Makawa v Makawa & Another (Civil Cause 704 of 1985) [1987] MWHC 14 (30 November 1987)

CIVIL CAUSE NQ. 704 OF 1985 BETWEEN : GRENA MAKAWA .........cccenesceces PETITIONER AND DAVIE JAMES ALFRED MAKAWA ........ RESPONDENT AND AGNES LWANDA- 3 44 i eke woes CO-RESPONDENT Coram : The Hon. The Chief Justice. Nampota of Counsel for the Petitioner Respondent. Not present - unrepresented. Manda, Court Reporter Namvenya : Official Interpreter. JUDGEMENT The petitioner prays for dissalution of her marriage with the respondent on the grounds of adultery and crueity. - ow 23rd December, 1978 the petitioner was lawfully married to the respondent at the Registrar General's Office in Blantyre. After the celebration of the marriage the parties lived and cohabited first at St. Mary's and then at Ndola Locations both in Zomba District. The petitioner is working as a clerk with the National Bank of Malawi, Victoria Avenue in Blantyre and is living at Chilomoni. The respondent is working for Ministry of Works and Supplies, Drimp Section, and is stationed at Dowa. Both parties are Malawians and are domiciled in Malawi. This Court, therefore, has jurisdiction to hear this case. Notice of these proceedings were served on the respondent and the co-respondent. No answers were filed in reply to the allegations made in the petition. This petition is therefore undefended, I, accordingly, direct myself to the dangers of collusion in such undefended Cases. I am satisfied, however, that there was no evidence of collusion in bringing these proceedings. ao? 2 There are two children of the marriage namely, Chikondi Makawa, female, born on itth June, 1979 and Thokozgani Makawa, female, born on 25th February, 1981. The petitioner told the Court that the respondent has, since the celebration of the marriage, frequently committed adultery with the co-respordent at Malindi F. P. School in Mangochi District. This resulted in the birth of a child at the end of 1983. The child is called Davie Makawa, Junior. The birth of the child is, in my view, sufficient evidence that sexual intercourse had taken place. The petitioner has not in any way been accessory to or condoned the adultery. In the circum- stances, I am satisfied that the petitioner has proved that the respondent committed adultery. : On the allegation of cruelty, the petitioner told the Court that on 2nd January, 1984 at Ndola Location in Zomba the respondent struck her violent blows in the face and chest with his fist and she sustained cuts on the _ lips and had a swollen chest. She was treated at Zomba General Hospital. It is pertinent to mention that the parties have not lived together since then, : - AS already mentioned above this allegation is not ‘being denied. I am, therefore, satisfied that the petitioner has substantiated the allegation of cruelty, I have considered the evidence in this case and I am satisfied that there is no bar to the granting of the relief sought and I therefore grant the petitioner the decree nisi. The respondent is condemned in the costs of these proceedings. The petitioner will have custody of the children. PRONOUNCED in open Court on this 30th day of November, 1987 at Blantyre. pee © AE ae CHIEF JUSTICE