Rebello v Rebello (Mtrimonial Cauuse No 10 of 2005) ((Mtrimonial Cauuse No 10 of 2005)) [2006] MWHC 99 (24 May 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE REGISTRY

MATRIMONIAL CAUSE NO 10 OF 2005


BETWEEN :


JACK REBELLO ………………………………PETITIONER


And


JOSEPHINE REBELLO …………………….RESPONDENT




CORAM : HON. JUSTICE NYIRENDA

Mr Chinula; Counsel for the Petitioner

Mr Kalua; Counsel for the Respondent

Mr S. Baziliyo; Court Interpreter

I.S. Namagonya ; Court Reporter.



J U D G M E N T


HON. NYIRNDA, J.


Jack Rabello, by this Petition seeks the dissolution of his marriage to Josephine Rebello on the ground of adultery. In turn the respondent has cross petitioned for dissolution of the marriage on grounds of the petitioner’s adultery and cruelty. At the moment of trial the petitioner informed the court that in the light of what was contained in the cross petition he was no longer pursuing the petition but that the matter could proceed, if the respondent so desired, on the cross petition.


At this point I was immediately put on guard against the danger of these proceedings being brought in collusion. For that reason I have carefully searched through the documents filed and listened to the testimony in evidence of the one and only witness in the case. I am more than satisfied that there are no traces of collusion. This finding enables me to proceed on to the next consideration that is whether this court has jurisdiction to hear and determine this case. Fortunately, for me both the petitioner and the respondent are domiciled in Malawi and have lived in Malawi since the celebration of their marriage. The marriage itself, as I shall soon turn to, was celebrated in Malawi. I can therefore proceed to deal with this matter on its merits.


Josephine and Jack were married at the District Commissioners Office in Lilongwe in that Office’s capacity as Registrar of Marriages. This was on the 31st of January 1992. A marriage certificate has been exhibited as evidence thereof. The petitioner and the respondent lived and cohabited in the City of Lilongwe where a child was born between them on the 9th June 1992 and was named Dylan Rebello.


In her testimony in court the respondent spoke of a union that started beautifully until sometime in 2004 when she started having problems with the petitioner. She did not know why the petitioner was giving her problem until she soon discovered that he was having an affair with another woman. She says she decided to confront the petitioner on the matter but could not get the problem resolved. She eventually called in the petitioner’s brother to mediate. That did not help either. To the contrary the petitioner made it clear to the respondent that he was not interested in her and was infact in the process of seeking divorce but that his lawyer had told him he did not have any legal basis as yet.


In the course of time the petitioner told the respondent that they should both move out of the house in Area 49 where they were staying and each one would go their way. The house in Area 49 which belongs to both of them was to be rented out and the rent would be shared between them. That actually happened in April 2005. The petitioner went to live in Area 47 and the respondent went to live in Area 11 within the City of Lilongwe. The respondent lives with another woman Tina Mlozi. It is on account of the petitioner living with Tina Mlozi that the respondent’s case for adultery is premised.


As for cruelty the respondent has talked about an incident that happened at Alexander, a popular drinking joint within the City of Lilongwe. On a certain day in August 2005 the respondent and some friend went to Alexander to celebrate one of the friend’s birthday. They found the petitioner at Alexander. It is said when he saw her he walked out of place but soon came back. When he came back he went straight for the respondent and grabbed her by the neck. He dragged her and hit her head against a glass door, shattering the door and severely injuring the respondent in the process. The respondent was hospitalized for three days. When she came out of hospital she communicated with the petitioner for a short while. She stopped talking to the petitioner because he sent her a message that she should stop talking to him. They have since stopped talking to each other.


As a result of the incident at Alexander the matter went to police who eventually prosecuted the petitioner in Criminal Case No 141 of 2005 on a charge of assault occasioning actual bodily harm contrary to section 254 of the Penal Code. At the close of the proceedings the petitioner was discharged under section 337 (b) of the Criminal Procedure and Evidence Code on the condition that he does not commit any other offence of a similar nature in twelve months from the date of the Order. A discharge under section 337(b) is made after an accused has been convicted of an offence but that the court thinks the accused should not be given any penalty on conditions set by the court. In the instant case the condition was that the accused should not commit an offence of a similar nature in twelve months.


The Cross Petition is virtually undefended. There was a brief attempt to cross examine the respondent on the actual out come of the criminal case. What is true is that the charge of assault occasioning actual bodily harm was established against the petitioner. From what the respondent has told this court it is also more clear that she suffered a heavy and brutal assault at the hand of the petitioner. What I do not understand myself is why the petitioner did this diabolical act at a time when he had already rejected and discharged the respondent. He was already himself living with another woman having blatantly told the respondent that he didn’t want her in his life. As a matter of fact the petitioner, I must say, should consider himself lucky to have gone away without a custodial sentence in the criminal case.


The evidence in this case speaks more than clear that the petitioner is having an adulterous association with one Tina Mlozi. They are actually living together. The question of adultery is therefore not from circumstantial evidence. It is to me from direct evidence. As to cruelty, again the facts speak for themselves. I need not belabour myself with case authorities on this point. In all there need not be splitting of hairs on the question of the petitioners adultery and cruelty. I find that these matters are more than established. I therefore grant the respondent decree nisi of divorce on the grounds of adultery and cruelty.


The respondent tells the court that the child stayed with her for a while until she had problems with her motor vehicle. The child then moved to stay with the petitioner where he still is. I did not get the impression that there is much controversy with regard to the custody of the child. I grant the respondent and the petitioner joint custody of the child. In the interest of the child and so that there is no doubt regarding maintenance, I order that the petitioner shall maintain the child Dylan Rebello.


The question of the respondent’s maintenance has not been dealt with by her testimony. The respondent is working and no doubt trying to send for herself. Maybe for that reason she does not insist on her own maintenance. I therefore make no order for the maintenance of the respondent.


What is evident in the respondent’s testimony is that there is joint ownership of the house in Area 49. Both the respondent and the petition have made contribution towards the purchase of the house. The indication I get is that the petitioner contributed more. In a marriage situation however it is not exactly how much a spouse contributed to matrimonial property. A court will consider what would be equitable in the circumstances of the case. It is ordered in this respect that the house in Area 49 be sold and the proceeds of the sale be shared in equal amounts between the respondent and the petitioner. With regard to the remaining matrimonial property I order that such be established before the Assistant Registrar and distributed as he deems appropriate.


The petitioner shall bear costs of these proceedings.



MADE in Open Court at Lilongwe this 24th day of May, 2006.







A.K.C. Nyirenda

J U D G E