IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

MATRIMONIAL
CIVIL CAUSE NO 10 OF 2004

BETWEEN
:

FAINESS
TANIL MAJAMANDA …………………….PETITIONER

-and-

PATRICK
M. MAJAMANDA …………………………RESPONDENT

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

Chilenga;
Counsel for the Petitioner

Theu;
Counsel for the Respondent

Chulu;
Court Interpreter

Jalasi/Namagonya;
Court Reporters

J
U D G M E N T

HON.
NYIRENDA, J.

Fainess
Majamanda, nee Fainess Cheleuka, by this petition seeks dissolution
of her marriage to Patrick Majamanda on the ground
of cruelty.
Patrick Majamanda has cross petitioned for dissolution of the
marriage on the ground of cruelty as well. The case
took a while in
court and a lot of issues were flushed out, some unnecessary and
others which could easily have been avoided without
any damage to the
case for either party. As a mater of fact this case could and will
be determined of very narrow issues with
a limited amount of
testimony.

The
petitioner and the respondent were married on 3^rd
February 2000 at the District Commissioners’ Office in Lilongwe in
that office’s capacity as Registrar of marriages. Subsequent
to
their marriage the couple cohabited at various locations in Lilongwe
city. There are two children Clement Majamanda and Dalitso

Majamanda.

The
petitioner and the respondent are domiciled Malawian nationals and
are resident and domiciled in Malawi. This court therefore
has
jurisdiction to hear and determine the petition. I have also
considered whether these proceedings are brought upon the parties

colluding to do so. I am very clear in my mind that there is no
collusion between them.

I
should then briefly remind myself about the nature of these
proceedings. Divorce proceedings are civil in nature. It is
now
settled however that because a marriage is not an ordinary contract
it requires extra caution to dissolve it. In saying this
I am
referring to the burden and standard of proof. The burden of proof
is obviously on the party that alleges to an issue and
the facts
there to. Although a divorce petition is civil, the standard of
proof is not merely on a balance of probabilities and
for good
reason. In Munthali
vs Munthali 8 MLR 101 at 105
Mead, J. explains:

“The Divorce Act (Cap 25:04)
Section 7(2) requires the court to be satisfied on the evidence that
–

(a) the case for the petitioner has
been proved ………

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 required to satisfy
that a court that the petitioner’s case has been proved, Hodson,
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
vs Fairman (1)
and the speeches of the House of Lords in Preston
Jones vs Preston Jones (4)-
‘I think the courts of this country may be taken to have come down
to the side of the view that there was no distinction to
be drawn
between the words ‘satisfied’ standing alone and the word
‘satisfied’ accompanied by the words ‘beyond reasonable
doubt.’
In divorce as in crime, the court has to be satisfied beyond
reasonable doubt because following Lord Mac Dermott in
Preston
Jones, quoted by the
learned 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.”

The
case for the petitioner is that the respondent is a very aggressive
and brutal man to say the least. In her testimony she
states that
their problems started even before they got married but she was
persuaded in getting married hoping the situation was
going to change
for the better. That did not happen. Instead the situation got
worse.

The
petitioner has specifically referred to a number of occasions when
the respondent heavily assaulted her. It will not be necessary
for
me to recount most of the occasions. The dirtiest period was in the
year 2001. It is said the respondent suspected that
the petitioner
was going out with other men. As a result of those suspicious the
petitioner was a victim of sudden outbursts
and assaults. The
petitioner was hospitalized twice. Some of the incidents were
reported to police which resulted in the respondent
being arrested
and detained.

Another
bad incident happened in June 2004. It started from what was a
beautiful romantic evening. The petitioner and the respondent
had
gone out to have fun and merry make at night clubs in the city of
Lilongwe. It was a beautiful evening which soon turned sour
to ugly
the two suspected each other of infidelity with other patrons of the
night clubs. As usual the quarrels resulted into
heavy fighting
where the petitioner says she was heavily assaulted. She was forced
to leave the matrimonial home. After that
incident the animosity
between the petitioner and the respondent became even worse and it
was apparent that the home had come to
grind. Every time the two
met it was war of words, scorn and ridicule. The continued to drift
apart until the petitioner decided
to file the present petition.

In
court the petitioner exposed scars on her from the assaults by the
respondent.

The
petitioner called Mr Nyali who is married to her aunt. Apparently Mr
Nyali was often called to the house of the petitioner
when the
situation was not good. Mr Nyali confirmed some of the events
between the petitioner and the respondent with some material

particular. Some of the events happened at his own house because at
one point the petitioner left her house and went to stay with
the
Nyalis.

The
respondent is said to have gone to Mr Nyali’s house and caused a
scene because of a vehicle which the petitioner was keeping
at that
house.

The
respondent did not spare the petitioner either. He described her as
a jealous and extremely emotional woman. She is said
to be a
physically strong lady who overpowered the respondent when fights
erupted. Time and again she would go for the respondent’s

genitals, causing him injury and much pain.

The
respondent exhibited a torn shirt in court which was torn during one
of the fights. The respondent has also referred to an
incident when
the petitioner smashed their motor vehicle rear windscreen because
the respondent had given lift to a lady. It is
also said the
respondent went to a certain lady, Mrs Mwanza, whom she thought was
having an affair with the respondent and attacked
her. All this was
to impress upon the court that the petitioner is a renegade capable
of total aggression.

Both
Counsel before me have assisted with wealth that are relevant in the
instant case, in particular those that relate to what
amounts to
cruelty for purposes of divorce. I am most grateful and would
considered all of them if time allowed.

In
Livingstone
Stallard vs Livingstone Stallard [1974]2 All E.R. 766
Dunn J. thought in determining cruelty the question should be:

“Would
any right thinking person come to the conclusion that this husband
has behaved in such a way that the wife cannot reasonably
be expected
to live with him taking into account the whole of the circumstances
and the characters and personalities of the parties.”

In
discussing cruelty in Kamlangila
vs Kamlangila [1966-68] MLR 301
it was said :

“ ‘Legal cruelty’
may be defined as conduct of such a character as to have caused
danger to life, limb, or health (bodily or mental),
or as to give
rise to a reasonable apprehension of such danger. Where conduct over
a period of years is relied on as constituting
cruelty, it is very
difficult to prove to the satisfaction of the Court that there was
reasonable apprehension of danger to health
where actual injury is
not proved. The fact that a marriage has broken down is no reason in
itself for a finding of cruelty.
Desertion, even when simple, can
in itself be cruelty; likewise it could constitute an ingredient in a
charge of cruelty…….
Wilful neglect to maintain may constitute
cruelty or an act of cruelty.”

This
passage was extracted from Rayden on Divorce 9^th
Ed at 123 (1964). In Russell
vs Russell (5) (1897)A.C. 395
the House of Lords said, following Lord Stowell’s proposition in
Evans
vs Evans (1790)1 Hag. Con.35,
as a general principle that before the court can find a husband
guilty of legal cruelty towards his wife, it is necessary to show

that he has either inflicted bodily injury upon her or has so
conducted himself towards her as to render future cohabitation more

or less dangerous to life, limb or mental or bodily health. The
causes must be grave and weighty and such as to an absolute
impossibility
that the duties of married life can be discharged. It
is to be noted also that where a husband charges his wife with
cruelty,
the relative physical strength of a man and woman has to be
taken into consideration.

The
testimonies before me from both the petitioner and the respondent
speak for an extremely dangerous association which in my clearest

assessment is a time bomb bound to explode soonest and when it does,
in the light of the events that have happened, so far, the

consequences would certainly be dire and severe on either of the
couple. Each of the incidents complained of by either the petitioner

or the respondent are sufficiently grave and weighty. I have had the
opportunity to observe both the petitioner and the respondent
as they
testified in court. Each one of them spoke with conviction and
determination. I thought I also noticed an element of
anger and
ridicule towards each other. In all I am satisfied that both the
petitioner and the respondent have established cruelty
on part of the
other. It is further more than established in my judgment that this
marriage can not be sustained. I therefore
grant both the petitioner
and the respondent Decree Nisi of divorce.

There
are a few issues that I should now talk about. The first one is in
relation to the property. The respondent seemed to
seek an account
of property said to have been acquired by the couple so that it can
be distributed. Towards the end of the matter
it did not seem to me
that this matter was really being pursued except to the extent of a
motor vehicle which had been taken by
the petitioner and has since
been returned to the respondent, I therefore make no order in this
respect.

Next
is the question of custody of the two children. The respondent does
not wish to contest this issue largely because the children
are still
young and need motherly care. I therefore make an order for custody
of the two children in favour of the petitioner
with the right to
visitation by the respondent.

Then
there is the question of maintenance. Again this has not presented
me with any difficulties on the information that is before
me. The
order of maintenance I should make is with regard to the children.
It is ordered that the respondent shall provide
maintenance for the
two children.

Finally
the question of costs of the action. In the manner this case has
turned out, it is only appropriate that I order that
each party pays
own costs.

PRONOUNCED
in Open Court at the High Court, Lilongwe, this 23^rd
day of February 2006.

A.K.C.
Nyirenda

J
U D G E