Court name
High Court General Division
Case number
Matrimonial Cause 1 of 2000

Badat v Badat & Anor. (Matrimonial Cause 1 of 2000) [2001] MWHC 74 (17 September 2001);

Law report citations
Media neutral citation
[2001] MWHC 74






IN THE HIGH COURT OF
MALAWI


LILONGWE
REGISTRY


MATRIMONIAL
CAUSE NO 1 OF 2000



BETWEEN








PATRICIA BADAT (FEMALE)
………………………….PETITIONER





-and-





IQUBAL BADAT (MALE)
…………………...………….RESPONDENT





AND





CAROLINE GOSSAT
………………………………CO-RESPONDENT











CORAM
: NYIRENDA, J.


For The Petitioner; Chilenga


Respondent, Absent,
unrepresented


Co-respondent, absent, unrepresented.








J U D G M E N T






HONOURABLE
JUSTICE NYIRENDA





The petitioner,
Patricia Badat, nee Patricia Kumitsonyo, by her petition supported by
her own affidavit seeks the dissolution of
her marriage to the
respondent Iqubal Badat on the grounds of the respondent’s adultery
with the co-respondent and also on the
ground of the respondents
desertion.





The
petitioner and the respondent contracted their marriage at the office
of The District Commissioner Ntcheu on the 8
th
of October 1993. The petitioner comes from Kambuku village,
Traditional Authority Tambala in Ntcheu District while the respondent

comes from Chikwasa village, Traditional Authority Kaphuka in Dedza
District. Both the petitioner and the respondent are domiciled
in
Malawi. After the celebration of their marriage the two lived and
cohabited at divers places in Malawi but mostly in the city
of
Lilongwe. I am satisfied that I have jurisdiction to determine the
petition.





The respondent is
absent and undefended. As a matter of fact the petition is
undefended. Despite due service on him of all
the relevant process
the respondent has chosen not to defend the petition. I have warned
myself of the dangers of collusion.
I find nothing before me to
suggest that there is collusion. I will thus proceed to determine
the petition.





Resulting from their
cohabitation the petitioner and the respondent have issue;







  1. Cicera Badat born on the 14th
    May 1984 and








  1. Zackie Badat born on the 12th
    of September 1987.






By its nature adultery
is not committed in the open. Evidence in support of adultery is
therefore usually circumstantial except
in those rare cases where the
culprits are caught in the act. The petitioners affidavit states
that from about April 1994 to
this moment the respondent has
habitually committed adultery with the co-respondent at divers places
in Malawi and the United Kingdom.
In substantiating her affidavit
the petitioner told the court that from about April 1994 the
respondent turned his affection to
the co-respondent whom he was
usually found with day time and night time at divers places in
compromising circumstances. The petitioner
cited Gold Club in the
city of Lilongwe as one such place where she personally found the two
merry making. She approached the
respondent and asked him about his
relationship with the co-respondent. The respondent admitted that
he was having an affair
with the co-respondent and that there was
nothing he would do about it. The petitioner says since that time
they have never lived
as a family. The respondent was perpetually
away from the matrimonial home. When the co-respondent migrated to
the United
Kingdom two years ago, the respondent has been out to the
United Kingdom several times to be with the co-respondent. He
continues
to do so to this date.








From what the
petitioner has said in court in support of her petition it quite
clear to me that the respondent has lost affection
for the petitioner
on account of his love for the co-respondent. It would be absurd to
suggest otherwise than conclude that the
respondent is deeply in an
adulterous association with the co-respondent. I therefore find the
petition proved on the ground
of adultery to my satisfaction. Having
so found it is not necessary I discuss the issue of constructive
desertion. Upon a finding
of adultery and there being no bar to
prevent me decreeing on the petition, I pronounced a DECREE NISI of
divorce.





The petitioner seeks
the joint custody of the two children of the marriage. The children
have always stayed with the petitioner.
By praying for joint custody
the petitioner is simply being humane and extending an arm to the
respondent in the welfare of the
children. I grant the prayer for
joint custody. If there be need to draw up any further detail for
such joint custody, that can
be dealt with in chambers.





The issue of
maintenance is also reserved for determination in chambers.





The respondent and the
co-respondent are condemned in costs of the proceedings.





Pronounced
in Open Court at Lilongwe this 18
th
day of September 2001.














A.K.J. Nyirenda

J U D G E