IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

MATRIMONIAL
CAUSE NO 10 OF 2005

BETWEEN
:

JACK
REBELLO ………………………………PETITIONER

And

JOSEPHINE
REBELLO …………………….RESPONDENT

CORAM : HON.
JUSTICE NYIRENDA

Mr
Chinula; Counsel for the Petitioner

Mr
Kalua; Counsel for the Respondent

Mr
S. Baziliyo; Court Interpreter

I.S.
Namagonya
;
Court Reporter.

J
U D G M E N T

HON.
NYIRNDA, J.

Jack
Rabello, by this Petition seeks the dissolution of his marriage to
Josephine Rebello on the ground of adultery. In turn the
respondent
has cross petitioned for dissolution of the marriage on grounds of
the petitioner’s adultery and cruelty. At the
moment of trial the
petitioner informed the court that in the light of what was contained
in the cross petition he was no longer
pursuing the petition but
that the matter could proceed, if the respondent so desired, on the
cross petition.

At
this point I was immediately put on guard against the danger of these
proceedings being brought in collusion. For that reason
I have
carefully searched through the documents filed and listened to the
testimony in evidence of the one and only witness in
the case. I am
more than satisfied that there are no traces of collusion. This
finding enables me to proceed on to the next consideration
that is
whether this court has jurisdiction to hear and determine this case.
Fortunately, for me both the petitioner and the
respondent are
domiciled in Malawi and have lived in Malawi since the celebration of
their marriage. The marriage itself, as I
shall soon turn to, was
celebrated in Malawi. I can therefore proceed to deal with this
matter on its merits.

Josephine
and Jack were married at the District Commissioners Office in
Lilongwe in that Office’s capacity as Registrar of Marriages.
This
was on the 31^st
of January 1992. A marriage certificate has been exhibited as
evidence thereof. The petitioner and the respondent lived and

cohabited in the City of Lilongwe where a child was born between them
on the 9^th
June 1992 and was named Dylan Rebello.

In
her testimony in court the respondent spoke of a union that started
beautifully until sometime in 2004 when she started having
problems
with the petitioner. She did not know why the petitioner was giving
her problem until she soon discovered that he was
having an affair
with another woman. She says she decided to confront the petitioner
on the matter but could not get the problem
resolved. She eventually
called in the petitioner’s brother to mediate. That did not help
either. To the contrary the petitioner
made it clear to the
respondent that he was not interested in her and was infact in the
process of seeking divorce but that his
lawyer had told him he did
not have any legal basis as yet.

In
the course of time the petitioner told the respondent that they
should both move out of the house in Area 49 where they were
staying
and each one would go their way. The house in Area 49 which belongs
to both of them was to be rented out and the rent
would be shared
between them. That actually happened in April 2005. The
petitioner went to live in Area 47 and the respondent
went to live in
Area 11 within the City of Lilongwe. The respondent lives with
another woman Tina Mlozi. It is on account of
the petitioner living
with Tina Mlozi that the respondent’s case for adultery is
premised.

As
for cruelty the respondent has talked about an incident that happened
at Alexander, a popular drinking joint within the City
of Lilongwe.
On a certain day in August 2005 the respondent and some friend went
to Alexander to celebrate one of the friend’s
birthday. They
found the petitioner at Alexander. It is said when he saw her he
walked out of place but soon came back. When
he came back he went
straight for the respondent and grabbed her by the neck. He dragged
her and hit her head against a glass
door, shattering the door and
severely injuring the respondent in the process. The respondent was
hospitalized for three days.
When she came out of hospital she
communicated with the petitioner for a short while. She stopped
talking to the petitioner because
he sent her a message that she
should stop talking to him. They have since stopped talking to each
other.

As
a result of the incident at Alexander the matter went to police who
eventually prosecuted the petitioner in Criminal Case No
141 of 2005
on a charge of assault occasioning actual bodily harm contrary to
section 254 of the Penal Code. At the close of
the proceedings the
petitioner was discharged under section 337 (b) of the Criminal
Procedure and Evidence Code on the condition
that he does not commit
any other offence of a similar nature in twelve months from the date
of the Order. A discharge under section
337(b) is made after an
accused has been convicted of an offence but that the court thinks
the accused should not be given any
penalty on conditions set by the
court. In the instant case the condition was that the accused should
not commit an offence of
a similar nature in twelve months.

The
Cross Petition is virtually undefended. There was a brief attempt
to cross examine the respondent on the actual out come
of the
criminal case. What is true is that the charge of assault
occasioning actual bodily harm was established against the
petitioner.
From what the respondent has told this court it is also
more clear that she suffered a heavy and brutal assault at the hand
of
the petitioner. What I do not understand myself is why the
petitioner did this diabolical act at a time when he had already
rejected
and discharged the respondent. He was already himself
living with another woman having blatantly told the respondent that
he didn’t
want her in his life. As a matter of fact the
petitioner, I must say, should consider himself lucky to have gone
away without
a custodial sentence in the criminal case.

The
evidence in this case speaks more than clear that the petitioner is
having an adulterous association with one Tina Mlozi.
They are
actually living together. The question of adultery is therefore not
from circumstantial evidence. It is to me from direct
evidence. As
to cruelty, again the facts speak for themselves. I need not
belabour myself with case authorities on this point.
In all there
need not be splitting of hairs on the question of the petitioners
adultery and cruelty. I find that these matters
are more than
established. I therefore grant the respondent decree nisi of divorce
on the grounds of adultery and cruelty.

The respondent
tells the court that the child stayed with her for a while until she
had problems with her motor vehicle. The child
then moved to stay
with the petitioner where he still is. I did not get the impression
that there is much controversy with regard
to the custody of the
child. I grant the respondent and the petitioner joint custody of
the child. In the interest of the child
and so that there is no
doubt regarding maintenance, I order that the petitioner shall
maintain the child Dylan Rebello.

The
question of the respondent’s maintenance has not been dealt with by
her testimony. The respondent is working and no doubt
trying to
send for herself. Maybe for that reason she does not insist on her
own maintenance. I therefore make no order for
the maintenance of
the respondent.

What
is evident in the respondent’s testimony is that there is joint
ownership of the house in Area 49. Both the respondent
and the
petition have made contribution towards the purchase of the house.
The indication I get is that the petitioner contributed
more. In a
marriage situation however it is not exactly how much a spouse
contributed to matrimonial property. A court will consider
what
would be equitable in the circumstances of the case. It is ordered
in this respect that the house in Area 49 be sold and
the proceeds of
the sale be shared in equal amounts between the respondent and the
petitioner. With regard to the remaining
matrimonial property I
order that such be established before the Assistant Registrar and
distributed as he deems appropriate.

The
petitioner shall bear costs of these proceedings.

MADE
in Open Court at Lilongwe this 24^th
day of May, 2006.

A.K.C.
Nyirenda

J
U D G E