Sadala v Sadala (Matrimonial Cause 8 of 2016) [2017] MWHC 116 (31 May 2017)

Sada la Eluby Sada la v. Kayisi J. Kenyatta Nyirenda, JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY MATRIMONIAL CAUSE NO. 8 OF 2016 BETWEEN: ELUPHY SAD ALA ....................... ............... ........ ......... PETITIONER -AND- KA YISI SAD ALA ............................... ....................... .. RESPONDENT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mwangomba, Messrs. Chidothe Mr. 0. Chitatu, for the Petitioner of Counsel, of Counsel, and Master, Court Interpreter Respondent the Official for the Kenyatta Nyirenda, J Introduction JUDGEMENT This is a petition marriage Respondent to defend by the Petitioner, Sadala, Kayisi to the Respondent, filed a memorandum the case. Eluphy Sadala, on grounds who seeks dissolution of adultery in which he indicated and cruelty. of her The his intention of appearance Applicable Law There is one very important question that namely, Family Relations Act has to be determined law in this case is the Marriage, or not the applicable or the law existing prior to the enactment whether of the Act. and Divorce at the outset, Eluby Sada la v. Kayisi Sada la Kenyatta Nyirenda, J. 3 of the Marriage, Divorce Section the following terms: and Family Relations Act is relevant and it is in Act shall apply to marriages entered '"[his � operation, celebrated. but Part IX shall apply to all marriages " into on or after the day it comes into regardless of the date they were Divorce The Marriage, 2015 [hereinafter Notice No. 20 of 2015, published referred and Family Relations Act came into operation on 3 to as the "commencement in Government Gazette dated 31st July 2016. date"]: see Government rd July Divorce 3 of the Marriage, Section and unambiguous. in plain language It states entered into on or after the commencement all marriages regardless Cathcart Matrimonial Kay v. Norah Nikkie Cathcart Cause No 11 of 2015, unreported. and Family Relations Act is in my view clear that the Act applies to marriages date, save for Part IX which applies to of the date they were celebrated: James see Hilliard HC/PR Kay and Murray Henderson, between the Petitioner and the Respondent The marriage March 1997. This is well before the commencement reason of s. 3 of the Marriage, herein will still be governed by the law existing Marriage, Divorce within Part IX. and Family Relations Divorce and Family Relations Act, the marriage prior to the enactment of the was entered into on 21st by date. In the premises, Act, save for, of course, matters falling Jurisdiction into the discussion myself that this Court has jurisdiction of the petition, I have to Before delving this matter. Section satisfy of a marriage, the Divorce petitioner has to be domiciled in Malawi at the time when the petition is present to court. Act (Act) requires that, for purposes of dissolution of the circumstances 2 of the ed to attend to Further, s. 7 of the Act provides as follows: for divorce "(I) On a petition can reasonably condonation parties and also to inquire it shall be the duty of the Court to inquire, and whether and whether there has been any connivance any collusion exists which is made against so far as it or the between the petitioner. on the part of the petitioner into any counter-charge can, into the facts alleged (2) If the Court is satisfied that- on the evidence (a)the case for the Petitioner has been proved,· and Eluby Sadala v. Kayisi Sada la Kenyatta Nyirenda, J. (b)where the ground for the petition manner been accessory where the ground of the petition manner condoned the cruelty; and to, or connived is cruelty at, or condoned the petitioner has not in any or the adultery, has not in any the petitioner is adultery, (c)the petition or either of is not presented the Respondents, or prosecuted in collusion with the Respondent the court shall pronounce respect a decree nisi of divorce, it shall dismiss to any of the aforesaid matters, the petition: with but if the Court is not satisfied Provided and may dismiss guilty that the Court shall not be bound to pronounce the petition or, if, in the opinion if it finds that the petitioner of adultery of the Court, been has during the marriage has been guilty- the petitioner a decree nisi of divorce (i)of unreasonable delay in presenting or or prosecuting the petition; (ii)where the ground of the petition or having without cause deserted, herself or from, the other party before is adultery or cruelty, of having without cause wilfully the adultery separated of; himself or complained or cruelty (iii)where the ground of the petition without to the adultery desertion conduced cause, of such wilful neglect or unsoundness is adultery or unsoundness of mind or as has or misconduct of mind or desertion" in Blantyre. their marriage case, the parties contracted of Marriages in Malawi. In the present office of the Registrar times been domiciled Petitioner and Respondent as they gave their evidence, I the petition has not been any proceedings premises, this Court is satisfied matter on its merits. on 21 st March 1997 at the The parties have at all material acrimony between the can safely conclude that The Court has also been told that there before any court with regard to this marriage. In the and will now determine the was not brought in collusion. Based on the palpable as to its jurisdiction The Petition Paragraphs follows: 6 and 7 of the petition deal with grounds for divorce and they read as "6. THAT the Respondent in a manner that has culminated The issues hinge on infidelity mainly and cruelty. has since celebration of the marriage in irretrievable breakdown treated the petitioner of their marriage. Eluby Sadala v. Kayisi Sadala Particulars o{infidelity Kenyatta Nyirenda, J. (i)The marriage has been rocked with instances of infidelity he became Acting Chief on the part of Executive the respondent. Bank. Officer of Malawi Savings This got worse when (ii)The petitioner recently with one Jacqueline (sic) The Respondent discovered that the Respondent has a 7 years child Jumbe who was previously only got to know about it on 8 his secretary th March, 2016. at Indefund. (iii)The petitioner also recently discovered out with one Kekha Njobvu who resides 9 years old child with this woman. that the Respondent Kingdom. in the United is also going He has a (iv)The petitioner also discovered that the Respondent with one Habiba Maganga. 2016. She later discovered lady informing Respondent This discovery that the Respondent her that there was no existing and the Petitioner. wrote an e-mail between the marriage to this has been going out was made on 141h February, (v)The petitioner discovered Chibweya, that the Respondent Mwiza Luhanga, Chrissy has many other girl friends Ajawa and Hupekire such as Getrude Manguluti a few. just to mention (vi)The Respondent infidelity her to continue. has blatantly told the Respondent (sic) that the zssue of wants the marriage with is irreconcilable and that he no longer Particulars of Cruelty (i) The Respondent intensified his womanizing incapacitated Chirimba following th May, 2015. on 13 a fatal accident when the petitioner was in at that she was involved (ii)After mediation that she move out of the matrimonial talks held on 1 ih May, 2016 the Respondent bedroom. demanded (iii)The petitioner refused to move out of the matrimonial bedroom but the Respondent has not been talking to her since then. (iv)The respondent stopped eating food prepared by the petitioner. (v)The respondent told his children (from different were staying with that the marriage women) with whom the him and her was between parties over. Eluby Sada la v. Kayisi Sada la Kenyatta Nyirenda, J. (vi)The respondent ordered food and the respondent food. that the petitioner and her children her own should be cooking their own will also be cooking (vii)The respondent agreement for divorce. has on several occasions pushed the petitioner to sign an (viii)The Respondent severely beat up the Petitioner on 15th August 2016. 7. The petitioner pleads that the marriage between the parties has irretrievably broken down. ends with a prayer (b) the matrimonial The petition dissolved, the Petitioner Respondent be condemned in costs. be granted such other property be equally shared between may deem fit and ( d) the as the Court reliefs ( c) for four reliefs, namely, that (a) the marriage the parties, be Affidavits were sworn in support Three affidavits affidavit Petitioner On the other hand, two affidavits were affidavit sworn by the Petitioner on 18th November 2016 and an affidavit filed on behalf and an affidavit to the petition in response by Mr. Frank Patani of the Respondent, sworn by the Mwase. that.is, an Ussi Mchepa. of the Petition for Divorce, on 16th August 2016, an affidavit namely, an by Mr. Richard I have read the affidavits therein case, namely, will as much as possible have a peripheral adultery 'and I wish to observe relevance and cruelty. to the main issues At the expense matters stick to relevant only. that a number of matters for determination covered in this the obvious, the Court of stating Evidence The Petitioner relevant Petition covered (PW 1) adopted part of her evidence for Divorce. in the Petition I will, therefore, for Divorce. is similar as her evidence in material respects now only dwell on critical in chief. The in the to the averments not matters her two affidavits in 1997, the Respondent requested that his children from At the time of marriage his previous brought two children one Suzgo Nyirenda. another request. relationships should be brought up within the matrimonial home. He named Suwira and Aisha. He bore these two children with to bring the Petitioner In 2007, the Respondent requested child that he bore with one Gloria Likupe and the Petitioner agree to the Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J. that she came to know of it on 14th February, As regards the Respondent's testified that he had bought valentine actually written this fact on his facebook. flowers for both of them and the Petitioner had with one Habiba Maganga, 2016 when she found out relationship the Petitioner confessed further testified that at a meeting held on 9th April 2016, the that he has a child named Tiara with Jacqueline Jumbe. She the issue of Tiara with the Respondent The Petitioner Respondent denied ever discussing 2016. She came to know about Tiara when she discovered units by the Respondent her to find out where the airtime units were going and that he did not care about her. That gave her a clue that something concerned. She wa matter this development and immediatly to his relatives. s angered by to Jacqueline reported this prior to gth March, remittance s of airtime is was going on as far as infidelity Jumbe. The Petitioner openly challenged As regards testimony: the allegation of cruelty, the Petitioner gave the following additional (a)the Respondent stopped talking to the Petitioner in the same house and sleeping in the same bedroom and on although they were staying the same bed; (b)after the second communicates and e-mails; mediation session, with the Petitioner using social the Respondent only media, text messaging (c)the Respondent his even divided the house into two and ordered children bought by her; to stop communicating with the Petitioner or to use anything (d)as regards the beating that she suffered at the hands of the of 18th she gave the following narration in her affidavit Respondent, November 2016: "II. It is not true that the incident on I 5 from a phone conversation th August 20 I 6 was triggered by me. It which I had with my friends. who are not him when he and beat me the door. Blood was times and I fell down unconscious towards of his because to reach for my phone and originated alleged that I was talking mannered. I responded was talking several coming out of my nose and my right cheek was swollen blows on me. After 2 or 3 minutes gossipers to my fellow whores and disturb That is when he was enraged to him back to say I didn't to his girlfriends. I managed He • "' Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J. my relatives which can be verified and my friends to tell them what was going on. I took as it shows date and time it was taken. called a self picture By that time blood was coming from my nose and I was defenceless. took a mop and tried to clean the pool made any attempt them that they were fighting brother matrimonial hospital. "PIO". friends and he told his him out of the but he could not even take me to the and mark it He but never of blood on the floor and told Shasha that he beat her because home. I was injured to help me. He now was busy calling a record of the treatment I got at hospital she was chasing properties I exhibit of family because 12. When Mr. Frank Mwase came to take me to hospital he told him that I was as he told his he was quizzed because his earlier statements). When I fell down and not that we were fighting injured friends (contradicting Mr. Frank Mwase as to why he could not take me to hospital was paja inu mumapanga zamadrama eti referring that I locked Mwase). He further and I wanted to commit suicide. statement sleeping many varying friends. and that enraged and contradicting I said that he was him so much. There are so which he has told his to the job of Mr. Frank myself Station to the effect that he beat me up because I did not exaggerate explanations with his daughter in the bedroom he gave a false told some friends At the Police by (his response anything at all. " The Petitioner the Board Respondent Respondent Exhibit tendered the Marriage of Malawi Savings was going out with his wife as Exhibit listing women to whom the Respondent Bank wherein Pl, a letter as Exhibit the author complains written money as writ.ten to that the by the had been sending P2, documents Certificate P4. she got at hospital as of the treatment P3 and a record Exhibit the Petitioner In cross-examination, Exhibit that (a) tendered. She admitted to the Board it show that it was addressed sending (b)she did not see the Respondent conceded village. on the exhibits the author Chairp erson of Mala�i Savings She also as alleged. money to the ladies with Chrissy Ajawa at his home sleeping that she never saw the Respondent that they were no longer was pressed P2 neither together. Finally, she stated thereof states nor does Bank, that she had In re-examination, husband and wife on 6th or ih March 2016. stated the Petitioner that she last slept with the Respondent as a one witness, The Petitioner called in chief. as his evidence his affidavit called 2016, the Petitioner August, When he got to the home of the Sadalas, transpired: khonde and the following Mr. Frank Potani In a nutshell, him and requested Mwase (PW2). PW2 adopted his testimony is that on 15th him to take her to hospital. he found the Respondent on the sitting Eluby Sada la v. Kayisi Sada la Kenyatta Nyirenda, J. "7. I told him why I had come to the house and he told me that there was no problem and everything was fine. 8. I insisted wanted to see her. that I wanted to see the petitioner. He went in and told her that I 9. The Respondent came back to the Khonde and told me that the Petitioner had slipped and in process injured herself I 0. The petitioner presumed to remind her that I wanted to meet her. did not come out and the Respondent went into the house again. I 11. The respondent some things that he had beaten indirect admission came out again and this time told me that the petitioner had said to him which he could not take and he reacted. I took this to be an up the petitioner. 12. The respondent in the living told me that I could go in and meet the petitioner who was sitting room. I met her and found that her face was bloody and swollen. 13. I told the Respondent that I was taking her to the hospital for medical attention. 14. I picked the petitioner and first went to Chileka Police Station to get a referral letter. 15. The police Hospital gave her the letter where the petitioner " was treated. and from there we went to Mwaiwathu Private In cross examination, and she had blood around the mouth, nose and eyes. PW2 stated that the Petitioner was swollen around the face his affidavit (DWI) adopted that the Petitioner the truth is that he informed The Respondent chief. He disputed because which was immediately Tiara was discussed between agreed that the relationship between should end immediately surname. and this constituted came to know of Tiara on. gth March 2016 of the same in December the Petitioner that the issue of it was whereat and that the Tiara should not be using after the birth of the child. and the Respondent the Respondent the Petitioner He insisted his name as her and the mother of Tiara his evidence in DWI questioned that it is not true that he does not talk to or communicate also denied that he stopped the authenticity IP 2 and IP 3. DWI also maintained with the Petitioner. by the Petitioner. food prepared of Exhibits eating He Regarding triggered the incident of 15th August 2016, DWI testified that, on the material that the incident day, the Petitioner was was by the Petitioner. He stated Eluby Sadala v. Kayisi Sadala Kenyatta J. Nyirenda, the Respondent pestering violent and in the process of defending himself herself. According house and find a g to DW2, this was deliberate to obtain divorce papers. She got angry and became she fell down and slightly hurt plan to find an excuse to leave the proceedings. round for her to institute divorce In c·ross examination, marriage his name is Dialo. marriage with Jacquelin advocates DWI admitted Jumbe. The child was born on 26th November, that he has sired one child outside the 2009 and and He, however, were aware of this at all material insisted times. that the Petitioner, his relations the Petitioner except had planned her to get a divorce. DWI stated In re-examination, twenty years of their marriage believes this would enable fact that (a) prior to this incident, from the matrimonial very early in the morning the incident, pestering her relatives she had already to leave, him to divorce and the police. home in preparation to provoke she called that he had never beaten the Petitioner for the one incident on 15th August 2016. in the He him so that he should To substantiate his belief, beat her and to the he pointed her belongings started removing (b) on this day, she had started her, and ( c) immediately after DWI reiterated notified she did not have children. his wife of this and they agreed to keep it out of public domain because meeting that after the reconciliation on He further stated that he had sired a child with Jacquelin Jumbe in 2009. He 9th April, 2016 they contnued to married people do. live as h that usband and wife, doing everything He adopted Ussi Mchepa. DW2 was Richard He stated Petitioner knowledge, the Petitioner until 2003 when marital that he is one of the Respondent's and he has been so since the start of their marriage and the Respondent between as his evidence in his marriage to the in 1997. To his staying had been peacefully the two started: his affidavit advocates problems in chief. together "13. THAT I had never been called for family a call from my other brother, for the Respondent. who said that she was leaving received advocate herein behavior of infidelity. issues therefrom until 2016 when I who is also my co­ Muhammad Sadala, He told me that he was called by the Petitioner the Respondent as she was tired with his 14. THAT I then called the Respondent to enquire in their family. about the petitioner's He told me that, since he stopped up and that things, and acting had been misbehaving allegations in and as to how they were staying working, their family, the Petitioner were not as before as there was now no peace at all. Eluby Sada la v. Kayisi Sada la Kenyatta Nyirenda, J. 15. THAT together with Abdul Banda and Muhammad Sadala, went to Blantyre respectively, namely; Chematindiri, Mable Nyirenda, two sides sat down on 9 Respondent. th April, where we met 4 people Alfred Golosi and Jane Maunda. The and the 2016 to hear from both the Petitioner my uncle and brother family from the Petitioners 16. THAT it was the petitioner's of infidelity. respondent because with the story that she wanted to separate 17. THAT the Respondent denied the allegations Petitioner's work in July, 2015, the stopped Petitioner started accusing him and was constantly said knife to the meeting him and his children threatening as evidence. being rude to him, denying of bewitching changed. He said that the and even for the her. She even stopped cooking He even brought to kill him with a knife. him conjugal rights of infidelity. behavior He stated that since he 18. THAT the petitioner did not deny all what the Respondent alleged. Consequently, apologized on her behalf again and we left the two to reconcile her relatives between Petitioner themselves. was engaged During the meeting, in extra marital relationships. no evidence was found that the 19. THAT a month after the said meeting, I again got a call from Muhammad Sadala concerning the same issues in the Respondent's marriage. 20. THAT I therefore went, together where we also met some people to Blantyre with the said Muhammad Sadala Abdul B�nda, from the Petitioner's family. 21. THAT We had'a meeting with the parties Petitioner Respondent the Respondent that the accused alleged of stealing Petitioner continued to kill him. threatening herein on 1 ih May, 2016 where the her money. On the other hand, the 22. THAT Upon discussing the two should be sleeping Petitioner Respondent would no longer be threatening would not be having access rooms as the same would mean that the and also that the money. the Respondent alleged to the Petitioner's we, the respondents Advocates, the issues, in different proposed that 23. THAT I repeat paragraph 22 hereof and state that the Petitioner's relatives denied our proposal thus, we left without agreeing on one thing. " that is not aware that the Respondent has outside DW2 stated In cross-examination, children during a mediation remember the issue of the child was said during and not at the first meeting marriage session the name of the mother. of 9th April 2016. except for one child whom he came to know about in 2016. The child is called He clarified that two meetings Dialo but he does not took place and held on 14th May 2016 the second meeting Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J. It was also his testimony of 9 the Respondent Respondent was a w during the meeting omanizer. that it is the Petitioner who raised the issue of infidelity of th April, 2016. Her complaint was that the The Law I now wish to remind myself about the nature of these proceedings. 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 Redpath and Milligan higher the standard nature, although not as civil cases in which it is only on the preponderance of probability, high as in criminal cases in which it has to be beyond reasonable doubt: See Yotamu v. Yotamu [1995) 2 MLR 702, Macione v. Maclune 9 MLR 409 and Kamlangira [1950) 1 ALL E. R. 600. Though divorce cases are civil in is slightly of proof in such cases v. Kamlangila of innocence: ALR Mal 301. [1966-68) than in other ordinary see Redpath v. It is trite that 5 of the Act outlines insanity Section cruelty, guilty of rape, sodomy or bestiali part of s. 5 of the Act: or that the husband five grounds of divorce; namely, has since the celebration adultery, of the marriage been desertion, ty. It may not be out of place to quote the relevant "A petition for divorce on the ground that the respondent may be presented - to the Court either by the husband or the wife (a) has since the celebration o(the marriage or committed adultery; (c) has since the celebration cruelty: ... " -Emphasis by underlining supplied of the marriage treated the petitioner with Adultery Adultery spouses is defined a voluntary act of sexual intercourse between one of the and another person: see Hayter v. Hayter (1991) 14 MLR 94. Counsel to prove that the Respondent Mwagomba submitted that there is sufficient adultery committed case in the present Jumbe: with Jacquline evidence case, the petitioner discovered has a 7 years old child with one Jacquline "Coming to the present respondent secretary going out with one Ketha Njobvu who resides old child with her. The petitioner at Jndefund. on 8111 March, 2016 that the Jumbe who was previously his that the respondent is also Kingdom and has a 9 years also recently discovered in the United Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J. has admitted that he indeed by the petitioner has a child with Jacquiline Jumbe. on 81h March, 2016 and the discovery was of problems My Lord, the respondent This fact was only discovered the beginning Tf e submit that the petitioner by Section prescribed standard applicable law in this matter) in the family. has proven the adultery beyond reasonable doubt and the 7(2) of the Divorce Act (Cap. 25:04, which is the has been met (see also Muthali v Muthali 8 MLR 101). Mwagomba also contended that there was no condonation on the part of Counsel with respect the Petitioner Jacqueline Jumbe. He invited March, 2016 and this was before the Respondent had fathered to the adultery committed the Court to note that the parties on g the Petitioner a child with Jacqueline discovered Jumbe. by the Respondent last had sex on i11 th March, 2016 that with Counsel Mwagomba also advanced an alternative view regarding condonation: "The respondent did to bring this defence attempt raised respond in the written on the same. " not plead any defence of condonation in this matter. Therefore, any through oral evidence has no basis. It must have been response. This could have given the Petitioner an opportunity to Mwagomba cited the case of Malawi Railways Ltd v for the proposition P. T. K. Nyasulu that the�e is a Counsel MSCA Civil Appeal No. 13 of 1992 as authority duty on every party to the proceedings will rely upon at the trial them at the trial. otherwise to plead all material the party is not entitled facts which the party to give any evidence of Mwagomba further submitted that the Petitioner Counsel the Respondent the Petitioner has many other girlfriends and the Respondent is irreconcilable. that the issue of infidelity had also discovered has blatantly that told Mwagomba concluded on this ground by submitting has children with other women and that the children that the fact that the were born when Counsel Respondent the marriage evidence between himself that the Respondent and the Petitioner was subsisting committed adultery and is in fact an adulterous is conclusive man. Counsel to discharge in the Petition Submissions Chidothe, the burden placed on her to prove the alleged on the other hand, holds the view that the Petitioner has failed set out acts of adultery Final Written in the Respondent's for Divorce. This is covered from page 34 to 37 as follows: alleges "The Petitioner clearly the authorities and opportunity that the Respondent demonstrate to intercourse for sexual adultery establish to take place. With regard one must prove undue to all the women women. As familiarity engaged in adultery with various Eluby Sada la v. Kayisi Sada la J. Kenyatta Nyirenda, Jumbe the Petitioner has failed 2016 the Respondent wrote an e-mail to Habiba to prove these elements. her that there was no existing marriage between The allegation of airtime her and the being sent to the women was not proved in Court to the requisite the elements In terms of the evidence women. Neither standard. of undue familiarity the Petitioner to have sexual an opportunity has never seen the Respondent with was seen was there evidence affording to show that the Respondent intercourse to was for sexual that the Respondent opportunity person complained That notwithstanding that a certain the same. Besides save for Jacqueline was devoid of any evidence. that on 14th February, mentioned The allegation Maganga informing Respondent alleged the same did not establish intercourse. the alleged with these women at all or in situations take place. The allegation going out with his wife was not proved as exhibit proving inter alia, had no author Chairperson unsigned with regard to Chrissy opportunity testified gave a contradictory Chrissy the part of the Petitioner position and Chrissy saw the Respondent or in circumstances Petitioner intercourse that she never saw the Respondent statement Ajawa. These contradictory she was not able to demonstrate Ajawa. And even when she testified of Malawi Savings to commit sexual and renders by stating document thus failed Bank or which any person including Ajawa there was no evidence on was far from "P2" which was relied and not reliable not authentic as it, the document was clearly to the Board that it was addressed its a mere typed and did not show or indicate elements. any destination. the Petitioner In cross-examination proving undue familiarity Besides Even could just prepare. and the Petitioner she Ajawa. In re-examination with lack of honesty on to this prejudice Without demonstrates unreliable. that she at some point saw the Respondent statements her evidence clearly with Chrissy undue familiarity on the part of the Respondent that she at some point Ajawa she did not testify that she saw them at a place in re-examination with Chrissy affording to prove adultery between for sexual the Respondent intercourse and Chrissy an opportunity to take place. The Ajawa. The Respondent has a 9 year old child with Kekha Njobvu let alone that the Respondent adultery to adduce evidence to prove her allegation with this woman. faileq. that the Respondent committed Chidothe Counsel condonation Written Submissions: also put forward an alternative position. and is to be found on pages 36 and 37 of the Respondent's to This relates Final in sexual intercourse. was proven with regard that after these discoveries to these women, which is the parties continued demonstrates engaging life including "Even if it was to be taken that adultery not the case, the evidence their normal married just takes the evidence with the Petitioner examination she stated effect that she stopped Respondent evidence discovering in sex with the Respondent that the Respondent of the Petitioner that she last engaged alone who testified around 6th or ih March, 2016 in re-examination that it was after 181h March, 2016. Her testimony in sex with the Respondent engaging Jumbe a discovery had a child with Jacqueline was to the that the after discovery which in terms of her that after purportedly was done on 8th March, 2016. She never testified while in cross­ or treating him as her husband. All this demonstrates that was going out with the said ladies she stopped engaging This is clear if one in sex v. Kayisi Eluby Sadala Sadala Kenyatta Nyirenda, J. the with regard to these ladies adultery in proving for divorce had succeeded a ground even if the Petitioner same cannot constitute With regard to the issue of Jacqueline a child with him who was born in 2009. The bone of contention became aware of this and whether Petitioner testified child with Jacqueline makes no sense at all. The relevant that she discovered Jumbe on 8th March, 2016. Her evidence in cross-examination Jumbe there is no dispute part of her testimony there was condo nation in respect is as follows: on the ground that there was of this adultery. The that the Respondent had a in chief on this aspect condonation. has that the Respondent is when the Petitioner testifies 2016. Reading confession confessed to Chichewa of his infidelity was these two statements the Petitioner talks held on 9th April, says it was made on 8th March, 2016 and on the other on 9th April, that the Respondent this child on 8th March, 2016 and she quotes the alleged Just after that quote she says "This stunning In the first part of this testimony have fathered confession. made at the first mediation shows that they make no sense on when the confession Petitioner More confusing and immediately to her relatives were in attendance. credibility honesty, informed the Petitioner 2009. He actually they had agreed not to make this known to other people including respect is the fact that she later says that she was angered reported of a child with Jacqueline that the Petitioner to her relatives. was made at a mediation and reliability. of his fathering All this demonstrates when the confession that considering The Respondent of facts lacks version that the Petitioner's that he on the other hand testified Jumbe in December, children for by this development how she would report was made as on the one hand the their relatives was not bearing " purposes. One wonders the matter meeting stated 2016. where her relatives I am most grateful to both Counsel for their respective submissions. I that mere opportunity is not proof of adultery and that adultery cannot be merely on suspicion. Suspicion must be accompanied by evidence of to show that there was and opportunity. There must be evidence It is trite established undue familiarity opportunity and Chirwa v. Chirwa [1996] for adultery MLR 452. to have been committed: AC 7 see Ross v. Ross [1930] It is also the case that it is not always possible In the words of Mzikamanda, Donata Chakanza MLR 72 at 76: [2007] J, as he then was, in Captain to prove adultery by direct Kingstone evidence. Mbewe v. be caught adultery and Another will people will be inferred committing from circumstance [1997] 1 MLR 446,· Panjwani "Very rarely adultery [1997] 1 v Chafukira MLR 142,· Mhango v. Mhango (I) [1993} 16(2) MLR 613. This is not to suggest that in any given case .... In Mhango v Mhango [1993] 16(2) adultery MLR 613 Mtambo J as he then was having noted that adultery evidence, in the act of adultery. a particular v. Panjwani must be proved which leave no doubt that adultery proved by direct was committed. case (see Chafukira and others may be inferred surrounding conditions Often times is rarely easily Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J. unless documents, was so intimate be assumed of the parties may reasonably The mere fact that people are together offence is insufficient, association that adultery .. . There must be evidence must lead guarded having adultery, amounts that mere cohabitation of strong discretion been committed. to adultery the case of Tembo v Tembo and Another of reasonable ... Having noted the need for ample evidence and just man to probability from which to infer of adultery [1995} 1 MLR 331 further are not married." where the parties observed in an environment diaries to commission or antecedent conduct of the show the letters, leading and their mutual passion as a result inclination with opportunity of an opportunity so great and clear for its occurrence. and the circumstances Having given the matter at hand a careful and exhaustive decide which story is more probable is concerned, adultery consistency, honesty, the inevitable burden placed firm conclusion on her to prove the alleged I was least impressed and reliability. that the Petitioner acts of adultery. credibility by the Petitioner's version: it lacks In these circumstances I come to the legal has failed to discharge than the other. In so far as the charge of consideration, I have to I wish to observe adultery Petition Unfortunately, 7 of the Divorce section respondent that I am not surprised that the Petitioner has failed to prove A perusal of the standard. on the part of the Respondent of Divorce shows that the Petitioner to the requisite had set out to prove infidelity. infidelity per say (without Act. The provision more) is not a ground for divorce to prove that a adultery". a petitioner committed requires under "has since the celebration of the marriage to In any case, even if the c;ourt were to hold that the there was sufficient had committed prove that the Respondent Jumbe, I would be inclined to agree with Counsel condoned by the Petitioner. an act of adultery that the same was evidence with Jacqueline Chidothe is defined as the reinstatement a matrimonial "Condonation" of a spouse who has committed known to the other spouse, see Hearn v. Hearn [1969] 3 All ER 417. Condonation resumption Henderson position in his or her former marital facts are wrong of which all material the wrong: and remitting of forgiving can take place a without by Lord Simon in terms: of sexual intercourse. v. Henderson 1 All ER 45 in the following with the intention was explained The principle [1944] is (taking the case where it is the wife who has been guilty of of the matter offence) "The essence matrimonial forgive this further circumstances, received taken place". that the husband her and should confirm his forgiveness offence should her as his wife. Whether on intercourse goes to the length of connubial for there may be cases where it is enough to say that the wife has been reinstatement by reinstating with knowledge of the wife's depends back into the position of wife in the home, though further intercourse has not v. Kayisi Eluby Sadala Sadala Kenyatta Nyirenda, J. remain, without where the parties home after one spouse has gained knowledge Further, matrimonial guilt, the question whether condonation is to be in saple roof is in essence a q 848 at pages 855 and 856. ferred from continuance under the ll ER having sexual intercourse, uestion of fact: see Burch v. Burch ([1958] 1 A of the other spouse's in the same having sexual of revulsion. is that she stopped the Court that the cessation I am not persuaded. It will be recalled of the Petitioner with the Respondent upon discovering on 8th March, 2016 that the Jumbe. The Petitioner had sired child with Jacquline In the present case, the testimony intercourse Respondent sought to convince expression alleged discovery having taken place on 8th March 2016, the unchallenged evidence is that the Petitioner and the Respondent bed until 15th August 2016. It is my finding matrimonial continued or resumed conjugal Respondent least five months from 8th March 2016 and 15th August, the Respondent condoned and, consequently, present proceedings. sharing the that the Petitioner and the during the period of at 2016. In the premises, if Jumbe, the same was fully a ground for divorce was an that despite the of sexual intercourse adultery with Jacquline cohabitation at all committed the same cannot continued constitute desperately in the cannot lead any evidence pertaining to condonation by Counsel Mwagomba that the Section in this matter 7(2) of the the that, among other matters, To my mind, the issue of condonation he did not plead the same may not be out of order. a comment on the suggestion 5he Court to be satisfied the adultery. Before resting, Respondent because Divorce Act enjoins petitioner has not condoned does not have to be specifically Court is duty bound to do so per the requirements Act. Of course, merely contest petitioner's Divorce way of cross-petition Act. In such a case, the ground being relied different considerations but also opposes and evidence the petition the relief of section 7(2) of the Divorce apply where the respondent does not sought on the ground of the would have to be led to prove the same. on would have to be raised by adultery, cruelty or desertion without cause: see section 10 of the raised by a party for the Court to consider it: the Cruelty "Cruelty" such character or as to give rise to a reasonable apprehension of such danger. " was defined in Chirwa v. Chirwa [1996] MLR 452 as "conduct of as to have caused danger to life, limb, or health bodily or mental case, there is uncontroverted evidence that the Respondent (a) In the present stopped Petitioner eating food prepared by the Petitioner (b) would not talk to the for many weeks although they were staying in the same house and Eluby Sadala v. Kayisi Sadala Kenyatta Nyirenda, J . in the same bedroom, (c) told his children (from different were staying sleeping the parties was over, ( d) ordered that the Petitioner Respondent and his children severely beat up the Petitioner on 15 will also be cooking th August 2016. with that the marriage between women) whom and him the Petitioner her own food and the their own food; and ( e) be cooking should As ·was aptly observed [2006] MLR 128 by Nyirenda question should be: in Fainess Tanil Majamanda v. Patrick M Majamanda J, as he then was, in determining cruelty, the "Would any right thinking person behaved taking parties?" in such a way that the wife cannot reasonably the whole of the circumstances and the characters come to the conclusion be expected to live with him of the and personalities that this husband has Applying the test laid down in Fainess Majamanda, established cruelty Petitioner did not condone the acts of cruelty supra, to the present Tanil Majamanda v. Patrick M that the Petitioner case, I am satisfied has that the on the part of the Respondent. I am also satisfied on the part of the Petitioner. Conclusion All in all, cruelty is a ground for divorce. The Petitioner has requisite standard. I, accordingly, ground of cruelty. and visitation absolute. ground, each party will bear its For avoidance of doubt, issues pertaining to custody will be dealt with once, if at all, the Petitioner to the proved cruelty grant the Petitioner decree nisi of divorce on the of the child has succeeded on one ground and failed on the other As the Petitioner rights own costs. It is so ordered. obtains decree Pronounced Malawi. in Court this 31st day of May 201 7 at Blantyre in the Republic of Kenyatta Nyirenda JUDGE 17