Kasegwe v Kasegwe and Another (Civil Cause 333 of 1984) [1986] MWHC 23 (9 June 1986)

Be Sa ee ee ee ee TS a ee eee ee Lae x ST TT SS ee “ See) Ne, ee Se z PRESSES HE HIGH COURT OF MALAWI, BLANTYRE PRINCIPAL REGISTRY CIVIL CAUSE NO. 333 OF 1984 BETWEEN: eee: NANCY KASEGWE ............. cada: .... PETITIONER/ APPLICANT , AND GRASTIN KASEGWE ..........0eeceeeeee ..... RESPONDENT AND MARGRET T. KAMKOSYA ....... beseeeeeeceeses CO+RESPONDENT Coram: BANDA, J. Chimasula Phiri of Counsel for the Petitioner Fachi of Counsel for the Respondent Chalunda, Court Interpreter ORDER This is an application for custody and tha intenance of the ‘ children and also for permanent alimony for the petitioner. The petitioner and the respondent separated in 1983 and their marriage was dissolved by this court on 4th March, 1986. The children, who are the subject matter of this application for custody and maintenance, are Buti, Bob, Omega and Pilirani. Pilirani is the youngest having been born in 1983. Buti, Bob, Omega and Pilirani have stayed with their mother since the petitioner moved away from the matrimonial home in June 1983. Jonathan, who was born in 1980 has since that time stayed with the respondent. The petitioner has stated that she has no objection for Jonathan to continue staying with the respondent. It was the evidence of the petitioner that she has a five bed- room house. She says that all the children except Pilirani are at school at Chisenjeri Full Primary School. Buti is in Standard 35 Bob is in Standard 2, and Omega is in Standard 1. The petitioner stated that since June, 1983, the respondent has never gone to where the petitioner stays to see the children. She conceded, however, that the children occasionally go to see their father and that the father gives to the children some maize and any help that they may we se on, te % ‘ i COURT OF PALA Ee , ‘ ONO e \ 41993 7) Gs MH pt ob ene ZA i ana we the children as she had done in the past. The respondent opposes this application for custody and maintenance on the grounds that the petitioner is in poor health as she suffers from tuberclosis (TB). He states that she has continually been in and out of hospital and that in 1983 she spent three months admitted in Mlambe Hospital. He contends, therefore, that in the event of the petitioner's re-admission into hospital there will be no one to look after the children. He has argued that he himself is in much better position ta look after the children as he has a big house and that he has servants and relatives to look after the children in his absence. The respondent is a businessman. He has a wholesale shop and he is a transporter, having in the past had at least three lorries. There is now a dispute on how many lorries the respondent still has running. In addition to the lorries the respondent has also one Peugeot Box-body and one Datsun Saloon car. He also has a maize mill which is still operating. The respondent stated that the maize mill is not making as much money as he used to as there are now many people who have acquired maize mills in the area. I direct myself that on any application for custody of children I must regard the welfare of the children as the first and paramount consideration. I must not take into account the consideration whether the claim of the father or that of the mother is superior. It is the welfare, interest and happiness of the children which I must consider. As I have indicated earlier in this judgment the present position is that the petitioner has since June, 1983, lived with the four children, namely Buti, Bob, Omega and Pilirani. The respondent has similarly lived with Jonathan. It appears to me that the only objection the respondent raises against the petitioner's application for custody is that she is in poor health and that she is less able of looking after the children than he is. There is no evidence and the respondent conceded that the children are not unhappy with the mother and they have said nothing against her. wail pane’ ahaha Ata e at ; % set?) ties a ryt OF Mayo. Rs cour! Fr ™M ata Wy Sy, I take the view that a servant or a relative cannot properly look after the interest, welfare and happiness of a child to the same extent as a parent would. I was, therefore, tempted to find that the welfare, interest and happiness of Jonathan could not be properly looked after by a servant or relative. However, since the petitioner does not object to the present arrangement of Jonathan continuing to stay with the respondent, I feel that the best approach in the present circumstances is not to disturb that arrangement which has continued up to now. In my judgment the contention that the petitioner, because of her poor health, cannot properly look after the welfare, interest and happiness of the children cannot be accepted. The petitioner has apparently been in poor health for all these years and inspite of that she has brought up 14 children. So, it is clear, therefore, that she is capable of bringing up children inspite of her poor health. I have carefully considered the issue in this case and I have come to the conclusion that the best solution in this case is to grant custody of Buti, Bob, Omega and Pilirani to the petitioner with reasonable access to the respondent. Similarly, I will grant custody of Jonathan to the respondent with reasonable access to the petitioner. The respondent is a businessman having a wholesale, a transport business and a maize mill. I have considered his affidavit of means and I am not satisfied that the respondent made a full disclosure of his income. And it was also clear in his cross-examination by Counsel for the petitioner that he was evasive and was not being truthful in his answers to some of the questions. I am satisfied that the respondent is a man of more means than he is prepared to disclose. Consequently, I order that the resnondent pays K20 per month for each child, namely Buti, Bob, Omega and Pilirani. I am satisfied that the petitioner has no means of her own and her application for permanent alimony deserves favourable consideration by this court. The K10 offer which the respondent has made is, in my judgment, unreasonable and I feel that the respondent is in a tomate heat ig, ses PN a aT OF natad hy ee 90% \e4 2 q- JU 1995) jf 2%, a ae ee _ LIBRARY pose position to afford to pay more than K10. Consequently, I order that the respondent pays to the petitioner a sum of K30 per month as permanent alimony for a period not exceeding the life of the : petitioner. The order for maintenance and alimony will take effect from 30th May, 1986. MADE in Chambers this 9th day of June, 1986 at Blantyre. a a Ae on oe Ferert Si e - Ea. Ke R. A. ee JUDGE