agnes sande v dennis sande (46 of 2008) ((46 of 2008)) [2009] MWHC 10 (07 July 2009);

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JUDICIARY

IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
MATRIMONIAL CIVIL CAUSE NUMBER 46 OF 2008


BETWEEN:

AGNESS SANDE……………………………………………...PLAINTIFF

-AND -

BENARD SANDE…………………………………………...DEFENDANT

CORAM:   THE HONOURABLE JUSTICE E. B. TWEA
                  Petitioner present in person
                  Respondnet present if person
                  Mrs Matenkenya – Court Interpreter
                                                                                                           

J U D G M E N T

Twea, J
The parties in this case appeared before this court upon a referral for distribution of matrimonial property after divorce. When I perused the record, I noted that there are two laws applied: Customary law and Islamic rites I directed that I rehear the parties.

The petitioner called three witnesses including herself. The respondent gave evidence in person.
The evidence was not disputed.

It is on record that the petitioner before she met the respondent was a business lady. The respondent approached her and proposed but she refused him. Later the brother of the respondent came to her and told her that he was a good man. It was her evidence that the respondent told her that he was a divorcee and had two children. She too had two children from her previous unions. The respondent was taken to the village of the petitioner and introduced to her parents. It was accepted as a suitor. It was her evidence however that when they left the village the respondent informed her that he had five children. He told her that he had hit to her parents in order to gain acceptance. When she questioned him about the mothers of the children he dismissed the topic.

It was her evidence that she initially lived in Machinjiri while the respondent was in South Africa. He came back when his mother fell ill and joined her. They lived happily until he acquired a house which they moved into in Kanjedza.

It was her evidence that she discovered that the respondent had another wife. He had lied that he was divorced. The other wife sued him in court and later came and took all the property from their house. The respondent started buying new furniture and other necessities which he labeled with his name and date of purchase. She told this court that the respondent was neglecting to provided for her so she started a business as an airtime vender. The respondent was unhappy with her and employed his former wife’s relatives to spy and scorn her to leave the house. She did not.

Eventually the matter was referred to their religious leader where the respondent publicly indicated that he did not want her as a wife. The clergy then decreed a 3 months in house separation when they should not have sexual intercourse. It was the evidence pf PW3 Sheikh Mahomad Osman Mutalika that this period is decreed to allow parties to reconcile, and also to determine whether or not the woman is expecting a child. Should the parties resume conjugal relationship they will be deemed to have reconciled.

The evidence of the petitioner was that the respondent would leave the house to stay at his other wife’s house. He also admitted to other extra marital sexual relations. Further, that he would harass her for conjugal relations but she refused him requesting him that they should go back to the religious leaders for reconciliation which he always referred. She referred his conduct to the religious leaders who in turn cautioned the respondent. It was her evidence that she eventually left the matrimonial house as she could not bear what the respondent was doing.

It is on record that she took some household property when leaving.

The respondent largely, did not dispute the evidence of the petitioner. He contended however, that he suspected that the petitioner was having an affair because he has not found her at home on three occasions. He also refused to accept her explanations. He told this court that after the village ceremony they celebrated their marriage according to Islamic rites. It was therefore his firm belief that all aspects of their marriage had been dealt with. He was surprised that lies wife then went to Court and then that this court was still trying the case.

I have considered the concern raised by the respondent.

It is clear in this case that the parties contracted a customary marriage. There was consent to the marriage form the family of the petitioner and the respondent. There were marriage advocates for each party. It is also clear from their evidence that after their marriage at custom they went to their religion and registered their marriage under the Islamic rites. There is no statute which governs non – Christian marriages for Malawians. It is clear that the Asiatic (Marriage, Divorce and Succession) Act, (Cap. 25:03) of the Laws of Malawi, covers marriages, in Malawi, of non – Christian whether domiciled in Malawi or not. The position at law however, is clear, all marriages other than those under the Marriage Act, or Asiatic (Marriage, Divorce and Succession) Act are governed by the customary law under which they are contracted. All marriages of Malawians or non Malawians who marry under customary law are governed by the customary laws under which their marriages are contracted. The institutions of religion to which they subscribe do not change the status of their marriages as customary law marriages. For those who subscribe to Islamic rites, the position is the same as Malawians of Christian faith under African Marriage (Christian Rites) Registration Act Section 3. The Sheikh or authorities faith leaders may celebrate the marriage at an authorized place in accordance with Islamic rights. This position is supported by the evidence of PW3, Sheikh Muhamad Osman Mutalika who told this court that:

People seek each other, then there is parental consent and then the Bureau (Islamic) as a religious issue. When there is a dispute, the Koran requires settlement within the family. If they cannot settle, their advocates come in. If the advocates cannot settle the matter comes to the Bureau for advise. The Bureau as a religious institution. …They are told what follow as per Islamic”.

It was clear from his evidence that the Bureau would give advise and assist any party that profess the faith whether or not they celebrated their marriage at the Bureau. The basic tenets of one’s faith will dictate ones conduct of ones affairs. In this respect therefore Section 7(2) of Asiatics (Marriage, Divorce, Succession) Act would equally apply to all faith; that is

(2) A Court may ascertain the law of any religion or any custom by any means which it think fit, and may at on information which appears to the Court to be credible though it is not legal evidence, and in case of doubt or uncertainty may decide as the principles of justice, equality, and good conscience may dictate”.

I must point out that Cram J took the same view in Lambat V Ismail Mussa Omar, 1964 – 66 ALR Mal. 511.

The respondent told this Court that he was surprised that the lower Court and this Court entertained the complaint by his wife. In his view, this matter was dealt with and finalized at their mosque by the religious leader. This view is not supported by the evidence of PW3, Sheikh Mutalika. It was his clear evidence, that faith leaders at mosques do not divorce couples. This is done by couples themselves. The faith leaders only come in to help reconcile or advise on proper conduct according to the tenets of Islam. It is in this respect that they were advised to live together but separate for three months. Clearly the respondent failed to live by the tenets of the faith he professes. He, not only took conjugal solace from his other wife, but also had extra marital affairs, harassed his estranged wife and gratified himself openly to her annoyance and dismay. This Court got the impression that it was his contention that since he had informed his wife that he did not want her anymore in her presence and in the presence of their marriage representatives and faith leaders he had therefore divorced her. It should be noted that none of the witnesses testified to the respondent pronouncing or issuing a “talaq” against his wife. It is therefore doubtful whether there was a “divorce” at this stage. In any case I take heed of the view of Coram J, in the Lambat case (supra) page 516:

The parties are not only bound in joint contract. In this country, at least, they must be held to enjoy some status. This seems to be the case in progressive Muslim countries such as Pakistan. The State is entitled to regard a husband and a wife as a family unit; there is more to their relationship than mere contract.
An arbitrary divorce at the instance of the husband in insufficient grounds, indeed where he himself if the wrongdoer”.

This position, on “equality” and “Status” of husband and wife in this country now has Constitutional recognition.

In the present case the respondent nor only lied of his marital status when proposing to her, he also conspired with his brother to do so. He lied to the parents of the petitioner, he wrongfully accused her of having extra marital relationships. Stopped her from doing business, spied on her in her own house, allowed third parties to insult her and generally made it a point to make for feel unwanted in the house. Such conduct would not be approved of by any right – thinking members of the community even co – religionists.

Let me also mention that it is recognized by this court that courts do not have a monopoly of the jurisdiction over divorce. Parties, if they consent, can, by mutual agreement, dissolve their marriage at custom within the families before the village civic authorities or other tribunals, including faith organizations where applicable. Namate V Namate and Mhango 9 MLR 334 at page 337, See also section 39(2) of Traditional Courts (Procedure) Rules. However, if one party does not consent or is aggrieved, that party is at liberty to go to Court. Section 11(4) of the Constitution, makes it clear that any law that costs or purposes to own the jurisdiction of the Courts shall be invalid. Equally religious institutions cannot cost the jurisdiction of the court. The petitioner therefore, was at liberty to come court and the courts have jurisdiction on this and any such case.

In this case the lower court upheld the divorce before the Islamic Bureau. I however, decide to do so. As I said earlier, in this Country, under our Constitution, a summary divorce a husband, more particularly if it is unjustified, would not held to conform to the principles of justice, equality and morality. Every party has a right to be heard, before being condemned. This position was well recognized as far back as the Lambat case (supra).

However, on the evidence before one, I find that it has been established that the respondent not only lied when marrying the petitioner, but he also treated her with contempt so as to make her living in house unbearable. Granted she is the one who left, but the court has to take into account that this was the intention of the respondent, by his conduct, that she should leave the matrimonial home, if at all, we can describe it as such. I would therefore grant her the divorce and I so order.

Pronounced in Open Court this 7th day of July, 2009 at Blantyre.




E. B. Twea
JUDGE