IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

MATRIMONIAL
CAUSE NO 12 OF 2005

BETWEEN
:

JONANTES
TERTIUS LOUBSER ……………..APPLICANT

-and-

JOCELYNE
CHIMWEMWE LOUBSER …RESPONDENT

CORAM : HONOURABLE
JUSTICE A.K.C. NYIRENDA

Mwale;
Counsel for the Applicant

Theu;
Counsel for the Respondent

O
R D E R

HON.
NYIRENDA, J.

By
Originating Summons the applicant seeks leave of this court to
petition for dissolution of his marriage to the respondent
notwithstanding
that three years have not passed since the date of
the marriage. Under the Divorce Act Cap 25:04, Section 8(1)
provides that
no petition for divorce shall be presented to the court
unless at the date of the presentation of the petition three years
have
passed since the date of the marriage. This section however
carries a proviso which states that a judge of the court may, upon

application being made to him, allow a petition to be presented
before three years have passed on the ground that the case is one
of
exceptional hardship suffered by the petitioner or of exceptional
depravity on the part of the respondent. The court should
also
address its mind to the question whether there is reasonable
probability of a reconciliation between the parties before the

expiration of the three years, in which case the court might want to
give reconciliation a chance and decline the application although

there might be glaring instances of hardship and depravity.

By
his affidavit in support of the application the applicant tells the
court that the respondent is an adulterous and cruel woman.
With
regard to cruelty the applicant cites incidents of physical attack by
the respondent some of which resulted in injuries
to him and breaking
of property. As regards adultery it is said the applicant found the
respondent in the act of sexual intercourse
with the applicant’s
own friend. From the applicant the story behind the adultery is
that they went to the lake with friends
and while there there was
drinking. The applicant retired to bed early leaving the respondent
and his friend carry on into the
night. In the early hours of the
following day the applicant realized the respondent was not in bed.
As he woke up to check,
he found the respondent having sex with his
friend on the veranda. It is said the respondent was completely
naked while his friend
had only his shirt on. It does not say in
the affidavit what the applicant’s reaction was to that incident
but he has brought
to court letters from his treacherous friend
asking for forgiveness.

The
respondent denies the allegations and in turn presents the applicant
as an aggressive and brutal man who beat her up even in
the presence
of her mother. I shouldn’t dwell much on the respondent’s
account because she is not seeking dissolution of
the marriage
herself. To the contrary she asserts that the couple has continued
with a normal cohabitation to this moment.

In
talking about premature petitions, that is petitions before three
years of marriage, I have been referred by both parties
to the case
of Bowman
v Bowman (1949)2 ALL E.R. 127
where Denning L.J. said:

“The only cases in
which the question arises are, of course, those of adultery or
cruelty. If there is nothing more than adultery
with one person
within the first three years of marriage that may be considered
ordinary depravity. There is, I am sorry to say,
nothing
exceptional about that situation, and it does not involve exceptional
hardship on the innocent spouse, the applicant.
The distress that
it causes in one which many have to endure. If, however, the
adultery is coupled with other matrimonial offences,
for example, or
if he is cruel to her, thus causing her not only distress by his
adultery but also injury by his violence, then,
even if his offence
cannot be stigmatized as exceptional depravity on his part,
nevertheless, it does involved exceptional hardship
suffered by the
wife. Even if the adultery is not coupled with another matrimonial
offence, nevertheless its consequences may
involve exceptional
hardship to the applicant, as, for instance, when a wife as a result
of her adultery has a child by another
man so that the husband, if he
took her back, would have to maintain another man’s child, or it
may be committed in such aggravating
circumstances as to show
exceptional depravity. The husband who commits adultery
promiscuously with more than one woman or with
his wife’s sister,
or a servant in the house, may probably be labeled as exceptionally
depraved. Such, at least, are instances
in which, when sitting in
chambers, I have given leave to a spouse to present a petition for
divorce within three years of marriage”

This
case was cited with approval by Mkandawire, J. in Rao
v Rao
and
another, [1991]14 MLR 419.

Marriage
is a sacred engagement of public importance. It is not an ordinary
contract which people engage casually and hope to
opt out at will
when it pleases them. Even after three years a marriage will not be
dissolved on acts of mere posterity of temper,
rudeness of language,
want of civil attention and accommodation. Before three years
therefore a court must be satisfied that insisting
on sustaining the
marriage would result in grave psychological or physical harm to the
petitioner and that the situation is such
that the problem in
insoluble and reconciliation virtually impossible.

I
have closely examined the affidavits of the applicant and the
respondent in the instant case. What I see is out bursts, most
of
which are as a result of drinking splurges. Even the alleged
incident of adultery, seems to have been influenced by a drinking

fling. The man with whom the respondent is said to have committed
adultery, the applicant’s own friend, has since been writing
the
applicant seeking to be forgiven because the whole episode was
influenced by a drunken mind.

In
my final judgment I do not find sufficient basis upon which to allow
leave to petition for divorce before three years of the
marriage.
The application is therefore dismissed with costs to the respondent.

MADE
in Chambers at Lilongwe this 14^th
day of February 2006.

A.K.C.
Nyirenda

J
U D G E