Giramata v Habimana and Another (Matrimonial Cause 16 of 2020) [2022] MWHCFam 10 (10 January 2022)

2 BA. Mwale. $2: uo - Giramata Vv Habimane: . Matrimonial Cause No. 16 of 7020 Se JUDICIARY IN THE HIGH COURT OF MALAWI FAMILY AND PROBATE DIVISION MATRIMONIAL CAUSE NO. 16 OF 2020 BETWEEN GENTILLE GIRAMA?T BD wecseseees oc cangeneueae teeny 1 REED EERE eee PETITIONER -AND- MORK FIABYMANA. sssesssseeceusesssssenssenunesregnnngnnenss ss RESPONDENT ABRABOM NOPALLOINDI occcesceeeecerersenene rte ES INTERESTED P ARTY CORAM + MWALE, J. Soko, of counsel, for the petitioner Mtopila/Mndala, of counsel for respondent Kanyama, Court Reporter Mpandaguta, Court Interpreter Giramata v Habimana - Male, J. pnd 2. - \patrifmioniil Cause No 160F2020°0 EIA Male doo -— jupoMENT ON DIVORCE The marriage the parties wish me to dissolve was officiated at Seventh Day Adventist Church and registered with the Registrar of Marriage at the District Commissioner’s office in Lilongwe on 12" November 9011. There are three children to the marriage aged 8 years, 5 years and 2 years, The Petitioner moved this Court for the dissolution of the marriage on the grounds of adultery and cruelty. She therefore seeks that: (a) The marriage be dissolved on the ground that it has irretrievably broken down as set down in section § of the Marriage, Divorce and Family Relations Act. . (b) She be granted custody off the children of the marriage. {c) The respondent pay compensation for causing breakdown of the marriage. (¢) The matrimonial property be valued and distributed in her favour. (e) The Respondent be condemned in costs of these proceedings. The Respondent in his Response denied allegations of adultery and cruelty and has cross- petitioned on the erounds of adultery. In the Cross-Petition the Respondent seeks the following: (a) Dissolution of the marriage. (>) Distribution of matrimonial property - {c} Gompensation for the dissolution of marrage (d) Custody of the children or reasonable visitation rights. (€) Costs of this action. The Court rose on this matter on 3 November 2021, whereupon the parties were to fiie final written submissions within 14 days. It was only after the Notice of Delivery of Judgment was issued by the Court in January 2022 that the Petitioner’s submissions were filed. I have missions from one party. therefore proceeded to judgment having only received sub Giramata v Habimana “Matrimonial Cause No. 16 of 2020 a . BA. Mwale. i" . AL The first duty of the Court i in “divoice proceedings ig 10 determine the applicable law, The ; necessity arises because of the enactment of the ‘Matti iage; Divorce and Family Relations Act (MDFRA”); int 201 5, which repeals all former laws qelating to marriage and divorce. Seotion oe 3 of the MDFRA provides that: “this Act shall apply to marriages enter ed into on or after the day it comes into operation, bul Part LY shall apply to all marriages re gardless of the date they were celebrated.” The said section 3 was interpreted by Nyirenda J. in the case of Hillard James Cathcart Kay y, Norah Nikkie Cathcart and Murray Henderson, HIC/PR Matrimonial Cause Ne ili of 2015( unreported), M which he stated that: “section 3 of the Marriage, Divorce and Family Relations Act is in my view clear states in plain language that the Act applies to marriages entered into on or after the commencement date, save for Part LX which applies to all marriages regardless of the date they were celebrated.” and unambiguous. It 5. The MDFRA came into operation on 3rd uly 2015. As the marriage between the parties was officiated in 2011, only Part LX of that Act applies to it and the dissolution of this marriage 1s not regulated by the MDERA, but rather, the now yepealed Divorce Act. 6. The second issue with which I must be satisfied is that this Court has jurisdiction. First, as the marriage was contracted under the repealed Marriage Act, this Court has jurisdiction. However, the Court must be satisfied further in terms of section 9 of the Divorce Act that the Petitioner was domiciled in Malawi when the petition was presented. Although often equated with a person’s petmanent home, at law, there is however more to domicile than permanence ofresidence. Domicile has distinct legal connotations for purposes of judicial jurisdiction and governmental burdens and benefits. The Petitioner and Cross-Petitioner were originally Rwandan. They therefore have a domicile of origin in Rwanda. quires 4 domicile of choice. 7. A person retains his domicile of origin unless and until he ac fof change of domicile. She must not only manifest at she has put that intention The Petitioner bears the burden of prao intention to acquire a new domicile but must also demonstrate th 10. : unequivocal, and fixe - “adopt another (Winans yAttorney General (1904) A. C. 287, Fuld (No. 3) (1968) P. 675, Coombe «vee Coombe (1923-60)1 ALR Mal. 115, Whitelock y Whitelock (1978-809. _ of residing perm GiramatavHabimana: ' Matrimonial Cause No. 16 of 2020: ey BT, Mwale. Je . _ > into execution by acquiring the intended new domicile. Thus, there must be showiia clear, d intention to permanently abandon one domicile and to permanently MLR 43 and Bond v Bond (1984-86)11 MLR 87), Considering that the Petitioner has now acquired Malawi citizenship and has exhibited a manifest intention to be bound by the laws of Malawi by opting to marry in this jurisdiction whose laws she has been subject to for a period of over 10 years, Lam satisfied that she is not only permanently resident in Malawi but has assumed the burdens and benefits at law anently in the country. This Court therefore has jurisdiction to hear the petition. The Court must further satisfy itself in terms of section 7 of the Divorce Act as follows: hall be the duty of the Court to inquire, 50 far as cts alleged and whether there has been any t of the petitioner and whether any d also to inquire into any counter-charge "(1) On a petition for divorce it § it can reasonably can, into the fa connivance or condonaiton on the par collusion exists between the parties an which is made against the petitioner. (2) Ifthe Court is satisfied on the evidence that- (a) — the case for the Petitioner has been proved, and (b) where the ground for the petition ts adultery, the petitioner has not in any manner been accessory 10, oF connived at, or condoned the adultery, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty; and (c) the petition is not presented or prosecuted in colluston with the s, the court shall pronounce a Respondent or either of the Respondent decree nisi of divorce, but ifthe Court is not satisfied with respect to any of the aforesaid matters, if shall dismiss the petition.” Connivance is ordinarily defined as consent to the misconduct alleged as grounds for sconduct occurs. Collusion refers to agreed divorce. This consent is given before the mi Giramata v Habimana . Li, 12, "Matrimonial Cause No: 16 of 2020 | A wale. J acts by the patties to present a petition | based on a fictitious causes, : An example would be as | staged scene in vibich one pretonds to be committing adultery ‘and the other wallks i in on. oe him, just 50 they can have grounds to ‘bring to court. Condonation i is usually described aS forgiveness after the act, although it entails a little more. Connivance arises in actions foi divorce based on adultery. The act of adultery is frequently unlawful and always immoral, besides. being an injury to the petitioner. Consent to the act is to some extent immoral and degrading; hence, the consent itself is corript. It is for this reason that the term “connivance” rather than “consent” is used by the courts in describing this particular conduct. There was no love lost between the parties as was evident from their testimony. The acrimony was very evident making it impossible for them to agree on anyihing, even matters to do with the welfare of their children. I can safely conclude in consequence that there was no collusion. The Petitioner’s evidence with regard to cruelty was that the Cross-Petitioner beat her excessively to the extent that she suffered a shoulder dislocation and bruises through that cruelty and her life was im danger. She stated that in February 2020, during y the course of disagreement on the Co-Petitioner’s affair with Hawa, the Co-Petitioner hit the Petihoner with a broom on the thigh and she developed a serious bruise that was extremely painful, and she was unable to walk properly for some time. Three weeks after that injury, the Co- Petitioner hit the Petitioner with a stool at their matrimonial house in area 6, and she suffered a dislocation of the shoulder and had to attend to physiotherapy for over three months The Petitioner further stated that on the 97 of June 2020, the Co-Petitioner whist driving towards Nayele in Lilongwe together with the Petitioner, made threats that he was going - to kif her and deal with her for once and for ali. The Respondent tied the Petitioner with a scarf to the hand break and started beating her on the head whilst driving the car, The Co- Petitioner then branched off into a dirt road at Nayele Trading Centre and he continued to violently beat the Petitioner. The Petitioner then jumped out off the vehicle whilst it was Giramata vHabimana | Nintrimonial Cause NO.160f2020- > A Males 13. 14, 1. 16. in motion, ‘and she was subsequently rescued by villagers and the police. Further, the Co: no Petitioner has also beat the Petitioner on various occasions and sometimes in the presence a of the children and this has negatively affected the family: During cross ~ examination, the Petitioner stated that she did not obtain a police report on the same night of the Nayele incident, but a statement was recorded on the following day when she wanted to seek treatment at the hospital as her body was in pain. The police officer who recorded the statement was not present on the day of the incident. She further admitted that she already had a shoulder dislocation injury before the incident, and she did not report the incident involving her shoulder to the police as the Respondent apologized. The Petitioner’s second witness P W 2, Phuwa Mwansambo, confirmed the Nayele incident fo some extent. On 26" of June 2020 at Spm, as he was coming from Nayele Trading Petitioner who was on top of the Petitioner and he was ped the Centre, he noticed that there the Co- rously beating her up and she was screaming for help, He intervened and stop fight together with his friend. The Petitioner was hurt and traumatised and she refused to Vigo be near the Co-Petitioner. She was hysterical and kept on stating that the Co-Petitioner wanted to kill her, and he resorted to calling the police, At around 7p the scene, and they arrested the Co-Petitioner and instructed the Petitioner to m, three police officers arrived at follow them. During cross-examination, P'W 5 clarified that the Petitioner was not hurt and that the two were only exchanging word in a language he could not understand. Due to fear that the two would kill each other, he called the police who drove the couple to the police station. There was therefore some inconsistency in his testimony. PW 3 was Detective Sub-Inspector Aaron Magoli and he stated that he was on. duty on the 27% of June 2020 when he recorded a statement from the Petitioner on the incident that occurred on the 26" of June 2020 at around 7pm. The Petitioner came to formally lodge her complaint that she was assaulted by her husband along the road to Nayele Trading Giramata v Habimana 7, 18. Matrimonial Cause No. 16 0F2020 | RA Male Contre in Lilongwe and the Respondent threatened to kill the Petitioner and she jumped ‘out of a moving vehicle in fear of her life The Petitioner was issued with a letter so that she could pet assistance at Natbenje Health | Cenire which issued a medical report. The Petitioner had been to the station the previous night, but she did not consent to her husband being arrested but came back the following morning complaining that the situation was getting worse at home. He did not proceed to open a case of attempted sauder because the Petitioner insisted that the Respondent should not be arrested. The law is settled that the burden is on the one alleging the misconduct and that in divorce cases the standard of proof is slightly higher than the balance of probabilities in other civil ithough not as high as the standard in criminal cases in which it has to be be fy Sadala v Kayisi Sadala (Matrimonial Cause No. 8 of 2016) Cases, a yond reasonable doubt (see lap High Court, Principal Registry (unreported)). This Court has had occasion to critically examine the definition of cruelty as developed by case law over the years. e Teixeira Almeida (Matrimonial Tn the case of Shenaz Peter Bhagwanji Abneida v Ricardo Andr Cause Number 08 of 2016) High Court, Lilongwe District Registry (unreported) this Court held that the definition in the English case of Russell v Russell [1897] AC 395 which was adopted in the Malawian cases of Malinki v Malinki{1975-1977] 8 MLR 141, Chirwa v Chirwa Ct 996) MLR 452, Sadala v Sadala and others (citation above) is narrow and was limited to the context and state of affairs that prevailed then. The definition of cruelty in these cases was posited as conduct of such character as to have caused danger to life, limb, or health bodily or mental or as fo give rise to reasonable apprehension of such danger. This Court in the Admeida case stated that, according to the “whilst harm or reasonable apprehension of harm may, circumstances of the case, still be relevant fo determine cruelty, the definition as it currently stands needs to take other factors into account”. Giramata v Habimana ~. Matrimonial Cause No. 160f2020. ee FA. Mwate. J. 19, This Court in the Almeida Gase, e, adopting ihe caution that Lord 4 Denning advised | in the case se D of Kaslefsky y Kaslefsky [1950] 2 All ER 398 that i iit order not to open the door to cruelty, a go wide as to grant divorce on gromds of mere incompatibility, cruelty must be ‘nfentional- fs “Thys, in order for the threshold of. cruelty to be reached, the respondent must have acted voluntarily in a manner which he foresees oF should foresee would harm the petitioner” This Court therefore reasoned as follows- “the conduct complained af as cruelty must be intentional conduct by the respondent of such nature as to make continued cohabitation and exercise of conjugal duties unbearable or impossible. Such conduct must be of such a serious nature as to go beyond mere incompatibility. In assessing the conduct, the particular attributes of the petitioner that make him or her susceptible to intolerance of the conduct complained of must be considered”. This opinion is consistent with that held by Nyirenda J., as he then was, in the case of Faines Tanil Majamanda v Patrick M. Majamanda [2006] MLR 128 when he asked the question- “would any right-thinking person come 10 the conclusion that this husband has hehaved in such a way that the wife cannot reasonably be expected to live with him taking the whole of the circumstances and characters and personalities of the parties.” Tn the case at hand, a number of issues arise from the evidence in the Petitioner’s evidence. First, there was some doubt raised as to whether the Nayele incident caused the Petitioner the impuy alleged as it seemed she had already suffered a dislocated shoulder prior to that incident. There were also some inconsistencies 8 to whether the witnesses saw actual physical fighting or whether this was a verbal altercation. Secondly, as the Petitioner did not allow the police to arrest the Co-Petitioner, there is need to consider whether this act of violence was condoned. Counsel for the Petitioner has argued that the violence was not condoned. ~ Giramata v Habimana > Matrimonial Cause Né, 16 of 2020 mo . | a FA. Mwales ae ate "What emerges from the evidence is ‘that some ¢ kind of altercation arose between the pasties, | and that this altet cation caused passers- by to fear for the lives of the parties.’ The Co-. =. a oe Petitioner did not deny ‘that the incident took place: According to ‘hia he was agitated by: ° | : =: the information that he received from Mt. Mogenzi” s wife (who he ctoss-petitions was having an affair with his wife). His account is that he was confronting the Petitioner on the allegations as he was driving. He stated that the Petitioner jumped off the vehicle for no reason. Jumping out of a moving vehicle is not ordinary conduct. The Petitioner would not have just jumped out unless she was fearing a greater evil, The Petitioner found the threats she was experiencing unbearable and in view of past conduct of a violent nature that ied to some injuries, I find that this incident was enough to cause the Petitioner reasonable apprehension of harm. and that the incidents of cruelty she complained about which have not been discredited in cross examination are proof enough that she cannot be | expected to continue cohabitation under the circumstances. 92. - Although the Co-Petitioner has argued that it was in fact the Petitioner who was violent against him, | have not found any evidence supporting this. Especially as the petitioner vehemently rebutted this allegation in cross-examination. Whilst condonation of cruelty has been denied, no precise evidence has been tendered to bo las show absence of condonation. Bearing in mind that section 7 of the Divorce Act requires a court to inquire into the presence or absence of condonation and be satisfied on the evidence that there was no condonation, this function of the court cannot be overlooked. The Petitioner, according to the evidence did protect the Cross-Petitioner from being ay be considered condonation. The . prosecuted after the Nayele incident and this m ruelty and ation of such a finding however would be to find dismiss the ground of c implica thereby not grant the divoree in consequence. Such a finding although sanctioned by the law, would perpetuate domestic violence and rob victims of the right to proceed with he reality of the incidence of intimate partner violence is that matrimonial proceedings ast e of abuse in which the victim is manipulated into forgiving the perpetrator _ itis fed by a cyc! In other words, under only for the violence to cease for a little while and resurface later. 24. 25.0 Giramata v Habimana, a - Matrimonial Cause No. 16 of 2020 BAL Mate’ J the curr ent state of tlie law, if a victim seeks a divorce on the basis of extreme cruelty, but Le - exhibits conduct that forgives her abuser, she no longer can use the incidents that predated the for giveness as a ground for divorce. This legal defense empowers the abuser and helps. perpetuate the abuse cycle. The victim will need to endure (and survive) another episode .. of abuse in order to establish a viable fault-based ground. The English case of Cramp v Cramp (1920) P. 158 provides an interpretation of condonation that acknowledges the precarious position victims of domestic violence may find themselves in, by not equating condonation, with forgiveness. In that case, on the ground of adultery, the respondent admitted that her husband never though forgave her though he did cohabit with her after her adultery. The court held that the was condonation, saying, “4 man cannot at the same moment exercise the rights of a husband and disclaim the discontinuance of the marriage bond.” Judge McCardie, after quoting many English cases in which the word “forgiveness” occurred, concluded that the emphatic use of such words tended to obscure the tme meaning of the doctrine of condonation and concluded: «Je will be found, I think, that the truer definition of condonation is that it is a conditional waiver of the right ofa spouse to take matrimonial proceedings, and if if is not forgiveness at ail in the ordinary sense.” Therefore, it is wrong to tie condonation to momentary acts of forgiveness or resumption | rights which may well be forced upon the victim b law reform towards no- fault divorce, consider all the of conjuga y the abusive partner. A court should, whilst we awatt evidence in its entirety as to whether the conduct of the Petitioner can be considered as condoning the violence. Having observed the Petitioner testify and heard her evidence, | am satisfied that there was in fact no condonation. of adultery, the Petitioner did not call any witnesses on this issue. Moving on to the ground rch 2019, the Co-Petitioner was involved in a Her own evidence was that in or around Ma Giramata v Habimana ~ "Matrimonial Cause N6. 16 of 2020. , Oo >A. Mwale. Ls > 26, 27, 28, 29, sexual relationship with a eit known 8 as ‘Blavva’ who i is resident at Dealeka Camp i in Dowa.. : ‘The Respondent was ‘seen visiting Hawa at Dazaleka ¢ on several occasions. On the 14% of eS April 2019; the Respondent was seen | with Hawa at Bingu Fnternational Conference Centre: during the Rwandan Genocide Cormemor ‘ation and the two have been seen on various social outings and they have spent nights together at a Lodge m Lalongwe. The relationship between the Respondent and Hawa is apparently well known by their friends and the gizl’s mother also confirmed that the two were in a relationship after the Petitioner made inquiries from her. The girl, aged 17, subsequently became pregnant and she now has a child who looks exactly like the Petitioner’s children. The Respondent denied having an affair with Hawa although be admitted that he knew the lady by the name of Hawa and that she was a family friend from Daateka. He denied being and refused to identify her photo or the conversation that was -Petitioner in a relationship with her allegedly accessed through his phone between himself and Hawa. 1 find the Co a very evasive witness who pretended not to under stand English or Rwandese and did not read any of the texts that he was confronted with as having been shared between the two. He admitted being confronted about Hawa and the texts messages that were accessed in his phone but did not appear willing to disclose the state of their relationship. 5 very nature makes it difficult to prove. In the words of Mzikemanda, J, as Adultery, by it ev. Donata Chakanza [2007] MLR 72 at 76: he then was, in Captain Kingstone Mibew e act of adultery. Often “Very rarely will people committing adultery be caught in th rticular case” times adultery will be inferred from circumstances surrounding a@ pa. [1997] 1 MLR 446, Panjwani v. Panpwant 3993] 16(2) MLR 613.) Ina court ourt to retum a finding (see also Chafukira v Chafukira and Another and others [1997] 1 MLR 142, Mhango v. Mhange D1 ce must be tendered nonetheless that would enable ac Matrimonial Cause No. 8 of of law, eviden that adultery had in fact been committed. In Sadala v Sadala, Registry (unreported) the Court reiterated that mere 2016, High Court Principal Giramata vHabimana.-—~=~Ss« Matrimonial Cause No. teof2000. CA. Miwale. J. 30, 3A, 32, . suis | opportuni opportunity is not proof of adultery and therefore cannot be established merely on picion. Suspicion must. be -accomipanied by. ‘evidence of undue, familiarity and. have been committed (Ross v Rass [1930] AC 7 and Chirwa y. Chirwa [1996] MLR 452). In Mhange v Mhango [1993] 16(@2) MLR 613 Mtambo J as he then was having noted that adultery is rarely proved by direct evidence, conditions must be proved which leave no doubt that adultery was committed. With regard to whether the Co-Petitioner and Hawa had opportunity to engage in sexual relations with Hawa, the Petitioner’s evidence is that the two frequented lodges where they spent the night and that their relationship was known to people. The Petitioner’s evidence lacked the particularity needed to convince this Court of the veracity of her allegations as to enable me to return a finding that adultery had in fact occurred. She herself stated in cross-examination that she has never scen the two together, nor has she ever seen a picture of the two together. There is room for a lot of doubt, The Petitioner’s evidence is largely based on a photograph of Hawa’s child, whom she states looks exactly like her own child. Initially the Petitioner convinced Hawa’s mother the child to a DNA test, but eventually Hawa changed her mind. The Petitioner The Co-Petitioner was to submit belioves that the Co-Petitioner prevailed upon her to refuse. obviously hiding something as was evident by his very evasive conduct during the hearing. In the absence of evidence, the overwhelming effect of which would be that the reason for his evasiveness could be that he had in fact fathered a child with a minor which if he did, would Jeave him open to criminal prosecution. One other reason could be that his denial is true. The list of reasons is endless, Grven that there could be more than one reason for his evasiveness, it is not up to this Court fo speculate. The only proof of adultery is the Petitioner’s resolute belief that the child looks exactly like ‘The Respondent has himself refused to submit to DNA evidence and there 1s hers. Tt would be very therefore no conclusive medical proof that the child is indeed his. ty. There must be évidence to show that there was opportunity for adultery to: Giramatav Habimana — 33. 34. 35, Matrimonial Cause Né. 16 of 2020. a - oa | BAL Mwale. J 7 a . danger ous for a court to pr roveedt to make a finding of adultery based’ ona seeming g similarity oa between children when there is precise science on which such findings must be based. a . Based on the evidence before me, I éannat find for the Petitioner on thie: Bt round of adultery. a The Cross-Petitioner in the Cross Petition alleges that the Petitioner is herself cuilty of the . matrimonial offence of adultery. According to his evidence, he heard rumours about the Petitioner’s affair with Mr. Mugenzi in Rwanda and later noticed the change of behaviour in the Petitioner whilst she was in Malawi. He tendered in evidence a screenshot sent by Mrs. Mugenzi’s of a video call between the Petitioner and Mr. Mugenzi. The Petitioner and Mr. Mugenzi also posted pictures on Instagram. It was Mr. Mugenzi’s wife who called the Respondent to request the Petitioner to stop corresponding with her husband. Mr Mugenzi’s wife, Mukarukonde Josianne, herself testified as RW 4. The thrust of her evidence was that the petitioner lied to her that she is the sister to her husband and that she would take him to Malawi and give him a business there. It was only after she cross- checked her husband’s phone that she found WhaisApp messages that showed that the two were planning to marry. When her husband asked for permission to go to Malawi, she denied him the permission and he smashed her phone in anger. From that time, her husband deserted the family and has been asking for a divorce so he can matty the Petitioner, which | band took a screenshot of himself baving a She she has refused. On one occasion her bus conversation with the Petitioner which he brazenly challenged the Petitioner with. then sent that screen. shot to the Cross-Petttioner. tt was her evidence that prior to the arrival of the Petitioner on the scene, their marviage had been a happy one. The Cross-Petitioner tendered the picture of the said screen shot as part of his evidence. During cross-examination, the Cross-Petitioner admitted that the photo was not taken with ihe Petitioner’s phone but handed over to the Cross-Petitioner and hence subject to manipulation. He further admitted that he could not tell of its authenticity and originality. The Cross-Petitioner also admitted that he had a mere suspicion of a relationship but had He only had a mere suspicion of a not'seen the Petitioner with Mr. Mugenzi together. relationship. The Petitioner visited Mugenzi’s family with his brother and they took cicatnatavHabimana —=«”~=~**~*«CMaatrimonniaf Caisé No, 16 of 2020 Ba wale de 36. 37. ‘old baby with her and no money to return home. It was because of his . pictures: The Petitioner adinited daring cross- -examination ‘that she bad posted on: Instagram pictures of herself with Mr. Mugenzi’ s s mother, his sister — -in— law and his two.) ~ children, She however denied that the suggestive captions that appeated i near those pictures a were not in relation to the pictures they were ascribed to. In’effect, she denied claiming that she had posted pictures with words that suggested an intimate relationship between _ ther. ‘The Petitioner in her evidence stated that there is no relationship with Mr Mugenzi. It was her evidence that when her husband was deported from Zimbabwe, she travelled to Harare but when she arrived at Harare airport she was sent back. Mr. Mugenzi helped her as she was stranded at the airport as he was a member of staff of Rwandair. She had a one-year- kindness to her in het time of need that she felt an affinity towards him, She asked him fo treat her as a brother and that was the basis of their relationship which she claims was pur ely platonic. Despite holding this position, RW4 was never cross-examined all her evidence therefore went undisputed. RW 4 travelled all the way to Malawi from Rwanda because she felt very strongly about what she had to say. No challenge whatsoever was raised against her evidence. However, considering that condonation is a bar to a grant of divorce under section 7 of the Divorce Act and there has been no evidence, on the entirety of the case, to satisfy me that there was no condonation, I cannot return a finding of adultery on the CrOss- Petition. The Petitioner and Cross-Petitioner have both prayed for compensation. There is no reference for compensation in the Divorce Act. Under section 23, a husband can claim damages for adultery, but this is pot the issue. There was no prayer for damages for adultery. Compensation for causing breakdown of marriage is a customary remedy and since this was a marriage under the Marriage Act, I cannot make an order as to compensation. { hereby grant a decree nisi of divorce on the Petition on the ground of cruelty. The Petitioner shall apply within six weeks from the date herein for a decree absolute. Any Giramata vHabimana 2 Mammon eee ee cS mwale. J. "party wishing to show ¢ callise 2 why the decree 2 nisi may ¢ or may not be made absolute shall. . Go 80 before the expiry of the said six weeks.” oe CaN MASE 39, As the nati of distribution of ‘assets and custody has not been determined, I make no: order as to costs, iso order MADE in open court in Lilongwe in the Republic of Malawi this 10% day of January 2022. ty _~ . 4 hk ‘ \ aS . ce i U f Fiona Atunele Mwale JUDGE