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Competent forums to dissolve marriage

COURTS of law are the only forums empowered to dissolve marriage.

Before one petitioning for divorce he or she has to obtain a valid certificate from the Marriage Reconciliation Board under Section 101 of the Law of Marriage Act. Such certificate has to show the marriage has irreparably broken and cannot be salvaged.

Our staff writer, FAUSTINE KAPAMA revisits proceedings of a matrimonial dispute and reports…... HASSANI Ally Sandali and Asha Ally were married under Islamic rites sometime in 2001. On June 24, 2016, the Chikundi Primary Court, Masasi District, dissolved their marriage following a successful petition for divorce by the wife.

That court did so presumably upon being satisfied that the marriage celebrated under Islamic law had been irreparably broken down and that the Marriage Conciliation Board, BAKWATA Chigugu Ward, had failed to reconcile the parties.

In other words, the trial Primary Court granted the divorce because it believed that the preconditions for doing so under section 107(3) of the Law of Marriage Act, Cap. 29 had been met.

However, the husband has all along contended that the decree of divorce was made prematurely because the conditions precedent for a proper divorce involving a marriage celebrated under Islamic law were not met.

His first appeal before the District Court failed and likewise before the High Court on a second appeal. As a result, Sandali, the appellant, decided to take the matter to the Court of Appeal on third appeal to challenge findings of the lower courts, which had ruled in favour of Asha, the respondent.

One of the grounds of appeal contended that the Primary court issued a decree of divorce contrary to the law because there was no evidence that there was a valid certificate from BAKWATA that it had failed to reconcile the parties on a matrimonial dispute referred to it.

The appellant stated, among others, that High Court Judge erred in law by holding that the letter from BAKWATA Chigugu amounted to a Certificate of Marriage Conciliation Board.

Court of Appeal Justices; Augustine Mwarija, Mwanaisha Kwariko and Lugano Mwandambo were called upon to determine whether the letter from the Board not in conformity with the certificate in the prescribed form could still be used as a certificate for instituting a petition for divorce.

The High Court had no difficult in sustaining the appellant’s argument that the letter did not resemble the certificate prescribed in Form 3 in the schedule to GN 240 of 1971.

However, the Court took the view that the letter reflected the spirit of a certificate of the failure to reconcile the estranged couple and so it was a good certificate sufficient to institute the petition for divorce under section 101 of the Act.

In arriving at that conclusion, the High Court took into account what it believed to be peculiar circumstances obtained in the rural areas with the attendant geographical limitations to access proper certificates specified in Form 3.

During hearing the appeal, the respondent had criticised the appellant for not raising the issue on the validity of the certificate before the Primary court. The justices noted that it was true that the issue featured as a ground of appeal for the first time on a second appeal before the High Court.

However, they said, whilst it is desirable that all issues must have been dealt with at the earliest possible opportunity. The High Court was not precluded from dealing with it as that ground involved a point of law touching competence of proceedings before the Primary court which could be raised any time.

Referring to different previous decided cases, including Marwa Mahende v. Republic [1998] TLR 249, the justices insisted that the Court of Appeal underscored the duty of the appellate courts to apply and interpret the law of the land and ensuring proper application of the laws by the courts below.

On the other aspect relates to the appellant’s claim that there was no reconciliation of any dispute before BAKWATA, the justices of the appeals court were of the view that such complaint falls outside the point certified by the High Court for determination.

When determining the appeal on merits, the justices noted that the Primary Court dissolved the marriage between the appellant and the respondent on the basis of section 107(3) of the Act. However, they said, the granting of the divorce under section 107(3) of the Act was not an end in itself.

“It was subject to compliance with section 101 of the Act. That section prohibits the institution of a petition for divorce unless a matrimonial dispute has been referred to the Board and such Board certifying that it has failed to reconcile the parties,” the justices said.

That means that compliance with section 101 of the Act is mandatory except where there is evidence of existence of extra ordinary circumstances making it impracticable to refer a dispute to the Board as provided for under section 101(f) of the Act.

The justices were, however, quick to point out that there was no indication of any extra ordinary circumstances which could have attracted dispensing with reference of the matrimonial dispute to the Board.

According to them, there is no dispute that there was indeed a matrimonial dispute between the parties which resulted into the appellant issuing a talak to the respondent on February 26, 2016.

In terms of section 107(3) of the Act, the Primary Court had power to dissolve the irreparably broken down marriage between the parties upon being satisfied that all conditions under the sub-section had been met. They said that it is important to note that the Board’s certificate is one of such conditions which the Primary Court was bound to be satisfied of its existence.

Section 101 of the Act does not prescribe how a certificate accompanying a petition for divorce should look like. However, rule 9(2) of GN 240 of 1971 provides: “Where the dispute is between a husband and his wife, and relates to the breakdown of the marriage or an anticipated breakdown of the marriage, and the Board fails to reconcile the parties, the Board shall issue a certificate in the prescribed form.”

The form is prescribed under the schedule as Form No. 3 in English language. It is plain from Form 3 that the Board is enjoined to certify that it has failed to reconcile the parties on a dispute referred to it by either the husband or wife.

In addition, in terms of section 104(5) of the Act, the certificate has to reflect the Board’s findings. The justices noted that the letter addressed to Chikundi Primary Court was signed by BAKWATA secretary. Ordinarily, they said, a certificate would be signed by the Chairman, vice-chairman or member.

“It is not clear to us if the secretary was also a member of the Board with authority to sign the certificate. Be it as it may, if one compares Form 3 with contents of the letter, it will be clear that there is no indication that BAKWATA made any attempt to reconcile the parties,” the justices noted.

They also agreed with the appellant contention that the letter from BAKWATA is deficient both in form and content and so it could not qualify to be a certificate carrying the spirit of Form 3 as held by the High Court.

Justices appeals court, the highest temple of justice in Tanzania, pointed out also that it would have been different had the contents reflected the fact that the Board had failed to reconcile the parties with findings as close as possible to Form 3.

“Since that is not the case, we are unable to go along with the High Court Judge that the letter from BAKWATA was a valid certificate capable of accompanying a petition for divorce under section 101 of the Act,” they ruled.

The upshot of all, the justices went in holding, the letter, which the High Court found to be sufficient for use as such certificate in matrimonial proceedings was not a valid certificate in accordance with the law.

They were of the firm views that in the absence of a valid certificate to institute a petition as required by section 101 of the Act, the petition before the Primary court was premature. In consequence, the justices were left with no option but to determine the point certified by the High Court in the negative which disposes of the appeal in the appellant’s favour.

Having held the petition for divorce was incomplete for lack of valid certificate, they declared the proceedings before that court were a nullity and there could not have been any valid decree of divorce from which one could have challenged on appeal to the District Court and ultimately to the High Court.

“The High Court should have sustained the appeal on ground that there was no valid certificate capable of instituting a petition before Primary Court. Since that Court strayed into an error, its proceedings and the decision are quashed and substituted with an order allowing the appeal,” the justices declared.

The net effect is that the proceedings before the Primary Court as well as the decree of divorce was quashed for being a nullity so are proceedings and orders made by the District Court on appeal. They said that the respondent is at liberty to process her petition afresh according to law if she so desires.

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