Mustafa, Makame and Omar, JJ.A.: This appeal is conerned with the custody of an infant male child. The husband, who is the appellant in this appeal, had applied by way of Chamber Summons to a District Magistrate's court in Dar es Salaam for an order of I custody of the child to be made in his favour. He succeeded in the
MUSTAFA JJA, MAKAME JJA, OMAR JJA
District Magistrate's Court, but that decision was overturned in the High Court on an A appeal by the wife, who then obtained an order of custody in her favour. The appellant is appealing from the decision of the High Court.
Before us Mr. Lakha appeared for the appellant husband and Mr. Kesaria, with Mr. B Marando, appeared for the respondent wife.
We will begin with the short facts of the case. It would seem that the parties who reside in Dar es Salaam, were married in 1980. There are two children of the marriage, one is now about 6 years old and the other being Keval, the subject of this appeal, is two years C old. The wife had had occasion to stay away for 2 years from the husband, from June 1982 to May, 1984, before the birth of Keval. The wife was supposed to have gone to her father in Tanga for a week or so, but stayed nearly 2 years. The wife had left her child with the husband during all that period.
The wife again left Dar es Salaam on 1.5.88 for Tanga, with the child Keval, with the D permission of the husband, for a stay with her father for a short period, a month or so! The wife has refused to return with the child Keval to the matrimonial home in Dar es Salaam, until certain conditions were met, namely, that the husband should obtain E accommodation on his own, and not live with his parents and his parents' family. As a result the husband applied for custody of the child Keval.
At the Magistrate's Court the application of the husband was supported by an affidavit sworn to by the husband alleging acts of commission or omission on the part of the wife F to indicate that she was not a proper or fit person to have custody of the child Keval. The wife filed a counter-affidavit. However the counter-affidavit surprisingly enough, was not sworn to by the wife, but by Mr. Marando, who was acting for her in the cause as G her advocate. The counter-affidavit contained allegations of ill-treatment of her by the husband, her mother-in-law and sisters-in-law. To the counter-affidavit the husband filed an affidavit in reply. At the hearing of the application the husband also testified, and called one witness Chohan. The wife did not testify.
Before us Mr. Lakha submitted that the counter-affidavit should not be looked at, as it H was pure hearsay. In that event the only evidence available to the court was that deponed to by the husband by way of his affidavits and the testimony given by him and his witness. However no objection was raised by the appellant at the trial court to the I admissibility of the counter-affidavit on the ground that it was hearsay or on any other ground. If such objection
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had been raised, we have no doubt a proper counter-affidavit would have been A provided, after an adjournment, perhaps on terms, which could hardly have been refused. In the result the court, the parties and their advocates conducted, argued and decided the matter on the allegations deponed to in the affidavits and counter-affidavit. B Similarly on first appeal, the High Court decided the appeal on the basis that the matters deponed to in the counter-affidavit were validly before the court. Both the courts below had acted on that basis. The wife had certainly good ground for believing, and was so led by the way the appellant conducted the case to believe, that the counter-affidavit was in order and had been accepted as such and she had conducted her case on that basis. C
The proper forum for raising the issue of hearsay was at the Magistrate's Court. In view of the course the matter has taken, we do not think at this stage we can allow this issue to be raised. The appellant would on the basis of something in the nature of an equitable D estoppel be barred from doing so. It is a civil matter, and the appellant had waived his right to object to the admissibility of hearsay evidence in this appeal.
The wife on 28/4/86 was physically assaulted by the husband. The wife apparently left the house after the assault. The husband and wife were reconciled by the members of E their Hindu Community and the wife was then "allowed to enter the petitioner's (husband) house," according to the evidence of the husband's witness Chohan. On 1.5.88 the wife left the matrimonial home and went to her father in Tanga with the child Keval and has refused to return unless the husband lived separately from his parents and family. F
The wife had alleged that she was not able to suffer any longer the indignity and cruelty meted on her by the husband's mother and sisters.
Since the trial court and the High Court had differed in their conclusions on the evidence G adduced by the parties, we will have a look at the facts ourselves.
Mr. Lakha at the outset of the appeal conceded that in terms of the Law of Marriage Act in Tanzania there is a rebuttable presumption that an infant below the age of seven H should be with the mother. It is also common ground that the most important factor in custody proceedings is the welfare of the child.
Mr. Lakha sought to rebut the presumption in favour of the mother on certain grounds. He submitted, inter alia, I
(1) That the elder child is still with the husband and in his
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custody, and that indicates that he is a proper person to look after infant children. He A wants both the children under his custody to keep them together, and not to have them separated.
(2) That the wife had been cruel to the infant Keval and that the husband has B so alleged. He referred to a paragraph in the husband's affidavit reading "On 28.4.86 Keval was crying from 8.30 to 9.00 am and despite my instructions she did not pull the cradle and instead she absconded from the matrimonial home without the child" C
(3) The wife is illiterate and therefore incapable or unsuitable as a mother as she committed an error, due to her illiteracy, in giving the age of Keval to a doctor.
(4) The wife had, from June, 1982 to May, 1984 abandoned the elder child D who was looked after by the husband's mother during that period.
(5) The accommodation in the wife's father's house in Tanga is insufficient E and worse than that provided by the husband's parents' house.
We will deal with the allegation of cruelty against the child Keval made by the husband. Even if we accept as true the allegation made by the husband about what has happened F on 28.4.86, we are not persuaded that that incident established cruelty on the part of the wife. From the evidence supplied by the affidavits, counter-affidavit and testimony given, it seemed that on 28.4.86 the husband assaulted the wife who left the house and G was later "allowed to enter the petitioner's (husband') house" after they were reconciled by members of their community. It would seem that there must have been some quarrel between the spouses before, that the wife had left the baby crying in the cradle without moving it to and fro. If that was "cruelty", which is open to doubt, we think the husband H was equally "cruel". He could have himself moved the cradle to lull the child, instead of merely instructing the wife to do so. If leaving the child in a cradle to cry for half and hour was cruelty, then we think both were "cruel". That allegation, however, did not in our view establish that the wife was cruel to the child Keval on 28.4.86. I
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It would have been ideal to keep the two children together if possible, but that factor has A no great or particular significance in dealing with the custody of Keval. We do not think that literacy or illiteracy is a proper criterion for assessing the sustability of a woman as a mother. There was no evidence as to the relative space of the Dar es Salaam or Tanga accommodation, and that need not concern us. We do not think that B the wife, in view of her allegations as to the living conditions she had had to endure at the husband's parents' house, was wrong to have insisted that she could not stay with the husband in the latter's parents' home. C
We do not think that the grounds relied on by Mr. Lakha could rebut the presumption in the wife's favour. We think that the wife should have custody of the child Keval in the circumstance of this case. An infant child of two should be with the mother, unless there are very strong reasons to the contrary. No such reasons exist here.
The High Court, on first appeal, made an order for maintenance of the child Keval in the D sum of Shs.3,000/= per month to be paid by the husband. Both Mr. Lakha and Mr. Kesaria agree that, if the custody of Keval was given to the wife, an order for maintenance was in order. However Mr. Lakha submitted that the sum fixed was manifestly excessive, and was not supportable on any evidence. There was no Einvestigation as to means before the order was made. There was some evidence by the husband that his monthly net income was shs. 3,200/=. Both counsel accept that was correct. On that basis we think that the sum should be shs. 1,200/= per month and we accordingly set aside the sum of shs. 3,000/= per month made by the High Court and F substitute therefore a sum of shs. 1,200/ per month.
Apart therefore from reducing the order of maintenance from shs. 3,000/= to shs. 1,200/= per month the appeal is dismissed with costs. G
Appeal dismissed.
A
