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IN THE HIGH COURT FOR ZAMI3IA-7 . 2016/HP/D352
HOLDEN AT LUSAKA 07

(Divorce Jurisdiction)
07 JUL 2017 iez_

BETWEEN:
DORCAS NGULUBE CHISENGA PETITIONER
AND
EMMANUEL CHISENGA RESPONDENT

BEFORE HONORABLE JUSTICE MR. MWILA CHITABO, Sc

For the Petitioner : Ms. Hawa Musonda of Legal Aid Board

For the Respondent : In Person

JUDGMENT

Cases Referred to:

1. Reneville v Reneville (1948) ALL ER at 60
Legislation Referred to:
1. Matrimonial Causes Act No. 20 of 2017

This is a contested petition for divorce which was filed into Court on
pursuant to Section 9(1) (b) of the Matrimonial Causes Act No. 20 of
2007.

The petitioner, Dorcas Ngulube Chisenga's prayer was that her

marriage to the respondent, Emmanuel Chisenga be dissolved on
account that the said marriage had broken down irretrievably. The
petitioner contended that the respondent had behaved in such a
way that she could not be reasonably expected to live with him.

The particulars of the said unreasonable behaviour were stipulated

as follows:-
respondent had lost affection and respect for the
Petitioner ever since she disclosed to the Respondent that
the Petitioner was pregnant for another man three weeks
after their wedding day.

This manifested by the Respondent's habit of demanding

that the Petitioner discloses names of any man who
proposed love to the Petitioner whenever the Petitioner went
to buy groceries.
The Respondent promised the Petitioner that the
Respondent was going to take care of the pregnancy and the
Child when it was born. However after a month the
Respondent changed his mind and started threatening the
Petitioner that he would kill the baby when it was born.
On several occasions the Respondent demanded that the
Petitioner should be moving around naked whenever home.
The Respondent's bad behaviour was unrelenting which
compelled the Petitioner to seek the intervention of family
elders to counsel the Respondent in order to resolve the
disputes between them, which counsel was in vain.

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 After the family members failed to resolve the problems, on
13th January, 2016 at 22:10hours the Respondent took the
Petitioner to her elder sister's house and wrote on a piece of
paper that he would petition for divorce.
After delivering the baby, the Respondent told the Petitioner
that she could return to her matrimonial house on
condition that she moved naked and reported any man who
proposed love to her which led to her not returning to her
matrimonial home.
The Respondent had been threatening the Petitioner that if
he ever found her with another man he would kill her.
The Respondent was demanding back his dowry of K7,000
which he paid for marrying the Petitioner and the
Respondent had refused to divorce the Petitioner until the
said dowry was paid back.
The Petitioner on 31st October, 2016 reported the
Respondent to the Police at the Victim support Unit
regarding his threats.

The petition showed that the parties were lawfully married at

Shechem Baptism Church in Lusaka on 12th September, 2015 and
they last co-habited at Matero East, in Lusaka. There was one child
of the Petitioner now living aged seven months old at the time of the
petition. It also revealed that there was no child now living who was
born to the Respondent during the same marriage as far as was
known to the Petitioner. The petition revealed that there had been
no previous proceedings in Court in Zambia or elsewhere with
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reference to the said marriage or to any child of the Petitioner and
Respondent. That there were no proceedings continuing in any
country outside Zambia which was in respect of the marriage or
were capable of affecting its validity or subsistence. The petition
also revealed that no agreement or arrangement had been made
regarding the maintenance of the Petitioner and the child of the
Petitioner.

The Petitioner further prayed that there should be an order for

property settlement.

The Respondent filed an answer and cross petition where he also

prayed for the dissolution of the marriage and denying that the said
marriage had broken down irretrievably.

The Respondent in his answer and cross petition asserted that the
Petitioner's Child did not bear the name Chisenga as that was his
name and he was not the father of the said child. He further
asserted that the Petitioner had behaved in such a way that she
could not be reasonably expected to live with him.

He strongly contended that The Petitioner committed adultery with

the father of the Petitioner's child and that the marriage should be
dissolved on account of the Petitioner's adultery which she admitted
in her petition. The Respondent denied ever asking the Petitioner to
disclose all the men that proposed love to her as the Petitioner had
already confessed to the Respondent that she was already pregnant
for another man.

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He stated that he admitted to taking responsibility for the
pregnancy because it would be a big embarrassment to the parties
and both families to divorce immediately after the wedding due to
the infidelity of the Petitioner. He also denied ever asking the
Petitioner to move around naked in the house.

He denied taking her to her sister's house but that when he

returned from work on the day in question, he found the Petitioner
on the veranda, months after she started staying with her boyfriend
and she was the one who demanded to be taken her to her sister's
place.

The Respondent denied taking gifts for the baby to the Petitioner
after her baby was born because he was hurt by her adulterous
behaviour. He however admitted to having allowed the Petitioner to
return to her matrimonial house while she was still pregnant
despite knowing that he was not the father of the child but denied
giving her conditions for her return.

He stated that the Petitioner was currently living with the father of
her child and denied the allegations that he threatened to kill the
man. He further stated that the Respondent demanded his dowry
back as he never had conjugal rights with the Petitioner as she
always refused cutting that she could have complications giving
birth since that was not his child.

The Respondent additionally prayed for an order that the K7, 000
dowry paid to the Petitioner's family be paid back to him. That there
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be property settlement including the plot which the Respondent
purchased. The Respondent also prays for K20, 000 damages for
the money wasted during the wedding because the Petitioner did
not disclose before the wedding that she was pregnant.

The matter came up for hearing on 19th June, 2017 and both
parties gave evidence before Court.

The petitioner in her evidence told the Court that the two of them
lived as man and wife after their marriage but she did not have any
children with the Respondent during the subsistence of the
marriage. She stated that she, however, had a child during the
subsistence of the marriage, namely, Tasheni Chisenga born on 1st
May, 2016.

The Petitioner stated that the marriage to the Respondent had

broken down irretrievably on account of the Respondent's
unreasonable behaviour after she disclosed that she was pregnant
with someone else's child. She testified that the Respondent
threatened to kill the unborn child. She also told the Court that he
gave her instructions that if she was to live with him, she should
disclose the names of the men who would be proposing love to her
and that he demanded that she moves around naked around the
house. According to her he further demanded to answer phone calls
on her pone and it was for that reason that she requested the Court
to dissolve the marriage.

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During cross examination the Petitioner disclosed that the father of
her child's name was Derrick Mwanza but she was using Chisenga
because the Respondent accepted responsibility of the child.
According to her while she was going for antenatal, she asked him if
she could use his name and he agreed.

She also revealed that after the marriage she told him that she was
having her menstrual cycle and later confessed that she was
pregnant. She stated that after she disclosed that the child did not
belong to the Respondent, he said he would be doing everything for
the child. She insisted that the Respondent instructed her to be
moving around naked in the house and further added that it was
not always that the Respondent was away from home. She
maintained that the Respondent threatened to kill her and her child
before the child was born. She revealed that she discovered that she
was seven weeks pregnant a week before the wedding and
everything was in place and she was scared that she would cause
damage to both the families if she disclosed. She stated that she did
not intend for the Respondent to waste money but allowed the
wedding to happen because of her love for him.
In re-examination the Petitioner stated that she had stayed in
marriage for five months and stated that they used to have sexual
relations.

The Respondent in his evidence in chief testified that when he

approached the Petitioner's family for her hand in marriage he was

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informed that she was a virgin. According to him, as a requirement
at the church where they wed, the woman had to undergo a
pregnancy test. He stated that the Petitioner submitted a child's
urine as a specimen and the results showed that she was not
pregnant.

He explained that when she was taken to his house on the wedding
night, she was said to have been on her menstrual cycle and as
such could not sleep with the Respondent. He further explained
that when they went to their matrimonial house, the Petitioner used
to sleep on in the living room to avoid contact with the Respondent.
He said she continued like this for 10days. According to the
Respondent, the Petitioner started insulting him when he insisted
she goes to the hospital. On the 10th day he found that the
Petitioner had left home with her luggage. He started searching for
her until midnight when she told him she was with her husband
who impregnated her.

He stated that after pleading with her to come and discuss the
matter and the Petitioner went to meet with him the following day.
She explained that two weeks prior to the wedding she had gone to
a bachelor's party where she met a man. She was so drunk that she
could not recall the man who impregnated her.

He stated that because he had not even finished paying for their
wedding, he decided that the two should stay together to avoid

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embarrassment. She then revealed that in fact she spent the night
at the same man's house. She told him that they could not meet
sexually due to a myth that if she slept with another man while
carrying someone else's child, she would could die during child
birth.
It was his testimony that they failed to resolve the matter and the
Petitioner subsequently ran away.

The Petitioner is said to have told her father that she did not love
the Respondent but merely wanted a wedding. She was later taken
to Emmasdale Police where she was instructed to go with the
Respondent.

The Respondent stated that during the night the Petitioner came
with two knives trying to kill him. She then left home and never
came back until January 2016 when she followed him at his new
residence. The Petitioner requested that the Respondent takes her
back where he took her from. He then booked a taxi and she was
taken to her parents. According to him the marriage had broken
down irretrievably. He asked the Court for a refund of the dowry of
K7, 000 and to be compensated for the money he spent at the
wedding.

During cross examination the Respondent denied ever having sex

with the petitioner because she told him she was on her menstrual

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cycle and later found that she was pregnant. He also denied forcing
himself on her.

He explained that the Petitioner told him that she wanted to go to

the man who impregnated her. He however did not know nor had he
met this man. He disclosed that he when she left home he made
inquiries from the Petitioner's sister as to her whereabouts and her
sister informed him that she would look for her but after four
months nothing happened.

He explained that when he took the Petitioner to her sister's place

in January, 2016, the Petitioner's sister demanded that he go back
with his wife which he refused. That's when he signed a document
stating that he was not getting the Petitioner because he had
refused her.

I have carefully considered the evidence before me and it must be

pointed out from the outset that this divorce petition is based on a
contentious fact of unreasonable behaviour on the part of the
Respondent and adultery on the party of the Petitioner. Each party
in this case led evidence to show the other as the erring party.

Having said this, it is now critical for me to take into consideration

the key issues raised at trial and in the petition, answer and cross
petition. I will begin with the Respondent's claim that he did not
have sexual relations with the Petitioner during the subsistence of

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the marriage. He strongly contended that the Petitioner refused to
sleep with him on account of, firstly, being on her menstrual cycle
after the wedding and subsequently due to the fear that she could
die during child birth if she had sexual intercourse with another
man while pregnant for another. This fact if proven is a ground for
nullity of this marriage because it is being asserted that the
marriage was a voidable marriage by virtue of failing to
consummate the marriage.

According to Greenin the case of Reneville v Reneville (1948) ALL

ER at 60:

"A voidable marriage is one that will be regarded by every

court as a valid subsisting marriage until a decree annulling it
has been pronounced by a court of competent jurisdiction"

Section 29of the Matrimonial Causes Act No. 20 of 2007provides

the grounds on which a marriage shall be voidable. The said section
provides that:

29. A marriage which is celebrated after the

commencement of this Act, not being a marriage that is
void, shall be voidable on the grounds that-

(a) the marriage has not been consummated due to the

incapacity of either party to consummate it;

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 the marriage has not been consummated due to the
willful refusal of the respondent to consummate it;

In the present case, the Respondent claims he did not have sexual
relation with the Petitioner while the Petitioner claims that they
used to have sex. The evidence of this issue by either party has not
been supported by any evidence other than each party's own word
and it would be difficult to assume that sexual intercourse actually
happened or it did not happen. On that account only, a decree for
nullity would fail.

Having said this, the same section 29 gives other grounds that may
lead to a marriage being voidable apart from non-consummation. It
states that:
29. A marriage which is celebrated after the
commencement of this Act, not being a marriage that is
void, shall be voidable on the grounds that-

either party to the marriage did not validly consent to

it, whether in consequence of duress, mistake,
unsoundness of mind or otherwise;

at the time of the marriage either party, though

capable of giving a valid consent, was suffering, whether
continuously or intermittently, from a mental disorder
within the meaning of the Mental Disorders Act of such a
kind or to such an extent as to be unfitted for marriage;
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 (e) at the time of the marriage the respondent was
suffering from a sexually transmitted disease in a
communicable form; or
ff) at the time of the marriage the respondent was
pregnant by someone other than the
petitioner. (Emphasis mine)

It is not in dispute that the Petitioner in this matter was pregnant

with another man's child at the time she married the Respondent.
Therefore, while there is insufficient evidence to support the
assertion that there was refusal to consummate the marriage, this
case still falls under a voidable marriage by virtue of section 29(f) of
the Matrimonial causes Act.

Section 30 of the same Act gives instances where the Court will not
grant a decree for nullity. Subsections 2 and 3 of that section in
particular provide as follows:

Notwithstanding subsection (1), the Court shall not grant

a decree of nullity under section twenty-nine on the
grounds specified in paragraphs (c), (d), (e) or (f) of that
section unless it is satisfied that proceedings were
instituted within three years from the date of the marriage.

Notwithstanding subsection ( I) and (2), the Court shall

not grant a decree of nullity under section twenty-nine on

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 the grounds specified in paragraph (e) or (f) of that section
unless it is satisfied that the petitioner was at the time of
the marriage ignorant of the facts alleged.

As a starting point, I wish to point out that this Petition, though

was not a petition for nullity, has been filed within the stipulated
time frame of 3 years prescribed by law. The parties were married
on 12th September, 2015 and the action was commenced on the
15thDecember, 2016. I am satisfied that the proceedings were
instituted within the time prescribed.

I will now move to whether this Court is satisfied that the

respondent was ignorant of the facts alleged. Section 30(2) is very
clear that a decree for nullity should not be granted unless the
Court is satisfied that the Petitioner was completely ignorant of the
facts alleged. In the present case there is a petition for divorce
before me. However, the circumstances under which this petition is
brought raise serious issues that could render this marriage a
nullity.

The evidence before me is very clear. It is undisputed based on the

Petitioner's own admission that the Petitioner in this case concealed
her pregnancy from the Respondent until after the marriage had
taken place. This issue once discovered has been the main source of
conflict in this marriage as the Respondent did not accept the child
that the Petitioner was carrying.

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Having therefore considered the totality of the evidence before me, I
am satisfied that the Respondent was not aware of the Petitioner's
pregnancy when they got married.

I am accordingly satisfied that the marriage solemnized on the 12th

if September, 2015 at Shechem Baptism Church in Lusaka under
the provisions of the Marriage Act between Dorcas Ngulube
Chisenga and Emmanuel Chisengais voidable in terms of Section
29(1) of the Matrimonial Causes Act, Number 20 of 2007 of the
Laws of Zambia.

I accordingly decree that the said marriage be annulled and a

decree of nullity is hereby granted annulling the said marriage.

With regard to the Respondents claim for the refund of the dowry in
the sum of K7, 000 and compensation for money spent on the
wedding in the sum of K20, 000, I must state from the onset that
the Court has no jurisdiction to grant the relief sought in relation to
the dowry refund as that is a matter under customary law which
can ably be dealt with by the local Courts.

With regard to the damages sought by the Respondent, firstly, this

Court cannot grant the relief sought of compensation for the cost
incurred by the respondent during the wedding. The only relief for
damages available at dissolution of a marriage is under section 11
of the Matrimonial Causes Act. This section is very clear that

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damages can only be awarded where there has been established
adultery and the said damages are to be paid by the person who
committed adultery with the party to the marriage. In the current
circumstances, there has been no evidence led by the Respondent
as to the adultery committed by the Petitioner nor has any person
been cited for such adultery. In view of this the relief sought cannot
be granted.

I order that the Petitioner bears the costs of this action.

Leave to appeal is granted.

Delivered under my hand and seal this day of July, 2017

Mwila Chitabo, SC
Judge

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