WENDY PATRICA PARTRIDGE V JOSEPH TITUS PARTRIDGE (1985) Z.R. 223 (H.C.) HIGH COURT

CASES ON NULLITY

WENDY PATRICA PARTRIDGE v JOSEPH TITUS PARTRIDGE (1985) Z.R. 223 (H.C.) HIGH COURT

(E.L.SAKALA, J.)

3RD DECEMBER, 1985

(CASE NO.1985/HP/D48)

Flynote

Family Law - Marriage - Non-consummation of marriage of convenience- Effect of.

Headnote

For the purpose of obtaining residential status in Zimbabwe the petitioner contracted a marriage of convenience with a Zimbabwean citizen. The parties did not consummate the marriage and had no intention of doing so. Upon her return to Zambia, the petitioner applied to the High Court for a decree of nullity, basing her petition on the fact that the marriage had not been consummated.

To constitute a basis for decree of nullity, failure to consummate a marriage must be due to wilful refusal by one of the parties, or it must be due to an incapacity which was not known to the other party at the time of the marriage.

Cases cited:

(1) Kumra v Kumra (1958) Times, April 30.

(2) Sheldon v Sheldon ( 1964) Times, July 8.

(3) Silver v Silver [1955] 2 All E.R .614.

(4) Morgan v Morgan [1959] p.92. For the petitioner: R. M. A. Chongwe, SC, of Chongwe and Co.

For the Respondent: Undefended.

Judgment

E.L.SAKALA, J.:

This is an undefended divorce petition by the petitioner's wife for a decree of nullity on the ground that the marriage has never been consummated. The parties were married on 17th June, 1983, at the Registry of marriage at Bulawayo in Zimbabwe. The petitioner has pleaded that since then they have never cohabited together. She has continuously for a period of 12 months immediately preceding the presentation of the petition resided at 1 Eucalyptus Avenue, Chelston at Lusaka while the respondent is domiciled in Zimbabwe. There are no children of the family living.

The petitioner in her oral evidence told the court that after the ceremony on 17th June, 1983, she did not live together with the respondent. She explained that the marriage has never been consummated because it was purely a marriage of convenience to enable her obtain residential status In Zimbabwe because the respondent was a Zimbabwean citizen and through marriage with him she had no problems. She explained that before the ceremony of marriage she made attempts to secure residential status in Zimbabwe by applying through the normal procedure but she was rejected. But after the ceremony of marriage she was allowed to stay in Zimbabwe. She further told the court that she left Zimbabwe at the beginning of December, 1983. She explained that originally she had left Zambia because she was having problems and it is for this reason that she had gone through a marriage of convenience. She stated that previously she was with a boy friend who she resided with for 30 years. She returned to Zambia because this boy friend called her back. The petitioner also testified that since she left Zimbabwe, the only communication she had from the respondent is a form of a letter stating that he would like to marry and requested her for a divorce. She stated that this is why she has brought these proceedings so that she can be free. The petitioner also told the court that she was herself living with a boy friend.

In answer to questions by court as to what she understood of the ceremony, she explained that the whole thing was quite funny. She was picked up. They went to the Central Registry with two witnesses and got married. She said that her understanding was that neither of them would hold anything against each other. She said she appreciated right from the start that there was going to be no consummation of the marriage.

At the close of the petitioner's case, Mr. Chongwe made brief submissions in which he cited a number of cases. I will be referring to these cases later in this judgment.

It must also be mentioned that the non-consummation of the marriage in the original petition was based on the refusal on the part of the respondent to consummate the same. Before Mr. Chongwe closed his case, the court queried whether the particulars by alleging wilful refusal did not raise a contradiction in the evidence adduced by the petitioner. The query influenced counsel to amend the particulars in the petition by deleting the words alleging that non-consummation of the marriage was based on wilful refusal by the respondent.

I have very carefully considered the petition and the oral evidence by the petitioner in court. I am greatly indebted to counsel for the authorities cited. The fact that the parties went through a ceremony of marriage is common cause. It is also common cause that this marriage has not been consummated. There is no allegation of wilful refusal of either spouse to consummate the marriage. There is no evidence that attempts were made to consummate the marriage. As a matter of fact the evidence is that the parties never cohabited together after going through the ceremony of marriage. The reason for the non-consummation as pleaded and testified to by the petitioner is that this was a marriage of convenience to enable her to obtain Zimbabwean residential status which she had failed to obtain through the normal channel. She obtained this status through this marriage of convenience and now asks this court to declare this marriage null and void. In other words she wants this court to pronounce that although she obtained the Zimbabwean status through that ceremony of marriage the marriage was non-existent as it was only for convenience to obtain the status.

At this juncture it is convenient to look at some of the cases where the question of the nullity of marriage on the basis of non-consummation of marriage has been decided. I must observe that the record of the case of Kumra v Kumra (1) cited to me by counsel was not available. In Sheldon v Sheldon (2), a case referred to by Mr. Chongwe, was a marriage in name only. The wife was an Italian by nationality. She worked in a factory although she had a permit to work as a nurse. Fearing that she would be sent back to Italy if this was discovered by the Immigration Authorities, she went through a ceremony of marriage with the husband. A month after the ceremony the husband was sentenced to a long term of imprisonment which he was still serving. Although the parties met after the ceremony there was no attempt at consummation and no sexual affection. The wife petitioned for nullity on ground of incapacity of her husband to consummate the marriage, in the alternative, prayed for decree on the ground of her own incapacity. Karminski J., in dismissing the petition said:

"The burden of satisfying the Court that either the husband or wife was incapable of consummating the marriage was wholly on the wife. She had failed to discharge this burden. It was clear that the question of capacity had never been put to the test. The marriage might well have been consummated had the parties come together as husband and wife. Counsel for the wife had urged that if the court found incapacity on the wife's part, it was desirable on grounds of public policy to dissolve marriage which has never existed. Against that it could be said that public policy demanded that the course after wards should not be made too easy for those who went through a ceremony of marriage in order to defeat the immigration laws. The petition would be dismissed."

In the case of Silver (Orse Krraf) v Silver (3) the parties went through a ceremony of marriage but did not cohabit with each other. The petitioner and respondent agreed to go through the said ceremony only for the purpose of representing themselves as married to the United Kingdom Immigration Authorities and without any intention of living together as husband and wife. The petitioner prayed (i) that the purported marriage be declared null and void, alternatively (ii) that the court would exercise its discretion in her favour and decree that the marriage be dissolved. On the question of nullity, Collingwood J. at page 614 had this to say. "...the parties here intended that they should become man and wife and went through the ceremony with that object, and that there being no element of duress the prayer for a decree of nullity must be rejected." In that case the prayer for dissolution was granted but on different grounds. Morgan v Morgan (4) was an undefended petition for nullity where the parties went through a ceremony of marriage in pursuance of an agreement that they should live together on the basis of companionship only. They never lived together. The husband afterwards obtained medical advice that at the time of the ceremony of marriage he was impotent. He filed a petition on the ground of his own incapacity. The court held:

"The husband's incapacity was not a factor in the marriage at all, and it would be contrary to justice and public policy to permit him to plead his own impotence, having regard to the companionship agreement; the petition should be dismissed."

From the foregoing authorities it is quite clear that non consummation must be based on certain grounds; common of these are wilful refusal not by the petitioner but by the respondent; incapacity not that known by the petitioner at the time of marriage. In the instant case the petitioner has told me that the marriage was not consummated. No good reason has been advanced apart from convenience on her part to obtain Zimbabwean residential status. It will be against justice, public policy and morality to permit a petitioner to plead her own failure to consummate the marriage as a basis for a decree of nullity when she was well aware that the marriage by their arrangement was not to be consummated. The capacity to consummate the marriage was not put to test. I hold that the marriage was valid notwithstanding the motives of the parties. The petition's remedy in my view rests on divorce for "two years separation" since the respondent consents.

But since there is no alternative prayer based on that ground I order that the petition be dismissed. I make no order as to costs.

Petition dismissed HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)

HIGH COURT

MUZYAMBA, W.M. , J.

14TH JULY, 1992.

1992/HP/D/28

Flynote

Nullification of marriage - Prohibited degrees of consanguinity - Where parties to the marriage are blood cousins - As a basis for nullification

Nullification of marriage - Non consumation of the marriage - As a basis for nullification

Headnote

The parties secretly went through a ceremony of marriage at the office of the Registrar of Marriages, Lusaka. After marriage they discovered that they were blood cousins. As a result they never cohabited and the marriage was never consummated. They filed an undefended petition for nullification of the marriage.

(i) Where marriage takes place within the prohibited degrees of consanguinity, it is immaterial whether or not the marriage was consummated. It is nevertheless void ab initio

(ii) The parties are blood cousins and therefore fall within the prohibited degrees of relationship and should not have contracts the marriage.

For the Petitioner: M. Sikatana, Veritas Chambers

For the Respondent: Nil Judgment

This is an undefended petition for nullification of marriage between the parties

The evidence in support of the petition is that on 12th October 1990, the parties secretly went through a ceremony of marriage at the office of the Registrar of Marriages, Lusaka. After marriage they discovered that they were blood cousins.

As a result they never cohabited and the marriage was never consummated.

Paragraph 8 of the petition reads:

"8. Such non-consumation is due to the fact that immediately after the said ceremony both the Petitioner and the Respondent discovered that their biological relationship forbade them from ever getting married as they are under the Marriage Act 1949 of England which is applicable to Zambia under Section 32 of the Laws of Zambia, both the Petitioner and the Respondent are within the prohibited degree of consanguinity."

It would appear from this paragraph that the ground relied upon for nullification of the marriage is non-consummation of the marriage due to the fact that the parties are related by blood.

Sections 11 subsection (1) (a) (i) and 12 sub-sections (a) and (b) of the Matrimonial Causes Act, 1973, provide:-

"11.1 A marriage celebrated after 31st July, 1971 shall be void on the following grounds only that is to say:

(a) that it is not a valid marriage under the provisions of the Marriages Acts 1949 to 1970 that is to say where : (i) the parties are within the prohibited degrees of relationship.

12. a marriage celebrated after 31st July, 1971 shall be voidable on the following grounds only, that is to say -

(a) that the marriage has not been consummated owing to the capacity of either party to consummate it;

(b) that the marriage has not been consumated owing to the willful refusal of the respondent to consummate it."

It is quite clear from the above sections that marriage within the prohibited degrees of relationship and non-consummation of marriage are two distinct grounds for nullification of marriage. Marriage within the prohibited degrees of relationship renders the marriage void ab intio while non- consummation renders the marriage voidable, It would therefore appear to me that where marriage takes place within the prohibited degrees of relationship, it is immaterial whether or not the marriage was consummated. It is nevertheless void ab initio and there is no need therefore, as in the instance case, to plead non-consummation as well.

Turning to evidence, the Court is satisfied that the parties are blood cousins and therefore fall within the prohibited degrees of relationship and should not have contract the marriage. In that event the marriage is declared null and void ab initio.

For the purposes of making the decree of nullity absolute the Court makes a declaration under section 41 subsections (1)(a) of the said Matrimonial Causes Act, that it is satisfied that there are no children of the family to whom this section applies.

There will be no order for costs.

Petition successful, Marriage nullified.

THE PEOPLE v PAUL NKHOMA (1978) Z.R. 4 (H.C.) HIGH COURT

M.S.NGULUBE - HIGH COURT COMMISSIONER

13TH FEBRUARY,1978

HP/118/1977

Flynote

Criminal law and procedure - Bigamy - Marriage under customary law - Whether subsequent marriage under Marriage Act bigamous.

Criminal law and procedure - Bigamy - Defence of mistake of fact - Whether available.

Customary law - Bigamy - Marriage under customary law - Whether subsequent marriage under the Marriage

Act bigamous.

Headnote

The accused, who was charged with bigamy, had gone through a ceremony of marriage under the Marriage Act when his first wife, whom he had married under customary law, was still living. In his defence he submitted that he had terminated his first customary marriage by a letter and he believed that the marriage had ended. The first marriage had not been validly dissolved.

(i) Bigamy is committed if a person whose spouse is still living goes through a ceremony of marriage with another which, but for the earlier subsisting marriage, would have resulted in a valid marriage.

(ii) A customary marriage is a valid marriage for the purposes of considering a second "Marriage Act" marriage as bigamous.

(iii) (Per curiam) Mistake of fact is a defence to bigamy if, at the time of the second marriage, the offending spouse reasonably believed that his earlier marriage had been dissolved. [Editor's Note. The court's attention was apparently not drawn to The People v Katongo (1974) Z.R. 290, in which Care, J., held that a customary union is not capable of being an "earlier subsisting marriage" which renders a subsequent "Marriage Act" marriage bigamous.]

Cases cited:

(1) People v Frank Chitambala (1969) Z.R.142.

(2) R. v Gould [1968] 1 All E.R. 849.

Legislation referred to:

Penal Code, Cap. 146, s. 166.

Marriage Act, Cap. 211, s. 38.

For the accused: C.K. Banda.

For the State: Miss G.Moruthane.

Judgment

NGULUBE, COMMISSIONER:

The accused is charged with bigamy, contrary to s. 166 of the Penal Code. Particulars allege that between 22nd March and 13th April, 1976, he went through a ceremony of marriage to Juliet Kamanga when his first wife Dorothy Mulenga was still living.

It is interesting to note that s. 38 of the Marriage Act, Cap. 211, also has a similar offence to bigamy.

The onus is always on the prosecution to establish the case beyond all reasonable doubt. There is no burden on the accused to establish his innocence and if upon consideration of the whole of the evidence adduced I am left with a reasonable doubt, the accused is entitled to an acquittal. Under s. 166 of the Penal Code, the offence of bigamy is committed if a person whose spouse is still living goes through a ceremony of marriage with another which, but for the earlier subsisting marriage, would have resulted in a valid marriage. If the earlier marriage has been declared void by a competent court or if the earlier spouse has not been heard of as being still alive for continuous period of at least seven years before the second marriage, these factors constitute a defence. It goes without saying also that if the earlier marriage has been validly dissolved before the second marriage, the offence cannot be committed. Mistake of fact is also a defence if at the time of the second marriage, the offending spouse reasonably believed that his earlier marriage had been validly dissolved. This defence was recognised and considered by Forster, A.J., in the case of the People v Frank Chitambala (1) Forster, A.J., had followed the principle which was established by the case of R. v Gould (2).

The offence of bigamy is one example of certain laws which are some times totally strange once transported from England to Zambia and once they are applied to indigenous Zambians. In England polygamy is a totally unacceptable state of affairs. There, the only marriage their law recognises is a contract for the voluntary union of one man and one woman to the exclusion of all others, until that union is terminated by death, or is dissolved or annulled by statute or by decree of a competent tribunal. It is therefore an offence to have a plurality of wives.

The English law on bigamy was brought to this country with the obvious intention that it should regulate the marital affairs of the white immigrants. It was for this reason that up until 1963, this law did not apply to indigenous Zambians who were not at liberty to marry under the Marriage Act. This law did not apply to the indigenous Zambian for the simple reason that polygamy was a well established institution which was governed by the various customs or customary laws of the parties concerned. To this day, a plurality of wives is still lawful provided that the person concerned steers well clear of the Marriage Act and those Christian Churches which recognise monogamy and monogamy only.

From 1963, the law was amended to allow those indigenous Zambians who so wished to contract a one man and one woman type of marriage. In terms of s. 166 of the Penal Code, bigamy is committed whenever the second marriage is void by reason of a subsisting first marriage. In the premises bigamy can be committed where a marriage under the Act takes place when another marriage under the Act is subsisting, as in the Chitambala case, or where a marriage under the Act takes place where a customary first marriage is still subsisting. The latter position is so because the marriage under the Act will be void since there would result two wives, which that law does not accept. It had exercised my mind whether it could be argued that since the English law does not recognise polygamy, a potentially polygamous customary first marriage could therefore not be recognised as a valid subsisting marriage for the purpose of the law relating to the offence of bigamy. This view may very well fit in with s. 38 of the Marriage Act which inapt or may not have been intended to draw a distinction between bigamy as would be committed by an English man in England and an attempt by anyone in Zambia, especially the white immigrant, to avail himself of the advantages offered by customary law. It is for this reason that I had stated at the beginning of this judgment that it is interesting to compare the two sections, that is s. 166 of the Penal Code and s. 38 of the Marriage Act. In my view, a customary marriage is equally a valid marriage for purposes of considering second "Marriage Act" marriage as bigamous.

This much being premised, I now turn to consider the case in hand.

The facts of this case are not really in dispute and for this reason, I do not propose to recite each witness's evidence separately. The evidence is on record and indeed I could even simply consider what the accused himself told this court.

There is no dispute that the accused had lawfully married Dorothy in 1971 under the customary law. That marriage was consummated. Two children were born before the separation and one child since then. On 14th February, 1976, the accused and his wife Dorothy had a difference where she refused to go to his village to look after his mother. Both parties declared that if the other insisted on their respective demand and refusal, that was the end of the marriage. Dorothy duly packed her belongings and went to Mufulira to live with her mother. In the meantime the accused went through a ceremony of marriage under the Act to Juliet Kamanga. The second marriage was an unhappy fiasco which lasted only two months during which time Juliet found out about the first marriage and reported the matter to the police.

On 30th June, 1976 a few days after Juliet had left the accused, the accused appeared before the local court at Mufulira where Dorothy had summoned him for divorce. The local court refused to grant a divorce and thereafter the accused resumed living with Dorothy, his first wife.

Clearly the offence of bigamy was committed unless the accused can avail himself of one of the defences I have already referred to. In this cases the defence advanced were that the marriage to Dorothy had been validly dissolved by mutual agreement on 13th February, 1976, or alternatively that the accused was labouring under an honest mistake of fact upon a reasonable belief that at the time of the second marriage to Juliet, he had already divorced Dorothy. According to Dorothy's mother, her daughter and the accused were married under Bemba customs. A certificate of that customary marriage had been obtained from the local court. According to her as well as to Dorothy, the marriage could only be dissolved by the traditional refund of the marriage fees which had been paid and by going to the local court with whom the marriage was registered. The local court in fact refused to grant divorce and the parties resumed cohabitation. I have no hesitation in accepting the evidence that the marriage to Dorothy was never validly dissolved. It could not be dissolved verbally by mutual agreement. That bond of marriage was tied by customary law and that same law must untie the bond. There was no valid oral divorce and that part of the defence falls away. It now remains to consider whether the accused laboured under a mistake of fact upon a reasonable belief that he had divorced Dorothy.

In his evidence in chief, the accused told the court that when he chased away Dorothy on 14th February, 1976, he told her that their marriage was ended and that he would write a letter to that effect to her mother. Thereafter, he was waiting patiently to hear from Mufulira confirmation that the marriage was accepted as having ended. Apparently, no confirmation came and on that basis, he believed himself to be free to remarry and married Juliet. Under cross-examination, however, the accused admitted that he was aware that the divorce would have to be processed through the local court. He further stated that this was the reason why he had withdrawn the certificate of customary marriage from his superior officer who was keeping it and gave it to Dorothy. The accused said that he had also written letter of divorce inviting Dorothy to use it as evidence to obtain a divorce in the local court. She in fact sued for divorce but as already stated, divorce was refused. According to the accused, he firmly believed that the marriage had ended in fact and that the local court proceedings would merely formalise the existing divorce. He further said that it was only when the local court refused to grant the divorce that he realised he was still married to Dorothy.

Going by the accused's own evidence, it is obvious that he knew at all times that his marriage to Dorothy subsisted until a local court decree be obtained. At best, what the accused called a verbal divorce by mutual agreement was or must have been known by him to be, at the time, no more than a separation and breakdown of marriage which he undoubtedly thought meant the de facto and irreversible end of the marriage then merely requiring the formality of divorce proceedings in the local court to put a legal end to it. Legally, the accused remained married and is still married to Dorothy. In fact, the parties resumed cohabitation.

I am satisfied that on 22nd March, 1976, when the accused gave notice of marriage to Juliet right up until 13th April, 1976, when he purported to marry her, and indeed thereafter and at all times, the accused knew that he was still married to Dorothy. PW3, the marriage officer, gave the accused all the necessary warnings and obtained an affidavit from the accused and yet the accused still held himself out to be an unmarried man. I do not accept that the accused held any reasonable belief that he had divorced Dorothy. Indeed if the accused held such a belief, and I have said he did not, nevertheless a belief of that sort in the circumstances narrated by the accused himself would be totally mala fides and unreasonable. The second part of the defence also fails. The accused chose to marry the second wife under the Marriage Act. He may or may not have fully realised the consequences. He thought, as he stated, that he would merely be enabling his wives to have certificates to entitle them to be permitted to live in the Army Barracks with him. Those who do not want to be involved in this type of case should stick to the customary law marriages where, fortunately, man may yet marry as many wives as his heart desires. Alongside polygamy, we have bigamy which it was the misfortune of the accused, who is an indigenous Zambian, to have committed.

A villager in some remote part of Zambia may be astonished to hear that a Zambian man was punished for marrying two women but as I have said those who adopt the English law will be dealt with accordingly.

I am therefore satisfied that the prosecution has proved its case beyond all reasonable doubt. The accused is found guilty as charged and convicted accordingly.

Accused convicted