IN THE HIGH COURT OF MALAWI
MATRIMONIAL CAUSE NO. 3 OF 2001
CORAM: THE HON. MR JUSTICE F.E. KAPANDA
Mr Mzumara, of Counsel for the Petitioner
Mr Tsingano, of Counsel for the Respondent
Mrs Moyo, Official Interpreter/Recording Officer
Date of hearing : 10th August 2001
Date of judgment : 10th December 2001
The Petitioner, Prisca Kulisewa, is asking for the dissolution of her
marriage to the Respondent on the grounds of the Respondents
adultery with the Co-Respondent. It is also the prayer of the
Petitioner that her said marriage to the Respondent be dissolved on
the grounds of cruelty and desertion.
Moreover, the Petitioner has made the following additional prayers:-
(a) That she be granted custody of the children of the marriage.
(b) That she be given a share of the matrimonial property.
(c) That the Respondent should be ordered to pay to the children
(d) That the Respondent and Co-Respondent be condemned to pay the
costs of this petition, and
(e) That the court should give her such further and other relief as
may be just.
The Respondent acknowledged service of the Petition. But it is noted
that both the Respondent and the Co-Respondent did not file
to the Petition in these divorce proceedings. Actually, the
Respondent, though represented by Counsel, neither cross examined
Petitioner on her evidence in support of her petition nor did he
offer any evidence of his own regarding this Petition. I will
upon these observations later in this judgment when dealing with the
question of whether or not there has been collusion
Petitioner and the Respondent.
As already indicated there are three grounds upon which this petition
for divorce is premised viz adultery, cruelty and desertion.
relevant parts of this petition, including the prayers being sought,
are as follows:-
1. That on 20th October 1994 the Petitioner Prisca Kulisewa then
Prisca Chirombo Mbewe (Spinister) was lawfully married to Joexls
Kulisewa (hereinafter called the respondent) at Mwanza.
2. That after the said marriage the Respondent and the Petitioner
lived and co-habited together at Mwanza.
3. That both Petitioner and Respondent reside and are domiciled in
4. That there are children of the family P. K. born on [day/month]
1995 and O. K. born on [day/month] 1997.
5. That there have been no previous proceedings in the High Court or
Subordinate Court with reference to the said marriage either
by or on
behalf of the Petitioner or the Respondent.
6. That ever since the celebration of the marriage the Respondent
who is a man of ungovernable temper has treated the Petitioner
cruelty and that the Petitioner has suffered injury to her health.
(a) that the Respondent has constantly been sleeping out with other
(b) that the Respondent refuses the Petitioner to live in the
(c) that the Respondent through his sister and brother harassed the
Petitioner up to the extent of entering the matrimonial bedroom
snatched money from the Petitioners handbag and the key for the
(d) that the Respondent told both the Police and the Church that he
does not need the Petitioner in his home.
(e) that on 1st April 2000 the Petitioner found the Respondent with a
certain Police Woman of Mwanza Station (who the Respondent
(f) that the Respondent has constantly abstained from the Petitioner
thereby denying her conjugal rights.
7. That the Respondent chased away the Petitioner on 27th April, 2000
from the matrimonial house telling her that he does not want
anymore. That since the celebration of the marriage the Respondent
has without justifiable cause repeatedly beaten up the Petitioner
8. That the Respondent is generally of ungovernable temper.
9. That the Petitioner started seeing changes in her husband in the
way that he was seen in the company of unmarried women.
10. That on 1st April 2000 the Petitioner found the Respondent with a
woman Constable of Mwanza Police Station. The matter was taken
then Officer-in-Charge of Mwanza Police Station who summoned the
Respondent to a meeting. It was at the very same meeting
Respondent announced that he does not need the Petitioner and that he
will take the Co-Respondent.
11. That the Respondent has committed adultery with the Co-respondent
and various other women not known to the Petitioner.
Particulars of Adultery
(a) immediately after chasing the Petitioner from the matrimonial
home in Mwanza the Respondent has been cohabiting with the
as a husband and wife todate.
(b) the Respondent has categorically challenged and told many people
including the Petitioners sister Mrs Gomani at Sobo, Mwanza
in the presence of the Officer-in-Charge and Church elders that the
Respondent is now legally married to the Co-respondent.
(c) the Respondent has been seen in the company of the Co-respondent
at the Office and at the matrimonial home.
(d) the Co-respondent has now a baby boy with the Respondent as the
responsible putative father.
(e) that the Petitioner has not in any way been accessory to connived
or condoned the Respondents cruelty or desertion.
12. The Petitioner therefore humbly prays to this honourable:-
(a) that the marriage between the Petitioner and the Respondent be
(b) that the Petitioner be granted custody of the said children of
(c) that the Petitioner be given the share of all the matrimonial
(d) that the Respondent be ordered to pay to the children maintenance
(e) that the Respondent and Co-respondent be condemned in costs of
(f) that the Petitioner may have such further and other relief as may
I wish to point out that I have not corrected any grammatical errors,
if there are any, in the petition herein. The Respondent, despite
acknowledging service of the Petition has not filed any answer to
this Petition. Thus the petition is for all intents undefended.
The Petitioner was the only person who testified in these
proceedings. It was her testimony that she is a teacher by profession
that she is currently teaching at Ndirande Community Day
It was her further testimony that the Respondent is her husband and
to this end she produced a Certificate of Marriage to prove her
marriage to the Respondent. The said marriage certificate, marked as
exhibit P1B, shows that the Petitioner and the Respondent got
on 20th October 1994 at the District Commissions office at Mwanza
The Petitioner further testified that she, and the Respondent, are
blessed with two children. It was further given in evidence that
two children are living with her. The Petitioner further told this
court that she wants her marriage dissolved on the ground
because the Respondent has married another woman, i.e. the
Co-Respondent Sellina Mphamba, and that the Respondent and
Co-respondent are living together as husband and wife. It was also
her testimony that the Respondent has a male child with the
The Petitioner further testified that she was chased from the
matrimonial home in April 2000 and since then she has been living in
a rented house at Ndirande. It was further given in evidence, by the
Petitioner, that she was beaten and chased from the matrimonial
in Mwnza, after she found the Respondent in the company of the
Co-Respondent. The Petitioner further told this court that the
husband made her travel to Blantyre from Mwanza, at night, during the
time she was chased from the said matrimonial home.
The Petitioner was not cross examined. It therefore follows that her
testimony is uncontradicted and unchallenged. Consequently the
evidence herein will be treated as correct for the purposes of this
Issue for Determination
There is only one issue for determination in these proceedings and
the question that arises, and falls to be decided is whether or
the marriage between the Petitioner and the Respondent should be
dissolved on the grounds indicated in the petition herein.
note that the foregoing question will have to be determined on the
basis of the evidence on record and of course the relevant
Law and Findings
As already indicated the Respondent did not file an answer to the
petition herein. It therefore follows that, notwithstanding the
appearance of Counsel on behalf of the Respondent, this case is
undefended. In the circumstances, as required by law, I have warned
myself about the danger of collusion in petitions that are not
defended but I am satisfied, on the evidence on record, that there
no collusion in the presentation or prosecution of this petition.
Domicile and/or Jurisdiction
It is trite law that a court will only assume jurisdiction in
matrimonial proceedings if it is satisfied that the parties are
within the jurisdiction. I am convinced, in the light of the
evidence on record, that both the Petitioner and the Respondent are
domiciled in Malawi. This court, therefore, has jurisdiction to
entertain these divorce proceedings.
The position of the law, with regard to proof of the matrimonial
offence, is that the standard of proof is like that in all civil
matters actions i.e. its proof on preponderance of probabilities -
see the case of Maclune -vs- Maclune 9 MLR 409. In this regard
also mindful of the often repeated pronouncement of the court that
adultery is committed in private thus it is not always proved
direct evidence. Indeed, it is very rare that people will be found
committing adultery in flagiranto delicto. I will, therefore,
making my findings on the question of adultery, be mindful of the
observations made above.
Further, I have reminded myself that where adultery is a ground upon
which a party is seeking divorce it is incumbent upon a court
enquire whether the Petitioner has not in any manner been accessory
to, or connived at, or condoned the adultery. This court is
that the Petitioner has not in any manner been accessory to, or
connived at, or indeed condoned the Respondents adultery
Co-Respondent. Finally, it is the considered judgment of this court
that the petition has not been presented or prosecuted
with the Respondent.
In the instant case I find that the Petitioner has proved that the
Respondent has committed adultery with Sellina Mphamba. I am of
view because where a man and a woman are living together, like the
Respondent has been doing with the Co-Respondent, it would
and reasonable to infer, in the absence of direct evidence, that the
Respondent has committed adultery. Moreover, it must
be observed that
there is evidence that the Respondent has a child with the
Co-Respondent. As a matter of fact this has not been
disputed by the
Respondent. Is there any better evidence of adultery a court would be
looking for than what there is in the instant
case? This court is
satisfied that on the unchallenged evidence of the Petitioner, to the
effect that the Respondent has a child
with the Co-Respondent, the
Petitioner has proved to the requisite standard that the Respondent
has committed adultery with, Sellina
Mphamba, the Co-Respondent.
Further, the failure by the Respondent to defend this petition is
enough corroboration of the evidence
of the Petitioner that the
Respondent has committed adultery with the Co-Respondent (Njikho -vs-
Njikho Matrimonial Cause No. 828
of 1996 [unreported] per Unyolo, J.
as he then was).
Consequently, I find that the Respondent is guilty of the matrimonial
offence of adultery. This court finds no reason why it should
grant the Petitioner the relief she is seeking of the dissolution of
her marriage on the ground of, inter alia, the Respondents
Regarding the issue of cruelty, raised in the petition, it must be
pointed out that same is established by showing conduct, actual
probable, threatening the other spouses mental or bodily health
and the court never looks at mere abuses and altercations normal
any marriage but a threat to health, mental or bodily, actual or
perceived. The case of Malinki -vs- Malinki (1975-77)8 MLR 141
very instructive on the observations made above. Further, I wish to
note that the case of Kamlangira -vs- Kamlangira 6 ALR (M)
349 is for
the proposition that one act of cruelty may be sufficient to prove
cruelty and therefore such act of cruelty can move
a court to grant a
Turning to the case before me I am satisfied that, on the undisputed
evidence on record, the Petitioner has proved the allegation
cruelty against the Respondent. The Petitioner was physically
assaulted. This one act of violence definitely affected her physical
well being. In the premises cruelty has been established and I would,
therefore, not hesitate to grant the Petitioner the relief
she is seeking of the dissolution of her marriage on the ground of,
among other grounds, cruelty.
Finally, it is observed that the Petitioner is further seeking the
dissolution of her marriage on the ground of desertion. It is
undeniable fact, shown by the unchallenged evidence on record, that
the Petitioner was chased from the matrimonial house. This,
amounted to constructive desertion by the Respondent thus this court
would perfectly be entitled to, and I hereby, grant
the relief of dissolution of her marriage on the ground of desertion.
Following from the observations, and findings, made above a decree
nisi for divorce is therefore granted to the Petitioner and the
Respondent is condemned to pay the costs of, and occasioned by, these
Custody and maintenance of children;
distribution of matrimonial property
The Petitioner has prayed, as shown in the petition, that she should
be given custody of the two children of the marriage. It is
prayer that the Respondent should be ordered, by this court, to pay
to the said children maintenance expenses. Moreover,
is asking this court to order that she be given a share of all the
matrimonial property. I notice that the Petitioner
did not offer any
evidence on these two prayers. Whether it was deliberate I do not
know but it can safely be assumed that these
prayers have not been
abandoned. Indeed, in any event the court must adjudicate upon these
matters following the dissolution of the
marriage between the
Petitioner and the Respondent but the court can not do so without
Thus the question concerning the custody and maintenance of the two
children; and the distribution of matrimonial property, should
dealt with in chambers and in a separate application. It is so
Pronounced in open Court this 10th day of December 2001 at the
Principal Registry of the High Court, Blantyre.