(PC) Civ. App. 68-M-71; 11/12/71
Kisanga Ag. J.
The appellant’s brother, now deceased,
was married to the respondent’s sister, ‘B’ and there were two children of the
marriage who, however, died. Following the death of her husband “B” in
accordance with the customary law became the wife of a brother of her deceased
husband. That brother also died and she became the wife of yet another brother.
When that brother died in 1961, she became the wife of the appellant sued to
recover the bride price paid by his brother, the original husband of “B”. The
primary court judgment was a majority decision, with the magistrate himself
dissenting. The two assessors who sat with him held that according to Zanaki
customary law, when the husband dies, his widow must be inherited by his
brother, and should she refuse to be so inherited the bride price which was
paid in respect of her must be refunded. The primary court magistrate, however,
in dissenting relied on paragraph 62 o the Law of Persons, G. N. No. 279 of
1963, which is applicable to Musoma District. The district court reversed the
decision of the primary court.
Held:
(1) “Paragraph 62 provides: The widow is to be asked if she agrees to be taken
over by the brother of the deceased.
If she refused the bride price is not
refunded and the widow is free to go and live with her brothers.’ With great
respect to the primary court magistrate. I think that this paragraph was not
applicable here because the widow had already made up her mind to be the wife
of the appellant, and she lived with him as his wife from 1961 till 1970 when
she decided that she no longer wanted to live with him. In my view, this
paragraph should be constituted to mean that the widow should exercise her
election as soon as it is practicable after her husband’s death, and that once
she has decided to accept the deceased’s brother as her husband then she cannot
subsequently elect to leave him on the strength of that same provision of
paragraph 62. This view would appear to be fair because it seeks to ensure the
succeeding husband some measure of certainty and stability in relation to the
widow so that he can plan his future life accordingly. I am therefore of the
view that the appellant’s claim could not be defeated by the application of paragraph
62 cited above.”
(2) “The district magistrate, however, while upholding the
opinion of the primary court magistrate, relied on paragraph 52 (b) of the same
Law of Persons. That paragraph makes provision for refunding bride price in
cases of divorce and it reads: - “Where a marriage comes to an end, without the
husband or the wife advancing any specific grounds for it, then If there are
any children of the marriage, whether alive or dead, bride price can never be
refunded ….” That paragraph presupposes that the marriage has come to an end
following a divorce. But in the instant case the marriage is still subsisting
because the appellant, by virtue of customary law, succeeded his deceased
brother and became the husband of the surviving widow.”
(3) “In the case of Sungwa
Fumbuka vs. Manyanda Kasalucha (1968) H.C.D. 84, the husband sued for
the recovery of bride price on the ground that his wife deserted him. Cross, J.
held that the marriage between the parties was still subsisting and the parties
were not divorced, so that no refund of bride price was allowable. The
circumstances of the present case are similar, and I think that the same
principle should apply so that the appellant’s claim for refund of the
bride-price could not be entertained unless and until he has brought divorce
proceedings against his wife.”
(4) Appeal dismissed.
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