IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

MATRIMONIAL
CAUSE NO 8 OF 2004

BETWEEN
:

MIRIAM
GOLIATI ………………………………… PETITIONER

-and-

DANIEL
GOLIATI ………………………………….RESPONDENT

JOYCE
MASI………………………………………CO-RESPONDENT

CORAM : HON.
JUSTICE A.K.C. NYIRENDA

Kalimba;
Counsel for the Plaintiff

Malera;
Counsel for the Defendant

Njirayafa;
Court Interpreter

Mthunzi;
Court Reporter

J
U D G M E N T

HONOURABLE
JUSTICE A.K.C. NYIRENDA

Mirriam
Goliati hereinafter referred to as the petitioner seeks the
dissolution of her marriage to Daniel Goliati, hereinafter
referred
to as the respondent; on the grounds of cruelty and adultery. The
respondent in turn has cross petitioned for dissolution
of the
marriage on the ground of cruelty and adultery as well.

On
the onset I remind myself of a number of issues that I must bear in
mind in the determination of the petition. The first
is with regard
to this court’s jurisdiction. Fortunately this issue need not
cause further consideration in the instant case
where both the
petitioner and the respondent are Malawian nations resident and
domiciled in Malawi. The marriage between them
was entered into at
the District Commissioner’s office in Lilongwe the Capital City of
this country. There is a marriage certificate
exhibit P1 in
evidence thereof.

The
second issue is the possibility of collusion between the petitioner
and the respondent. I can say even this early in my judgment
that I
did not trace any possibility of collusion.

The
third issue is the burden and standard of proof. The burden of
proof is obviously on the party that alleges an issue to establish

proof thereof. As to the standard of proof there is often the
misapprehension that since divorce is civil in nature then the

standard of proof required in such cases is proof on a balance of
probabilities. I wish to refer to a passage which I agree with
from
the case of Munthali
vs Munthali, 8 MLR 101 at 105
where it is stated :

“The Divorce Act (cap.
25:04), Section 7(2) requires the court to be …. Satisfied on the
evidence that –

1. 
   the case for the
   petitioner has been proved; and

   
   

2. 
   where [as in the
   present case] the ground for the petition is adultery, the
   petitioner has not in any manner been accessory to,
   or connived at
   or condoned the adultery….” The wording of the section is the
   same as the wording of Section 4 of the Matrimonial
   Causes Act 1950
   of England. In considering the degree of proof of adultery required
   to satisfy a court that the petitioner’s
   case had been proved,
   Hondson,
   L.J.
   said in Galler
   vs. Galler (2)((1954)1 All E.R. at 540),
   after considering the judgments of the Divisional Court in Fairman
   v Fairman (1)
   and the speeches of the House of lords in
   Preston- Jones vs. Preston-Jones (4):

   
   

“I think the courts of
this country maybe taken to have come down on the side of the view
that there was no distinction to be drawn
between the word
‘satisfied’ standing alone and the word ‘satisfied’
accompanied by the words ‘beyond reasonable doubt.’

Later in his judgment
(ibid, at 541) the learned Lord Justice said : “In divorce as in
crime, the court has to be satisfied beyond
reasonable doubt”
because, following Lord MacDermott in Preston-Jones,
quoted by the leaned Lord Justice:

“the true reason, as
it seems to me, why both [divorce and criminal jurisdiction] accept
the same general standard – proof beyond
reasonable doubt – lies
not in any analogy, but in the gravity and public importance of the
issues with which each is concerned.”

With respect, I am in
agreement with the conclusions of the learned Lord Justice.”

The
petitioner and the respondent were married at the office of the
District Commissioner in Lilongwe on the 27^th
of August 1999. In the testimony of the petitioner there is one
child of the marriage Mercy Denise Goliati born on 6^th
April 2001. Upon celebration of the marriage the couple cohabited in
Lilongwe. It would appear the marriage was destined to difficulties

because in the testimony of the petitioner she does not attempt to
speak any good about her relationship with the respondent.

Barely
two years after the marriage the petitioner and the respondent were
already spitting fire to each other. The petitioner
thought she had
no place in the house because the respondent’s relatives had free
hand to everything in the house to the extent
that she was forced to
hide some items in the bedroom which were not meant for that place
such as food stuff. It is said there
was no talking between the
petitioner and the respondent. When Mercy was born it is said the
respondent would not provide transport
to the petitioner. She had
no transport to go home from work to breastfeed the child. After
work she would have no transport
home. She called a friend, Mrs
Kampanje to support her testimony in this regard.

The
real difficulties came too dear when the respondent decided he was
not going to have sexual intercourse with the petitioner.
In the
petitioner’s testimony this went on for one whole year subjecting
her to anxiety. Because of these problems the petitioner
was forced
to leave the matrimonial home to go and live with her relatives. She
eventually came back to the home.

The
petitioner then went on to talk about the respondent’s adulterous
activities with the co-respondents. She did not have explicit

instances to talk about but referred to circumstances when the
respondent would be seen having lunch with the co-respondent and
in
other instances the suspects would be in the respondent’s motor
vehicle. She suspected the respondent used to travel out
of town
with the co-respondent for adulterous purposes. It seems to me the
real issue coming from the petitioner is that she
felt completely out
of place and alienated in the home and the anticlimax was when the
respondent decided he was not going to provide
for her and the child
and in further execution of his resolve he abstained from having sex
with the petitioner.

Coming
to listen to the respondent, as in most cases, the situation is
presented in virtually the opposite. The respondent’s
version is
that it was the petitioner who was cruel and adulterous. As to
cruelty the respondent said the petitioner created
a virtually
obscene and squalid environment in the house. It is said she left
sanitary to wells everywhere in the bedroom and
she would not flash
the toilet after use. It is alleged she deliberately urinated on the
bed and leave the impure beddings on
the bed and lock the bedroom.
In support of this testimony the respondent called the house servant
who indeed spoke like the respondent
did and went on to say he
cleaned up the spoils in the bedroom when he was able to make his way
there once in a while.

The
respondent then turned to the petitioners adultery. He presented the
petitioner as a woman who had no regard for the matrimonial
home.
She would leave at will and come late at night and in some cases
spent days away. The respondent then came to establish
that the
petitioner had a man friend she was having a love affair with, a Mr
Madinga. In the respondent’s testimony something
around December
2003 a friend of his saw the Petitioner enter a room at Lilongwe
Hotel. The friend alerted the respondent who
tried to verify from
the Hotel who was the occupant of the particular room, room 323. He
was told there was a Mr Madinga at the
material time.

As
time went by the Madinga episode surfaced again. This time through
emails between the petitioner and the Madinga man. The
emails have
been exhibited as Exhibit D1 and D2. According on email in his box
to which was attached a message from the petitioner
to Mr Madinga.
Ordinarily there would be a lot of contestation on the authenticity
and admissibility of these emails were it
not for the petitioner’s
admission that the emails were infact authored between herself and Mr
Madinga. It would seem to me
the petitioner was trying to send a
message to the respondent and in the process in adherently forwarded
the message that she had
sent to Mr Madinga. I will explain.

As
stated earlier the email, Exhibit D2 came through the respondent’s
box. The whole print out starts with the communication
from the
petitioner to Contrad Madinga dated Thursday 17^th
March 2005. The subject reads; Re:
hi sweetthing.”
The message is as follows:

“You will agree with
me after reading this mail kuti what I wanted to tell you was……..
I was reading posts at a certain women’s
forum on the web and one
lady was asked …….. ever done the “69” thing with her hubbies
or male partners and was inviting
comments …….. forum, and it
just reminded me of you!! Remember?? ha!ha!ha! I didn’t comment
………”

On
the same printout there is then the message to the respondent from
the petitioner dated Friday 18^th
March 2005. The message reads:

“how are you doing.
Wish you well you know move on.”

To
this message was attached the message entitled :

“Re:hi sweetthing.”

Infact
the whole “hisweetthing” message was also forward to the
respondent.

It
is against this back ground that I must determine this matter. From
the totality of the testimony and the evidence it is apparent
to this
court that the petitioner and the respondent were simply not meant
for each other. What has complicated the situation
even further is
that the two did not make any real attempt to make their marriage
work. The thing with a marriage however is that
it will not be
dissolved merely because the parties are incompatible. The grounds
for divorce are well spelt out in the Divorce
Act Cap 225:01.

Yes
cruelty and adultery are two possible grounds as the parties here
allege against each other. For cruelty to warrant dissolution
of a
marriage it must be shown that the conduct complained of is of such a
character as causes danger to life, limb or health
or such as gives
rise to reasonable apprehension of such danger, see Kamzingeni
v Kamzingeni, Civil Cause No 362 of 1997.
Ordinarily courts will be reluctant to grant a decree of divorce on
account of one isolated act, they will however grant it if
the act is
of sufficient gravity or where the act is gross and raises reasonable
apprehension of repetition, see Hayter
v Hayter and Another, 14 MLR 94.
It seems to me what is of real concern is the gravity of the act
complained of and its effects on the complainant.

The
acts complained of by both the petitioner and the respondent to this
court are indeed acts of aggression and that is what they
are at
most. These are acts of mere posterity of temper, rudeness of
language, want of civil attention and accommodation which
in language
of Evans
vs Evans (1790)1 Hag. Con, 38 do
not amount to legal cruelty.

I
have considered the possibility that the abstention from sexual
intercourse might have caused mental distress to a young lady
of the
petitioner’s age, but for reasons that I look at shortly I do not
think this could have been the case.

As
to allegations of adultery it has been said mere opportunity is not
proof thereof. I am captivated by the statement of Lord
Buckmaster
in Ross vs
Ross [1930]AC, 7
when he said:

“adultery is
essentially an act which can rarely be proved by direct evidence.
It is a matter of inference and circumstance. It
is easy to suggest
conditions which can leave no doubt that adultery has been committed
but the mere fact that people have been
thrown together in an
environment which lends itself to the commission of the offence is
not enough unless it can be shown by documents
e.g. letters and
diaries or antecedent conduct that the association of the parties was
so intimate and their mutual passion so
clear that adultery may
reasonably be assumed as a result of an opportunity for its
occurrence.”

The
petitioner has referred to some instances when the respondent has
been seen with some women notably the co-respondents. There
is
little to rely on from the petitioner’s stories which largely are
mere suspicion and do not even speak for opportunity.
At most they
are mere facts of people seen together far less enough to constitute
inclination and real opportunity for adultery.

Against
the petitioner’s stories is the respondent’s revelation. The
story about the petitioner being found going into a room
at Lilongwe
Hotel on its own sounds circumspect. As it turns out though the
emails between the petitioner and Mr Madinga speak
for an intimate
relationship. The “69” thing which is mentioned in the email
Exhibit D2 is explained by the petitioner herself
to refer a type of
sex act and in the words of the email that act reminded the
petitioner of Mr Madinga. Reading Exhibit D2 it
is difficult for
this court to ignore the respondent’s story about the Lilongwe
Hotel incident although as I say earlier that
story sounds porous and
pitted.

I
have earlier doubted whether the respondent’s abstention from
sexual intercourse might have caused mental strain on the petitioner.

The main reason for my doubts is that nowhere in the testimony of
the petitioner has it suggested that she suffered any kind of

distress as a result of the abstention. No attempt has been made
to explain whether the petitioner was affected in any way by
the
abstention. To the contrary the manner in which the petitioner went
on bragging about her affair with Mr Madinga to the extent
of
actually bringing it to the attention of the respondent and telling
him to go on with his life clearly shows that the petitioner
did not
miss anything from the respondent.

My
attention has been drawn to Section 6 of the Divorce Act Cap 25:04
where it is provided that :

“Where the husband is
the petitioner and the petition is presented on the ground that the
respondent has since the celebration of
the marriage committed
adultery, eh shall make the alleged adulterer a co-respondent to the
petition unless he is excused by the
court from so doing on one of
the following grounds:

1. 
   that the respondent is
   leading the life of a prostitute, and that he knows of no person
   with whom the adultery has been committed;

   
   

2. 
   that he does not know
   the name of the alleged adulterer although he has made due efforts
   to discover it;

   
   

3. 
   that the alleged
   adulterer is dead.”

   
   

This provision to me is a
procedural requirement which after all can be dispensed with in
certain circumstances. It is no doubt
intended to protect the
co-respondent in case there be implications as a result of the
proceedings and to enable the co-respondent
to decide if he or she
might wish to be heard. It is no doubt also meant to enable a
respondent a proper defence with a particular
person in mind instead
of defending oneself against accusations of adultery with the entire
world. In the instant case the person
with whom the petitioner is
said to have committed adultery is named in the cross petition.

The petitioner was
therefore put on sufficient alert as to the co-respondent though not
included as a party to the proceedings.
I am of the clear view that
this is a technicality which in the entire circumstances of this case
can be waived.

In my conclusion I am
satisfied that the respondent has established beyond a reasonable
doubt that adultery on part of the petitioner.

In the result the
petitioner has failed in all respects in her petition against the
respondent. On the other hand the respondent,
while he has failed
to establish cruelty, he has established adultery and I grant him
Decree
Nisi of
divorce on that basis.

As to custody of the only
child of the marriage, Mercy Denise Goliati, the respondent does not
wish to put up a fight and would
rather let the petitioner be granted
custody. I accordingly allow the petitioner custody the child.

Issues of maintenance of
the child and distribution of matrimonial property which have not
addressed at this hearing are referred
to the Registrar in Chambers.

The petitioner is legally
aided. I am reluctant to condemn her in costs. It is ordered that
each party bears own costs.

PRONOUNCED
in Open Court here at Lilongwe this 31^st
day of January 2006.

A.K.C. Nyirenda

J U D G E