Family law

ABDULRAHMAN SALIM MSANGI v MUNIRA MARGARET 1984 TLR 133
The appellant and respondent were married in 1975 according to Moslem rites and their marriage was dissolved in 1982 by Islamic 'talaks' effected by the appellant upon the respondent.  The respondent was granted the custody of two children of the marriage aged two and five by the Kadhi's court in Zanzibar.  The appellant now objects to the grant of custody of children to the respondent.

MUSTAFA JA  Held that:
According to Islamic law infants who have not yet attained the age of some understanding, which is usually taken to be seven, are left in the custody of their mothers provided they satisfy the following seven conditions.
The mother must be of sound mind.
She is a free woman, not a slave.
She should have a religion (Islam).
She should have the ability to bring up children.
She should be faithful.
She has to be single.
She must have a domicile.

 

[09:18, 10/04/2015] Sauza: Joseph Warioba Butiku vs. Perus Uganda [1987] TLR 1   In this case both parties pleaded that the marriage has broken down irreparably there sought divorce both parties agreed to be divorced. Biron J. held the petitioner in his petition and the respondent in her answer established that the marriage has irreparably broken down as both asset it has and each spouse is praying for a divorce consequently. I have note the slightest hesitation in formerly finding that, the marriage has in fact and in law irreparable broken down, accordingly the marriage has
[09:20, 10/04/2015] Sauza:

In  Mwinyihamisi Kasimu vs. Zainabu Bakari. [1985] TLR 217 The parties were married under Islamic Law and after living together for over 13 years, the respondent petitioned for divorce.  The Primary Court dismissed the petition and her    appeal to the District Court was also dismissed.  But the District Court magistrate advised that because theirs was an Islamic marriag
[09:21, 10/04/2015] Sauza: the respondent could still obtain divorce by redeeming herself (kujikhului) by returning the dowry which the appellant had paid and that this would be in accord with s.107(3)(c) of the Law of Marriage Act,    1971.  Subsequently the respondent applied to the court to redeem herself as advised, and her application was allowed ex-parte.  The husband brought this appeal to the High Court. Held:  (i)  In order for the court to make a finding that a marriage is irreparably broken    down and to grant a decree of divorce as per s.107(3) of the Law of Marriage Act, 1971, it must be proved firstly, that the parties were married under Islamic Law, secondly, that a Marriage Conciliation Board has certified its failure to reconcile the parties and, thirdly, that subsequent to the Board's failure to reconcile them one of the  E  parties has done an act which, under Islamic Law, is sufficient to terminate the marriage; (ii)  in order for s.107(3) of the Law of Marriage Act, 1971, to come into play, all the three things must be proved to the satisfaction of the court hearing the petition for divorce, and they must be proved before judgment is entered, not after;   (iii)  while it was established to the satisfaction of the court before judgment was entered that the parties were married according to Islamic Law  and that the Conciliation Board had failed to reconcile them, the third requirement, that any one of them had done    an act sufficient to terminate the marriage under Islamic Law, was not so established; (iv)  even if the act of the respondent redeeming herself by returning the dowry could constitute an act to terminate marriage under Islamic Law, that act was legally ineffectual in this case because it was done after the court had pronounced
[09:51, 10/04/2015] Sauza:

ABDULRAHMAN SALIM MSANGI v MUNIRA MARGARET 1984 TLR 133
The appellant and respondent were married in 1975 according to Moslem rites and their marriage was dissolved in 1982 by Islamic 'talaks' effected by the appellant upon the respondent.  The respondent was granted the custody of two children of the marriage aged two and five by the Kadhi's court in Zanzibar.  The appellant now objects to the grant of custody of children to the respondent.

MUSTAFA JA  Held that:
According to Islamic law infants who have not yet attained the age of some understanding, which is usually taken to be seven, are left in the custody of their mothers provided they satisfy the following seven conditions.
The mother must be of sound mind.
She is a free woman, not a slave.
She should have a religion (Islam).
She should have the ability to bring up children.
She should be faithful.
She has to be single.
She must have a domicile.

[11:22, 11/04/2015] Sauza: SWIFT V KELLY.  In this case it was stated that “It should seem, indeed to be the  general law of all countries as it certainly in English that unless there are some provisions of statute laws requiring certain things to be done in a specified manner, no marriage shall be held void merely because it had been contracted upon false presentations unless it proved that without such contrivances consent would never have been secured, Unless the party imposed upon has been deceived as to the person and thus has given no consent at all then there is no degree of deception which can avail to set aside a contract of marriage knowingly made.
[11:23, 11/04/2015] Sauza: CORBET V CORBET [1970] WLR 1306.
In this case the defendant (Mr. Ashley) decided to change his sex by severing his male organ and creating a female given. He managed to change into a woman and became successful carrier of female model. She got married to the petitioner but later he discovered that Ashley was not a woman in nature hence petitioned for annulment. The issue was whether the marriage was valid but it was held that person’s biological sex is fixed at birth and can’t be substantially changed by artificial means. Therefore Mr. Ashley who was a male at birth was not a woman and therefore the marriage was void