Court name
High Court General Division
Case number
Civil Cause 11 of 2005

Datch v Datch & Anor. (Civil Cause 11 of 2005) [2008] MWHC 24 (22 January 2008);

Law report citations
Media neutral citation
[2008] MWHC 24













JUDICIARY











IN THE HIGH COURT OF MALAWI



PRINCIPAL REGISTRY



CIVIL CAUSE NUMBER 11 OF 2005











BETWEEN:







CHRISTINA DATCH ………………………………..………PLAINTIFF







- AND -










DANIEL
DATCH …………………………...…………….RESPONDENT


LIZZIE
MAGELA ………………………..………..CO – RESPONDENT





CORAM: THE
HONOURABLE MR JUSTICE J S MANYUNGWA


Mr
Tembo, of Counsel, for the plaintiff


The
Respondent – Absent


Mr
Jere – Court Interpreter







J U D G E M E N T







Manyungwa, J.



This is a petition for the dissolution of the marriage
between the petitioner and the respondent on the grounds that the
respondent
was committing adultery with the co – respondent. The
petitioner in these proceedings is Christina Datch and she prays to
have
her marriage to Daniel Datch, the respondent, herein dissolved
on the grounds of adultery. The petitioner was represented by Mr

Maxwell Tembo, while the respondent neither appeared nor forwarded
any reason as to why he could not appear, so I ordered after
being
satisfied that there was due service, for the trial to proceed. The
record however shows that the respondent was represented
by Lawson
and Company but on the date of the hearing the lawyers did not show
up.







The petitioner and the respondent were married under the
Marriage Act Chapter 25:01 of the Laws of Malawi at the Office of the
Registrar
of Marriages at Blantyre in the Republic of Malawi on 9
th
March 2001 under Certificate number 5306 and after the celebration of
the said marriage, the two lived and cohabited at Nkolokosa
house
number KS312. There is one issue of the marriage a daughter namely,
Yankho Datch who was born on 15
th
September 2001. Both the petitioner and the respondent are Malawians
resident and domiciled in Malawi and as such this court has
undoubted
jurisdiction to hear and determine the petition. I am satisfied on
the evidence on record that there have been no previous
proceedings
in the High Court or any court in Malawi with reference to the
marriage either by the petitioner or the respondent.
This being an
undefended matter I must also satisfy myself that there is no
collusion between the parties. I must say that I
am satisfied on the
evidence on record that there is no such collusion between the
parties. This is important bearing in mind,
and fearing that the
danger of collusion is greater in uncontested cases than contested
ones.







The petitioner grounds her divorce on grounds of
adultery. The evidence in support of the petition is that after the
celebration
of the marriage the couple lived at Nkolokosa, and that
by the time of the hearing the two parties had separated in August,
2002.
The petitioner told the court that she was seeking divorce
against the respondent because the respondent had an affair with the

co – respondent. The petitioner stated that in 2003, there was a
scene, when she found the respondent with the co – respondent
at
Moneymen Club in Blantyre. The petitioner further testified that at
the time of the hearing of these proceedings the respondent
and the
co – respondent were staying together at Nkolokosa at house number
KS312. The petitioner further stated that at the
time of the hearing
the respondent was only assisting her with school fees in the amount
of MK6, 500.00 which was not enough as
the petitioner spends about
MK30, 000.00 on the child alone per month. The petitioner therefore
prayed for an order of maintenance
of the child, and that her
marriage to the respondent be dissolved and that she be given custody
of the child. The petitioner
therefore further told the court that
the respondent works for National Bank of Malawi, Head Office in the
Finance Department,
whilst she works in Head Office Operations
Department.







This was the evidence before me and despite the fact
that the respondent and co – respondent were served with the notice
of petition
and notice of hearing on two occasions, they never
bothered to attend the hearing nor gave any reason as to why they
could not
attend.







THE LAW



Adultery is defined as sexual intercourse between two
persons of whom one or both are married but who are not married to
each other.
In order that adultery should constitute a good ground
for a complaint therefore, the respondent must have had sexual
intercourse
with someone other than the petitioner since the
celebration of the marriage. According to the case of
Bastable
V Bastable
1
the standard of proof is that of a degree of probability commensurate
with the occasion. Further Section 5 of the divorce Act
provides
for the grounds for divorce. The said section is in the following
terms:-







S5 “A petition for divorce may be presented to the court



either by the husband or the wife on the ground that




  1. Has since the celebration of the marriage committed adultery or…”








In the case of Munthali V
Munthali and Kalilani
2
the petitioner one Felix Munthali sought a divorce from his wife
Catherine Munthali, the respondent herein on the ground of her

adultery with the co – respondent namely Gerald Kalilani. The
facts of the case were that at the time when the parties’ marriage

was troubled and they frequently quarrelled, the petitioner
discovered a letter written by his wife, the respondent, to the co
–
respondent in which she appeared to refer to past acts of adultery
with him and addressed him in loving terms, though not by
name. When
confronted with the letter, she admitted having written it, said that
she was in love with the co –respondent and
confessed to having
committed adultery with him on several occasions. The petitioner
told her that the marriage was at an end
and she immediately returned
to her parents’ home.







The respondent entered an appearance to the petition in
which she stated that she did not wish to oppose the granting of the
decree.
At the hearing, the petitioner, who was unrepresented, did
not propose to call any evidence in corroboration of his own, but
when
advised by the court to do so, called the respondent as a
witness and she repeated on oath her previous admissions and
confession
of adultery. The court considered the proper procedures
to be followed in weighing the evidence in the absence of any further
independent testimony as to the ground of the petition and also
considered the standard of proof to be applied. The court in that

case considered the provisions of Section 7 of the divorce Act,
Chapter 25:04 which provides:-







S7(1) “On a petition for divorce it shall be the duty of the



court to inquire, so far as it reasonably can, into the facts alleged
and where whether has been any connivance or condonation
on the part
of the petitioner and whether any collusion exists between the
parties and also to inquire into any counter – charge
which is made
against the petitioner.




  1. If the court is satisfied on the evidence that –




    1. the case for the petitioner has been proved



    2. where the ground for the petition is adultery, the petitioner has
      not in any manner been accessory to, or connived at, or condoned

      the adultery, or where the ground of the petition is cruelty the
      petitioner has not condoned.”









In delivering his judgement, Justice Mead had this to
say at page 102:



“The wording of the Section is the same as the wording of Section 4
of the Matrimonial Causes Act 1950 of England. In considering
the
degree of proof of adultery required to satisfy a court that the
petitioner’s case had been proved, Hudson L. J. said in
Galler
V Galler
1
after considering the judgements of the Divisional Court in Fairman
V Fairman
2
and the speeches of the House of Lords in Preston – Jones
V Preston - Jones
3



‘I think the courts of this country may be taken to have come down
on the side of the view that there was no distinction to be
drawn
between the word ‘satisfied’ standing alone and the word
‘satisfied’ accompanied by the words ‘proof beyond reasonable

doubt’…



In divorce as in crime, the court has to be satisfied beyond
reasonable doubt because as was stated by Lord Mac Dermott in Preston
– Jones V Preston - Jones
4



‘… the true reason, as it seems to me why both [divorce and
criminal jurisdiction] accept the same general standard – proof

beyond reasonable doubt – lies not in any analogy, but in the
gravity and public importance of the issues with which each is

concerned’



With respect, I am in agreement with the conclusions of learned Lord
Justice.”







In the instant case the respondent despite being served
with the notice of the petition and despite his indication that he
wished
to defend the proceedings neither appeared at the hearing nor
forwarded any reason as to why he failed to attend. Even his lawyer,

who was said to have been seen within the court premises on the date
of the hearing bothered not to attend, hence the matter proceeded
to
trial.







In the case of Pidduck V
Pidduck
1
it was held that a memorandum of appearance signed by a co –
respondent that he did not intend to defend the case by denying
a
charge of adultery made against him amounted to a confession of
adultery. In the instant case the respondent entered an appearance

but did not bother to appear at the hearing nor forward any reason
why he was absent. In any case it would appear clear to me
that the
respondent was not really keen to defend his matter.







On the evidence before me especially considering that at
the time of the hearing of these proceedings the respondent and the
co
– respondent were living together in the same house in
Nkolokosa, I am satisfied that the petitioner has proved her case
against
the respondent and co – respondent beyond reasonable doubt
and that therefore adultery is proved. Further I am satisfied that

the petitioner has not in any manner been accessory to, or connived
at, or condoned the adultery. There is, in my view no bar
to the
petitioner being granted the reliefs sought. Accordingly, I
pronounce and grant the petitioner a decree
nisi
for divorce.







Further, I also order that the respondent is responsible
for the education and general maintenance of the only issue of the
marriage,
namely Yankho Datch until the said child finishes her
education. Further, I do grant custody of the child to the
petitioner, but
that the respondent should have reasonable access to
the said child, for example during school holidays, and over week –
ends.
Apart from the respondent being responsible for school fees
and other needs of the child I order that he pays a monthly MK20,
000.00 for maintainance of the child until the child is through with
her education.







As regards costs, each party shall bear its own costs.







Pronounced in Open Court
at Principal Registry, this 23
rd
day of January, 2008.















Joselph S Manyungwa



JUDGE




































1
Bastable V Bastable
[1968] AIIER 701




2
Munthali V Munthali and Kalilani
8 MLR 101




1
Galler V Galler
[1954] 1AllER 450




2
Fairman V Fairman
[1949] P 341




3
Preston – Jones VPreston – Jones
[1951] AC 391




4
Preston – Jones V Preston – Jones
(ibid)




1
Pidduck V Pidduck [1961]
1WLR 1313 at 1315