, and not her contribution towards the breakdown of the marriage. Of course there may be cases E where a wife's misbehaviour may amount to failure to contribute towards the welfare of the family and thus failure to contribute towards the acquisition of matrimonial or family assets; but this has to be decided in accordance with the facts of each individua F l case.
Relying on the last sentence which is underlined, the appellant pressed that the respondent had been guilty of desertion which in turn wrecked their marriage and therefore that factor should have been held against her in ordering division of G their matrimonial assets. We think that the appellant has not quite understood the message contained in this passage. As the passage makes it very clear, the Court in Hawa's case was dealing with the issue of contribution towards acquisition H of the matrimonial assets, not contribution towards the breakdown of the marriage which is the issue in the present case. The underlined words which the appellant seeks to rely on simply mean that in ordering division of the matrimonial assets, the Court will consider whether the conduct or behavior of the guilty party who wrecked the marriage operated in I such a way that by reason of such conduct the said party cannot have made a
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contribution to the acquisition of the matrimonial assets. So that if, for example, the guilty party was in desertion at the time of the acquisition of the matrimonial assets, such conduct would be a relevant consideration when deciding on the extent of the party's contribution towards acquisition of the matrimonial assets; the point to stress is that such conduct, in order to warrant consideration, must have been operative at the time of acquiring the matrimonial assets. Thus in a B proper case the Court may well find that the guilty party made no contribution at all if, say, he/she was in desertion for the whole period during which the said assets were acquired.
C We are therefore quite satisfied that this Court in Hawa's case did not consider the question whether the guilty party who causes the breakdown of the marriage should benefit from his/her own wrong because, as the Court clearly stated, that question was not before it. We now address ourselves to that question which has been raised squarely in the present D appeal. It is pertinent to point out that subsection (2) of section 114 of the Law of Marriage Act which was reproduced earlier in this judgment, sets out four matters to which the Court shall have regard when ordering division of the matrimonial assets. It is noted, however, that the extent of the guilty party's contribution to the breakdown of the E marriage is not made one of such matters, nor can it be construed to fall under any one of them. We think that this was such an obvious and significant factor that if it was intended to be one of such considerations Parliament would not have failed to say so. Indeed we would go further and say that in our view such a provision would pose a practical problem. F Consider, for instance, a situation where a marriage lasted for a long time during which the spouses jointly acquired matrimonial assets, but the marriage was eventually dissolved because one of the spouses committed adultery recently. Now, if the appellant's submission were to be upheld, the implication would be to deny the guilty party his/her share of G the joint matrimonial assets because of adultery committed only in old age and long after the said assets had been acquired. In our view there could be no legal justification for that. As we have amply demonstrated herein before we H think that consideration of the conduct of the party who causes the breakdown of the marriage is relevant only in relation to the acquisition of the matrimonial assets, not in relation to the breakdown of the marriage. On the evidence the matrimonial assets in the present case were acquired jointly by the parties long before the respondent had left the matrimonial home. Thus, whether the respondent was in desertion or whether, as found by the District I
A and the High Courts, she was forced out of the matrimonial home by the appellant's cruelty, that was neither here nor there. It was not relevant for the purpose of considering division of the matrimonial assets, and the learned High Court Judge was perfectly entitled so to hold.
B In the event this appeal cannot succeed, and it is accordingly dismissed with costs.
Appeal dismissed.
C
