Mlenga v Mlenga (Civil Cause 93 of 1987) [1987] MWHC 23 (13 July 1987)

7 we IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 93 OF 1987 go ov ieassqenn™ gr BETWEEN: MERCY MLENGA ...........00.cceecueee ae ~-PETITIONER - and - - " ALEC MLENGA ........ ites so ce eee Casexcasvcaess RESPONDENT Coram: UNYOLO, J. Mhone, Legal Aid Advocate, Counsel for the Petitioner Respondent, absent, unrepresented Manda, Court Reporter Namvenya, Official Interpreter ote JUDGMENT This is a wife's petition for divorce on the grounds oe of cruelty. It is undefended. The petitioner and the respondent were married at the Office of the Registrar General in Blantyre on the 16th © August, 1969. Both of them are Malawians, resident and domicile in this country. After the celebration of the marriage th f parties lived and cohabited together firstly at Chilomoni then at Chimwankhunda and finally again at Chilomoni, in the City { of Blantyre. There are four children of the marriage; two j boys and two girls. Pausing there let me say something about the law. Firstly, I remind mysel* that although the petition is, as % © I have indicated, not defended the onus is upon the petitioner ; to prove the cruelty alleged and prove it to the requisite standard. It is trite that in ordinary civil cases the standard of proof is one on a preponderance of probability. In divorce cases, however, the standard of proof is slightly higher though, of course, it need not reach that required in criminal cases viz. proof beyond a reasonable doubt. Vide Nyangulu v. Nyangulu, Civil Cause No. 108 of 1982 (unreported). Secondly, it is to be observed that for a petition of divorce to succeed on the grounds of cruelty the petitioner must prove that the conduct complained of as being cruel caused some injury or danger to health or a reasonable apprehension thereof. Vide Russel v. Russel. (1895) p.315, a leading English case which has been. we adopted by courts in this country this aspect. - é s " * a * ? = * Referring to the evidence it is to be observed that the petitioner was the only witness. She gave evidence touching, in detail, on the incidents of cruelty alleged in her petition. Her evidence emerged uncontradicted and unshaken. Indeed she gave me the impression that she was a truthful witness. I see no reason to doubt what she said. Put briefly, it is in her evidence that her marriage to the respondent was a happy one but only for the first few years. Things changed in 1981 when the respondent took to picking quarrels with her and beating her. She said that on several occasions ghe was assaulted so badly that she sustained actual, physical injuries about her body necessitating medical treatment. She tendered in evidence a medical report, Exhibit 2, which was submitted by her doctor after she was severely beaten by the respondent in July, 1982. The said medical report tells its own story. The injuries inflicted were serious. The petitioner testified that she tried her best to put up with the respondent's pugnacity with a view to giving the marriage a chance to continue but the final stroke came in July, 1986, when, after another assault and battery, she feared for her lifé and walked out on the respondent. She emphasized that the matrimonial home had, as a result of the respondent's conduct and behaviour, turned into a house of horror and bondage, hence the exodus I have referred to above. She has since not gone back to the matrimonial home to Recume cohabitation with the respondent. She had not forgiven him, she added. In short, I am satisfied to the requisite standard that the allegation of cruelty has been proved and I am further satisfied that there is no bar to my granting a decree. Accordingly, FI pronounce a decree nisi that the marriage between the petitioner and the respondent be dissolved on the grounds of cruelty. I adjourn to Chambers the question of the custody and maintenance of the children of the marriage. The respondent is condemned in costs of the petition. PRONOUNCED in open Court this 13th day of July, 1987, at Blantyre. f { L. E/% Unyolo JUDGE sa