Amina Bakari vs Ramadhani Rajabu [1986] TZHC 1 (14 January 1986)

Lugakingira, J.: This was a suit for custody of a child but it had rather unusual features. The parties were married in the early 1970s. They separated in August 1978 according to the respondent.   I On 30/12/78 they were formally divorced before the Primary Court at Merya. According to the respondent again, the appellant was then over eight months' pregnant and gave birth to a

male-child on 5/1/79 which was given the name Juma. He sued for  custody of the child in 1983 in  A order to provide it with proper maintenance. He tendered the child's birth certificate which was issued at Singida on 24/3/79.
The appellant resisted the claim. She alleged that she had been separated from the respondent for three years before she petitioned for divorce. She denied being pregnant at the time of the divorce.  BAccording to her, she got married to one Iddi Tenga in January 1979, got pregnant, and gave birth to a male child on 20/10/79 which was given the name Juma. She tendered clinic attendance cards to evidence the pregnancy and birth. According to her, therefore, the child's father is Iddi Tenga who  C in fact gave evidence claiming paternity.
The trial court doubted the respondent's story including his tendering of a certificate. It therefore held that Juma was born on 20/10/79 and was not the respondent's child. The court also purported  D to rely on Rule 183 of the Declaration of Customary Law, G.N. No. 279 of 1963, which provides that a man may not deny paternity of a child if named by a woman unless he can prove that he had no sexual relations with her. It interpreted this to mean that even a husband may not claim paternity of a  E child if another man has been named by the woman. The decision was reversed by the District Court which took a different view of the evidence and declared the respondent to be Juma's father although it did not grant him custody.
I have said that the case was unusual. Never before have I heard one and the same child being born twice and with documentary evidence on each alleged birth. It simply means that one of the parties  F was untruthful, for it is not in the nature of things to permit such a miracle. An added difficulty which greatly exercised the courts below is that the parties were remarkably inconsistent and unreliable where dates were concerned. Even the date of their marriage remained unsettled. In the  G divorce certificate Exhibit A - it is not clear by whom or when it was tendered -this date is given as 1972. In the appellant's evidence it is given as 1973 while in the respondent's evidence it is 1974. The respondent was not consistent even on the date of separation. It is either February or March or  H August 1978. He was only consistent that the appellant was already pregnant at the time. The same is true of the appellant. At first she stated that she did not know how long the separation lasted before she petitioned for divorce but later said it lasted three years. Her conception of time and her familiarity with the calender must be much doubted as she told the District Court that  I divorce was granted in 1983. With

  A such evidence and such witnesses the task of any court must be difficult indeed.
One thing is certain, namely, that the parties were divorced on 30/12/78 according to the divorce certificate Exhibit A. The greatest difficulty is to resolve the time of the conception and birth of the   B child Juma. Faced with this difficulty, the District Magistrate on first appeal wisely called for and pursued the divorce proceeding in Matrimonial cause No 34 of 1978. He discovered that on 1.12.78 the appellant admitted being pregnant and the argument then centred on the age of the pregnancy. I   C have no reason to doubt the learned District Magistrate on the discovery of this admission which he cites several times in his judgment. Now, where did that pregnancy go? The appellant offers no explanation but to deny any knowledge of it.This, I am afraid, is not a little dishonest. Apart from appellant's earlier admission, I note that in the divorce certificate exhibit A., which was taken out on   D 2/9/80, a child, Juma Ramadhani, is inserted as a child of the marriage. There is then the birth certificate Exhibit B. It is perfect in every respect and shows that one Juma Kidimwa Ramadhani was born to the parties on 5/1/79. Kidimwa is another of the respondent's names. In law, a birth   E certificate is presumed to be genuine, it being a certified copy of an entry in the births register - see s.88 of the Evidence Act, 1967. The burden of rebutting that presumption was in this case on the appellant. In my respectful view it was not rebutted by the production of clinic-cards, Exhibit C.,   F which have no legal standing and which are altered in not less than twenty places. It required more and better evidence than the apparently conspiratorial stories of the appellant and her present husband. I am therefore in agreement with the learned District Magistrate that Juma was conceived during the subsistence of the marriage and was born on 5/1/79 shortly after its dissolution.
  G It is of course uncertain whether the respondent is Juma's natural parent given the uncertainty of the date of separation and the unreliability of the parties generally. The matter, however, is governed by customary law and the courts below proceeded on that footing. It may be mentioned that in   H Singida district it is not uncommon to find people with names that have no bearing to their religious persuasions, if any. And even where names indicate any religion, customary law still plays a predominant role. It was therefore not suggested in this case that the parties' matrimonial   I relationship was anything but customary. In accordance with Rule 175 of the Declaration already referred to children born to a married couple belong to the husband and this has been interpreted to include children

conceived during the subsistence of the marriage but born after its dissolution. Under this rule it is  A immaterial that a child is sired adulterously. It belongs to the husband so long as he accepts it. On the facts of this case, it follows that Juma is the respondent's son regardless of how he was conceived.
There have been interesting propositions about a child born to a married couple or "born in  B wedlock" and this judgment would be incomplete without reference to them. I am having in mind what was said in Richard Mapesa v Rashid Bwana [1978] LRT n.4 and Mungasio Munchari v Moseti Meremo [1978] LRT. n.6. These decisions propound the view that Rule 175 applies to a child  C "born to married parents" or a child which is a "natural product of the physical union between husband and wife". Under this view a child born adulterously does not fall under Rule 175. I have a great deal of respect for my learned brothers who took that view but I think it is an ingenious interpretation which does not find justification in the customary law of which Rule 175 is a mere  D declaration. The problem could possibly stem from the proliferation of terms and expressions. We have the original "watoto wanaozaliwa na watu walioona"; we then have "children born to married parents", "children born during the subsistence of a marriage" "children born in wedlock", etc.; but  E whatever be the correct English expression it provided no justification for denying the spirit of the customary rule from which Rule 175 derives. This is the preservation of the sanctity and dignity of the marriage institutions by refusing to recognise adultery, a trespass to the marriage, as taking precedence over and ousting the husband's rights. It is thus possible to identify two fundamentals  F in the rule. First of all, the contract of marriage confers certain rights on the husband, including the right to children born during the subsistence of the marriage, and this is secured by the payment of bridewealth. Secondly, customary law, like any civilised law, recognises no rights founded in  G transgression. It is therefore open neither to the wife nor to her lover to deny the husband's paternity to a child born during the subsistence of the marriage.
These arguments are by no means new. In Masuka v Sigonjwe [1971] H.C.D. n.92 the adulterer filed a case against the husband claiming custody of a child born of the wife, of which the adulterer  H claimed to be the father. The wife admitted adultery and said that the adulterer was the true father of the child. The claim failed in both the Primary and the District Courts because according to Gogo customary law every child born during the subsistence of the marriage  I

  A is a child of such marriage. On appeal to this Court, Hamlyn, J. dismissed the appeal stating:
   It would of course be quite improper to allow the claim of the woman in circumstances such as these, or B even to accept such evidence as having any bearing on the matter....It is clear that the local customary law contains not only basic robust commonsense but that it also accords with more sophisticated codes in this matter.
  C And in the famous words of Kwikima, A.g J. in the case of Mgowa Madola v Mgogolo Dododo [1973]  LRT n. 7:
   Anyone who sires a child adulterously cannot be heard to claim it. Even if such were not the accepted D custom, the ethics of our present time would not tolerate an adulterer benefiting from his sin to the detriment of his cuckold.
I agree. I think, therefore, that to the extent that the cases of Richard Mapesa and  Mungasio   E Muchari held Rule 175 to be inapplicable to children born adulterously, they cannot be said to have been correctly decided. I venture to suggest with perfect respect, that these decisions proceed on a misconception of legitimacy as a biological state when in fact it is a legal status. A child is legitimate   F or illegitimate not merely from the circumstances of its birth but because the law declares so. Customary law declares that children born during the subsistence of the marriage are legitimate children of the husband. That is the end of the matter unless the husband himself, but not the wife or the adulterer, elects and is able to rebut the presumption. This also disposes of the trial court's   G reference to Rule 183. That provision applies to children born of unmarried women but does not licence a married woman to behave as if she were a wild tree from which any man could gather fruit.
As stated earlier the respondent is the father of the child Juma and I uphold the District Court's   H declaration on the issue. I also think that the issue of custody was rightly decided although for different reasons. Juma is now seven years of age and has throughout been in the custody of the appellant. It would not be in his interests to disturb him by placing him in the custody of the respondent, a person he probably does not know. In fact the respondent never appealed against the   I order denying him custody and had adduced no evidence as to how he could better secure the child's welfare.

Save for the issue of custody, therefore, the appeal is otherwise dismissed. There will be no order as  A to costs.
Order accordingly.

B