Banzawihe v Iradukunda (Matrimonial Cause 76 of 2020) [2023] UGHCFD 127 (24 July 2023)

#### **THE REPUBLIC OF UGANDA**

# **IN THE HICH COURT OF UGANDA AT KAMPALA**

### **(FAMILY DIVISION)**

#### **MATRIMONIAL CAUSE NO.76 OF 2020**

**BANZAWIHE ISIDOL ::::::::::::::::::::::::::::::::::::::::::::::::::::::: PETITIONER**

### **VERSUS**

## **IRADUKUNDA JEANETTE ::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **Before: Justice Ketrah Kitariisibwa Katunguka.**

#### **Judgment**

#### **Introduction:**

1. Banzawihe Isidol (herein called **'the petitioner'**) filed this petition against Iradukunda Jeanette (herein called **'the respondent'**) under section 4(1),(2) (v),11,12(1)(d) of the Divorce Act Cap.249; seeking court orders that:- the marriage between himself and the respondent be dissolved on account of desertion, cruelty and that in any case the marriage is a nullity; and a decree Nisi to that effect be granted; in the alternative, the marriage between the himself and the respondent be declared null and void and a decree Nisi to that effect be granted; the respondent be granted custody of their child who is a minor; and for costs of this petition to be provided for.

## **The case:**

2. The petitioner contends that together with the respondent are Africans domiciled in Uganda; the marriage between them was solemnized on the 11th day of November 2018; as a result of the marriage, the parties have one issue by the names of Mugisha Aaron a minor born on the 29th day of August 2019; during the subsistence of the said marriage, the respondent without any reasonable cause or excuse, neglected and/or refused to fulfill her marital obligations by denying the petitioner conjugal rights; and has been cruel to the petitioner; she has since April

2020 deserted the home and is now residing with her mother. all attempts to reconcile have failed; the marriage is irretrievably broken down

3. The parties celebrated their marriage at Jeshim Church; and were issued with a marriage certificate of Church of Nazarene; a search carried out through the petitioner's lawyers, shows that the church at which the marriage was celebrated is not a licensed place of worship hence the marriage is a nullity; there is no collusion or connivance between the petitioner and the respondent; the petitioner has not condoned any of the acts complained of in this petition; the petitioner and the respondent are domiciled in Uganda and the value of the properties involved is over and above fifty million shillings.

## **Representation:**

- 4. The petitioner is represented by counsel Muzeyi Vincent of M/s Sseryazi, Mugabi & Co. Advocates. - 5. When the matter came up for hearing on 28/10/2021; counsel for the petitioner informed court that the respondent was served with summons to answer the Petition; on court record are two affidavits of service dated 27/8/2020 and another filed on 20/5/2021; the process server contends that upon service of court documents on the respondent, she declined to sign an acknowledgement of receipt; court granted counsel for the petitioner's prayer that the matter proceeds exparte under order 9 rule 11(2) of the Civil Procedure Rules. - 6. The position of the law is that where one is claimed to have done certain acts, he or she is required to specifically deny if in his or her view what is claimed against him or her is false,; otherwise it will be deemed the truth against the person; see Prof. Oloka Onyango & Others Vs Attorney General (Constitutional Petition No.6/2014) and also (see Massa V Achen [1978] HCB 279). The respondent opted not to file a defence, therefore the facts stated in the petition are not denied by her; she is therefore deemed to have filed her answer to the petition and admitted all the petitioner's pleadings; although the claims against her must pass probity;(see Samwiri Massa vs Rose Achen (1978) HCB.

# **Issues for determination:**

- 7. Counsel for the Petitioner filed written submissions framing three issues for court's consideration: - - 1. *Whether this Honorable Court has Jurisdiction to entertain this matter?*

- 2. *Whether the marriage between the Petitioner and the Respondent is valid?* - 3. *Whether there are sufficient grounds for the dissolution of the marriage between the petitioner and the respondent?*

Court shall pursuant to order 15 rule 5(1) of the Civil Procedure Rules add an issue on *What remedies are available to the parties?*

## **Determination:**

# Issue No.1. *Whether this Honorable Court has Jurisdiction to entertain this matter?*

- 8. Section 1(a) of the **Divorce Act cap 249** of the Laws of Uganda provides:*'Nothing in this Act shall authorize— the making of any decree of dissolution of marriage unless the petitioner is domiciled in Uganda at the time when the petition is presented;* The facts show that the petitioner is Ugandan resident of Zzana Entebbe Road; while the respondent is Rwandese; they got married in Uganda; so jurisdiction lies with the magistrate's court according to section 3(1) of the Divorce Act (supra), to wit:(1) *'Where all parties to a proceeding under this Act are Africans or where a petition for damages only is lodged in accordance with section 21. jurisdiction may be exercised by a court over which presides a magistrate grade I or a chief magistrate;* - 9. However the petition was filed in the High court and the issue of jurisdiction was not raised at the hearing. Article 139(1) of the 1995 Constitution of the Republic of Uganda provides that *"The High court shall, subject to the provisions of this constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdictions as may be conferred on it by this Constitution or other law"*. This is echoed in section 14(1) of the Judicature Act; to avoid multiplicity of suits and in the interests of justice pursuant to section 98 of the Civil Procedure Act this court has jurisdiction to entertain the matter as far as the prayer for dissolution of marriage is concerned. - 10. On the jurisdiction to determine the issue of nullity of marriage, section 1(b) of the Divorce Act provides; '*Nothing in this Act shall authorize— the making of any decree of nullity of marriage unless the petitioner is domiciled in Uganda at the time when the petition is presented or unless the marriage was solemnized in Uganda';* the facts as stated above show that the petitioner is domiciled in Uganda

and the marriage was solemnised in Uganda so this court has jurisdiction to entertain the matter.

Issue one is answered in affirmative.

# Issue No.2. *Whether the marriage between the Petitioner and the Respondent is valid?*

- 11. It is the contention of the petitioner that the marriage between him and the respondent was celebrated in a non-licensed place of worship. The petitioner testified that they were wedded at Jeshim Church in Ndejje which is not licensed under the law; the couple was given a marriage certificate from Nyanama Church of Nazarene by the officiating pastor of that church; the petitioner asserts that he has never been to Nyanama Church of Nazarene before or after marriage. John Bolingo Ntahira testified as PW2; he stated that he is a pastor/social worker in Jesus The Source of Hope International Ministries; that the parties were members of his church; their marriage was conducted at his church, the couple was wedded by Pastor James Kamoga of a different church Nazarene Church since Pastor Kamoga's church had a license, it is Pastor Kamoga who gave the parties the marriage certificate. - 12.**Article 31(1) of the 1995 Constitution** provides that a man and a woman are entitled to marry only if they are each of the age of eighteen years and above and are entitled at that age to found a family; and to equal rights at and in marriage, during marriage, and at its dissolution. According to **section 33 of the Marriage Act Cap.251,** a marriage certificate once entered in a Marriage Register Book or a copy of it, certified as aforesaid, shall be admissible as evidence of the marriage to which it relates, in any court of justice. S*ection 20(1) of the Marriage Act* provides that marriages may be celebrated in any licensed place of worship by any recognized minister of the church, denomination or body to which the place of worship belongs, and according to the rites or usages of marriages observed in that church, denomination or body. - 13. A look at the marriage certificate admitted in court as **PExb1**, shows that the petitioner and the respondent were joined together in Holy Matrimony on the 24th day of November 2018 at Nyanama Church of Nazarene; the marriage was duly witnessed by two people and officiated by Pastor Kamoga James. The petitioner presented a copy of a search statement on Marriage Register dated 4/7/2020 issued by the Registrar General addressed to counsel for the petitioner, it is reported; *"We*

*write to report that having made a search on the Marriage Register in our custody, the results show no record was found of a marriage between BANZAWIHE ISIDOL and IRADUKUNDA JEANETTE, and further we have also checked on our data base of licensed places of worship we could not find Jeshim Church at Ndejje or Jesus is the Source of Hope International ministries. However, Church of Nazarene is licensed and gazette to celebrate marriages."*

- 14.*Section 34(2)(a) of the Marriage Act, stipulates* that *"A marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration — (a) in any place other than the office of a registrar of marriages or a licensed place of worship, except where authorized by the Minister's license." (emphasis added).* **Section 25** of the Marriage Act makes it an obligation for the officiating minister to transmit a signed duplicate certificate of marriage within 7 days to the registrar of marriages for the district in which the marriage takes place. - 15. No credible evidence was adduced by the petitioner to prove that the marriage was conducted at Jeshim Church; PW2 contradicted in his statement under paragraph 2 of his affidavit in support of the petition, that the marriage was celebrated at his Jeshim Church at Ndejje; while in court he testified that the marriage was conducted at Jesus The Source of Hope International Ministries where he is a pastor; it is not verified whether these two churches are the same or not; therefore, his testimony cannot be relied upon. I take note that no evidence has been led to prove that before or during the celebration of the marriage, the petitioner and/or the respondent had knowledge that Jeshim Church at Ndejje was not a licensed place of worship within the law. - 16. The marriage certificate adduced in evidence shows that the marriage in question took place at Nyanama Church of Nazarene; and the fact that the search report issued by the Uganda Registration Services Bureau is to the effect that, Church of Nazarene is licensed and gazetted to celebrate marriages, I find that there is a subsisting valid marriage between the petitioner and the respondent.

The 2nd issue is answered in the affirmative.

Issue No.3. **Whether there are sufficient grounds for the dissolution of the marriage between the petitioner and the respondent?**

17. This petition is premised on desertion and cruelty as the grounds for divorce; **Section 4 of the Divorce Act**; which provides the grounds for divorce was found

unconstitutional in the case of **Uganda Association of Women Lawyers (FIDA) & 5 Others V. Attorney General, Constitutional Petition No.2/2003;** because it gave different parameters for a man as opposed to the woman contrary to Article 31 of the 1995 Constitution; each of the grounds can now be considered without pairing them in respect of gender; Courts may also look at the facts in totality to determine whether a marriage has irretrievably broken down;( See *Julius Chama V Specioza Rwalinda Mbabazi Divorce Cause No. 25/2011).*

18. The burden of proof in divorce cases is on the party that alleges misconduct on the part of the other party, there being a presumption of innocence: (**see Redpath v. Redpath and Milligan [1950) 1 ALL E. R. 600**); because of the effect of divorce not only on the divorcing couple but also on the children of the said couple leave alone the two families of the couple; although divorce cases are civil in nature, the standard of proof is slightly higher than in other ordinary civil cases in which it is only on the preponderance of probability; although it is not as high as in criminal cases where a matter must be proved beyond reasonable doubt: (see: **Habyarimana Veronica V. Habyarimana Perfect [1980] HCB 139**).

Court shall consider whether the petition satisfies each ground.

# *Desertion:*

- 19. For a spouse to be found to have deserted the marriage he/she should have left the marriage without the other spouse's consent and with no intention of coming back and stayed away from the marriage for at-least two years;(Section 4 of the Divorce Act); In *Rose Katungye v Salex Katungye (1999) KALR 891* court stated that "Desertion is the withdrawal of cohabitation by one spouse from the other whether actual or constructive without reasonable excuse for two or more years." It may be the physical leaving of the matrimonial home or leaving the marriage although without leaving the home; (see *Kayhul v Kayhul Divorce Cause 123 of 2016);*a marriage is both physical and intentional it must exist and also be seen to exist; there must be cohabitation, the parties must be deemed a couple by the right thinking members of society gleaned through the couple's behavior and actions. - 20. In *Fitzgerald v. Fitzgwalda : (1864). L. R. I P. L D. at p. 658.-* it was held that "No one can 'desert' who does not actively bring to an end an existing state of cohabitation. Cohabitation may be put to an end by other acts besides quitting the matrimonial home. Advantage may be taken of temporary absence or separation to hold aloof from a renewal of intercourse. This done willfully, against the wish of

the other party, and in execution of a design to cease cohabitation, would constitute 'desertion." The same position was reiterated in Jacksoit v. Jacksoid [1995]-P. at p. 178 where Sir Henry Ihke said at page 23: "If there is abandonment by one of the spouses of the other that is desertion. If one of the spouses causes the other to live separate and apart that, is desertion."

- 21. The petitioner deposes that the respondent has since 2020 deserted him abandoning him in the house; she left the home at her own will with their child; in court the petitioner as PW1 testified that it now 3 years since the respondent left their home. - 22. The evidence adduced through both the petitioner and PW2 shows that the respondent left the home and has not returned; the parties are no longer in physical cohabitation and the Respondent has not returned since 2020; In the premises desertion has been proved.

# **Cruelty:**

- 23. Cruelty is defined by Oxford Languages Dictionary as 'behavior which causes physical or mental harm to another, especially a spouse whether intentionally or not';since it can be emotional it depends on the effect one's behavior has on another and how the other('victim') takes it; it may be subjective depending on one's emotional/ temperamental strength and character. That is why there is no definition for it in law so courts have considered facts of each case to determine what amounts to cruelty; which has been stated to include situations which have the effect of producing actual or apprehended injury to the petitioner's physical or mental health. ;danger to life, limbs or health or mental, or a reasonable apprehension of it, **(see Veronica Habyarimana v Perfect Habyarimana a [1980] HCB 139);** - 24. The petitioner testified on oath that the respondent has denied him conjugal rights; after one week of marriage, she withdrew sexual intercourse and continued to do so until she deserted the marriage, he needed to force her every time they were to be together; Bolingo Ntahira Pastor and Social Worker in Jesus The Source of Hope International Ministries swore an affidavit and also testified as PW2 that he was called as a church leader to mediate but the parties could not stay together and so they separated; the petitioner stated that the respondent broke household property; that as a result of the respondent's conduct, he has been subjected to mental and psychological torture.

25. I have considered the petitioner's evidence and I have not found proof of cruelty because PW2 stated that the couple was quarreling and fighting but there is no proof that it was on account of the respondent; the petitioner admitted to having forced the respondent to have sex with him which may equally be seen as cruelty towards the respondent the alleged destruction of property was also not proved.

# Issue No.4. **What remedies are available to the parties?**

- 26. On an account of desertion by the respondent, the marriage between the parties is hereby dissolved. - 27. The petitioner in the petition deposes that the value of properties involved is over and above fifty million shillings. However, this has not been proved, there is no detailed information concerning the nature and value of the properties. I therefore find that there is no matrimonial property held by the parties. - 28.*Custody and Maintenance:* **Article 31(4)** of the constitution of Uganda provides that; it is the right and duty of parents to care for and bring up their children; **Section 4(1)** of the Children Act (as amended) provides that it is the right of every child to stay with their parents or guardians. Parents hold the primary right to custody of their children and both parents have similar and equal rights with regard to their right. (see: *Rwabuhemba Tim Musinguzi Vs. Harriet Kamakune (Civil Application No.142 of 2009) [2009] UGCA 34*); it is important that both parents stay in the lives of the children because their welfare is best served if both parents are involved in their upbringing. - 29. The parties have a child by the names of Mugisha Aaron said to have been born on 29/8/2019; therefore currently 3 years and in the custody of the petitioner. In his petition, the petitioner prayed for custody of the child; he deposed how he has been taking care of the child voluntarily and undertakes to continue doing so; even when the child is under the respondent's custody. In court he confirmed his averments about his willingness to continue maintaining the child, however, he stated that he does not want the child now, but later when he is older.

Legal custody of the child is granted to both parties while physical custody is granted to the respondent; the petitioner may see the child on prior notice to the respondent.

- 30. On maintenance, *s***ection 5 and 6** of the Children Act provides that; it shall be the duty of a parent, guardian or any person having custody of a child to maintain that child and, in particular, that duty gives a child the right to— (a) education and guidance; (b) immunisation; (c) adequate diet; (d) clothing; (e) shelter; and (f) medical attention. - 31. The petitioner is willing to maintain the child Mugisha Aaron and the financial capacity of the respondent has not been revealed. The petitioner stated that the respondent and the child are staying at the respondent's mother's home; The petitioner shall provide maintenance for the child. - 32. On costs, since the respondent did not file an answer the petitioner shall bear the costs of the petition..

In the result, the petition majorly succeeds. It is hereby ordered as follows:

- 1) The marriage between Banzawihe Isidol and Iradukunda Jeanette is hereby dissolved on account of desertion; a Decree Nisi hereby issues. - 2) The parties shall share legal custody of the child Mugisha Aaron while physical custody is granted to the respondent with the petitioner having access to the child with prior notice to the respondent. - 3) The petitioner shall provide maintenance for the child. - 4) The petitioner shall bear his costs. - 5) The Petitioner shall bring this divorce order to the attention of the Registrar of Marriages for purposes of updating the Register.

Ketrah Kitariisibwa Katunguka Judge 24/07/2023

Delivered by email to:muzeyivicent@gmail.com