IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

MATRIMONIAL CAUSE NO. 6 OF 1996

BETWEEN

BEATRICE MUNGOMO…………………………………………… PETITIONER

and

BRIAN MUNGOMO……………………………………………… RESPONDENT

and

ROSE CHIPEMBERE……………………………………1ST CO-RESPONDENT

and

DIMINGA SONGO………………………………………2ND CO-RESPONDENT

And

ZHARA IBRAHIM………………………………………… 3RD CO-RESPONDENT

CORAM: UNYOLO, J.
Msisha, Counsel for the Petitioner
Selemani, Official Interpreter/Recorder

JUDGMENT

The petitioner asks for the dissolution of her marriage to the respondent on the
ground of the respondent’s adultery with the co-respondents and also on the ground of
cruelty. Alternatively, the petitioner asks for a declaration that the marriage is nullity on
the ground that at the time the marriage was celebrated, the respondent was married, and
is in fact still married, to another woman. The petition is undefended.

The petitioner and the respondent were lawfully married in July 1987 at Zomba.
The marriage was celebrated under customary law and was duly witnessed by the parties’
marriage advocates, called Ankhoswe in the vernacular. Later, on 8th September 1988,
the couple had the marriage registered at the Blantyre District Council office.
Observably, that process did not in any way alter the status of the marriage. It remained,
and continued to be, a customary marriage: see Pasanje –v- Pasanje, Civil Cause No. 7
of 1986 (unreported).
 After the celebration of the marriage, the parties lived together and cohabited at
Blantyre, later in London, England and finally at Blantyre again. There are two children
of the marriage. Both the petitioner and the respondent are domiciled in Malawi.

With regard to the adultery allegation, the petitioner told the Court that shortly
after she had returned to Malawi from England, she discovered that the respondent was
having an affair with the co-respondents. She said that at first she got a tip-off. Then she
came across birthday cards, with suggestive words endorsed, which the 1st co-respondent
had sent to the respondent. She asked the respondent what was up, but he denied there
was any relationship between him and the 1st co-respondent. It was the petitioner’s
evidence that one day, following another tip-off, she actually found the respondent at the
1st co-respondent’s house at Manase Township at an odd hour. The petitioner told the
Court further about the relationship that existed between the respondent and the other two
co-respondents. She said that at some point, these two women actually had the audacity
to telephone the matrimonial home and brag about their relationship with the respondent
and even tease her.

The most direct evidence on this aspect was given by the second witness, one,
Ndau. This witness told the Court that at all material times he worked for the respondent
as a band caretaker and as a bodyguard. He told the Court of occasions when the
respondent spent nights with the two co-respondents in Zomba, Chigumula and at Capital
Hotel in Lilongwe.

With regard to the allegation of cruelty, the evidence was basically that iven by
the petitioner herself; what her other witness said was largely hearsay. The petitioner said
that relations between her and the respondent were good at first, but that things changed
when they went back to England. She said that the problems arose out of the fact that the
respondent is short-tempered and has a propensity to engage in violence. She told the
Court of instances when the respondent assaulted her, or threatened to assault her, for no
apparent reason or on flimsy grounds. She recounted, among other things, an incident
when, as she and the respondent were chatting with a visitor who had come from
Manchester, the respondent suddenly got annoyed and started hitting her and breaking
things in the house. She said that she got so frightened that she ran out of the house and
sought the assistance of the police. The petitioner also recounted several other incidents
when the respondent hit her or threatened to hit her after they returned to Malawi, causing
her physical injury and mental distress.

As earlier indicated, the petition is not defended. The evidence adduced is,
therefore, uncontroverted. All the same, I bear in mind the fact that the burden is on the
petitioner to prove her case to the requisite standard.

The case raises several issues of some novelty and characteristic difficulty. There
is, for example, the question whether the High Court is competent to dissolve a marriage
contracted under customary law, that is to say, a customary marriage, and if the answer to
this question be in the affirmative, there is a rider question as to what law the Court
would apply in deciding the case. I raised these questions with learned Counsel for the
petitioner at the very commencement of the hearing. I had initially thought that I should
invite learned Counsel to address the Court on these two questions as a preliminary point
and it was only with some doubt and after a good deal of hesitation that I was able to
make up my mind as to what course I ought to take. I decided to hear the case largely
because I was told that the petitioner and her witnesses had come. I, however, pointed out
to learned Counsel that I would subsequently want him to address the Court on these two
questions.

It is common knowledge that cases of this nature, involving petitions for the
dissolution of customary marriages, were in the past brought before the former
Traditional Courts which were set up under the Traditional Courts Act (Cap 3:03) and the
jurisdiction of those courts was specifically conferred by the said Act. While under
section 11 (b) of the Courts Act, the High Court had, and still has, all the jurisdiction and
powers, civil or criminal, which a subordinate court has, the said Traditional Courts fell
outside the ambit of subordinate courts, that is to say, Magistrate’s Courts. They formed a
category of their own. While in the remote past, the High Court could hear appeals from
the Traditional Courts (see Kandoje –v- Mtengerenji (1964-66), ALR (M) 558), the
National Traditional Court of Appeal was subsequently created and given jurisdiction and
powers to hear appeals from the Traditional Courts, and that court was viewed as the final
court of appeal within the Traditional Courts system. The said National Traditional Court
of Appeal is now no more and the lower Traditional Courts also no longer exist, having
been integrated into the Magistrate’s Courts in or about 1995. Observably, these
Magistrate’s Courts at all material times had no jurisdiction or powers to hear divorce
petitions involving customary marriages: see Mudaliar –v- Kayisi (1964-66), ALR (M)
103. It appears that strict sensu this is still the position now.

Be that as it may, it is common knowledge further that the said Traditional Courts,
turned-Magistrate’s Courts, have continued to exercise jurisdiction over customary
marriages even now, long after the integration process described above. I will
deliberately refrain from delving into the question whether or not those courts are
properly exercising jurisdiction. That matter was not argued before me, but it could be
argued that the said courts still have jurisdiction and powers by virtue of the saving
clauses under the Constitution.

Two points were taken by learned Senior Counsel for the petitioner. First, he
contended that this Court is competent to hear the petition in this case on the basis that
the petitioner and the respondent indicated and agreed that the marriage would be a
monogamous marriage and that the petitioner has, therefore, every right to have that
agreement respected. The submission sounds attractive, but I do not think it can prevail.
In my view, it is not just a question of “intention”, the parties must demonstrate their
“intention” by a positive act. In the instant case, it is clear, from the facts, that the parties
are both educated and enlightened. They knew all along how a monogamous marriage
would be contracted, namely, by going either to a District Commissioner’s office or the
Registrar General’s office and marry there under the provisions of the Marriage Act (Cap
25:01). They could have easily married in this way, either in Zomba, where the
customary marriage was contracted, or in Blantyre, where, as earlier indicated, they
resided for sometime after the celebration of the customary marriage. I, therefore, reject
the contention.

Next, learned Senior Counsel contended that this Court is competent to hear the
petition on the basis of section 108 of the new Constitution of the Republic of Malawi,
which provides that the High Court “shall have unlimited original jurisdiction to hear and
determine any civil or criminal proceedings under any law”. The section is very clear and
I would agree with learned Counsel that with such extensive jurisdiction and powers
conferred upon it by the Constitution, which is the supreme law of the land, the High
Court is competent to hear divorce petitions, even in cases involving a customary
marriage as in the present case.

It is to be observed, however, that although this is the position, the High Court has
to look at the matter from a practical point of view. In my judgment, it would be both
inappropriate and wrong for the High Court to proceed and assume jurisdiction over
proceedings which fall within the jurisdiction of a subordinate court simply because the
High Court has, as we have just seen, unlimited original jurisdiction. Such an approach
would create confusion, as parties would be left to their whims to bring proceedings
willy-nilly in the High Court or in a subordinate court, as they pleased. This would also
open the flood gates for trivial cases to come before the High Court. In short, the High
Court should recognize the subordinate courts and decline jurisdiction in matters over
which the subordinate courts have jurisdiction, unless exceptional circumstances exist
which necessitate or require its intervention, that is, the intervention of the High Court.

As to what would amount to exceptional circumstances, that should, in the final

analysis, depend on the facts of the particular case; things like if the case were shown to
be too complicated for the subordinate court, or that the cost of having the case tried in
such courts would be unduly excessive, or that the trial of the case would inevitably be
delayed if undertaken in such subordinate court, may amount to exceptional
circumstances which might justify the intervention of the High Court to exercise original
jurisdiction. The examples here are not exhaustive.

As I have already shown, the Traditional Courts now-turned Magistrate’s Courts

have exercised jurisdiction over divorce petitions involving customary marriages for a
long time. There is nothing complicated, in my view, about the present case. The
appropriate Magistrate’s Court should be able to handle the case easily and expeditiously,
and perhaps cheaply too.

I have considered section 41(2) of the Constitution which gives every person in
this country the right to have access to any court of law. With respect, I don’t think that in
saying the petitioner should bring her petition before a subordinate court, she is thereby
being denied this right, since, as I have shown, there are competent lower courts with
powers and jurisdiction over this type of cases. Indeed, this Court would still be available
later on in the event of an appeal. In short, I am unable to find any exceptional
circumstances in the instant case such as would justify the intervention of this Court. I
would, therefore, dismiss the petition on this score, leaving the petitioner to bring up the
petition before the appropriate subordinate court, if she will be so minded.

I will go on in case it may be found elsewhere that I am wrong in the course I

have taken in this matter and that I should have proceeded to deal with the merits of the
case.

It will be recalled that I recited the evidence given on the part of the petitioner,
albeit rather sketchly, in support of both allegations of adultery and cruelty. The first
observation to be made is that, as earlier indicated, the petition was not defended. The
evidence given by the petitioner and her witnesses was, therefore, uncontroverted. It is to
be observed further that having seen the petitioner and her witnesses as they testified, I
was impressed that they were truthful and credible witnesses. I, therefore, have no
problem accepting their evidence.

It is to be noted that English law applies only to monogamous marriages, not to

polygamous marriages like customary marriages are in this country: see Kandoje –v-
Mtengerenji, supra. It is to be noted further that the former Traditional Courts applied
the customary law prevailing in their respective jurisdictional areas: see section 12(d) of
the Traditional Courts Act. As earlier hinted on, these facts raise the question what law
the Court would apply if it assumed jurisdiction over a divorce petition involving a
customary marriage. The answer to this question is to be found in the Kandoje –v-
Mtengerenji case. The Court stated there that on an appeal from a Traditional Court, the
High Court could apply customary law. In my view, the High Court has, a fortiori, to
apply customary law in determining divorce petitions as a court of first instance.

Talking about adultery, it is important to bear in mind what I have stated earlier,
that a customary marriage is essentially a polygamous marriage. As a result, a husband is
free to contract another customary marriage or, indeed, other customary marriages. He
would not be said to commit adultery as a result of such marriage or marriages. The
position must, however, be different where the husband merely indulges in act of
extramarital sexual intercourse. Such behaviour is obviously immoral and natural law
cannot condone it. In other words, a male spouse who indulges in extramarital, sexual
intercourse, as happened in the present case commits adultery in the eyes of customary
law.

This raises the question whether, in the context of a customary marriage, adultery
by a male spouse is a valid ground for divorce on the part of a female spouse at
customary law. Observably, it is common knowledge that adultery by a female spouse is
a valid ground for divorce on the part of the male spouse. It is really whether the same is
true the other way round. Here, I am indebted to learned Senior Counsel for the petitioner
for the authorities he brought to the Court’s attention. In his treatise, Dr. O Ibik, a
distinguished researcher and expert on African Law, answers this question in the
affirmative: see Restatement of African law, Vol. 2 at p23. With respect, I cannot agree
more. As I have indicated, there is a difference between a husband, in a customary
marriage setting, who marries another woman and a husband who only indulges in an act
or acts of extra-marital sexual intercourse. As we have seen, the latter scenario amounts
to adultery, hence a valid ground for divorce.

Dr. Ibik further states that cruelty is also a valid ground for divorce at customary
law.

In short, I am satisfied that the petitioner is entitled at customary law to ask for
the dissolution of her marriage on the ground of adultery and/or cruelty. There doesn’t
appear to be any bar on the facts obtaining in this case, and I would accordingly have
granted a decree nisi dissolving her marriage to the respondent had I decided to actually
deal with the merits of the case.

I did also indicate that there was an alternative prayer for a declaration that the
marriage between the petitioner and the respondent was a nullity on the ground that the
respondent was married to another woman at the time of the celebration of the marriage
herein. As I understand it, the alleged earlier marriage was also a customary marriage.
With respect, I would have dismissed the prayer for the reason I have already given,
namely, that a male spouse in a customary marriage can legitimately contract another
customary marriage.

PRONOUNCED in open Court this 26th day of September 1997, at Blantyre.

L.E. Unyolo
JUDGE