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

Facts

The petitioner and the respondent secretly went through a ceremony of marriage on 12th October 1990 at the office of the Registrar of Marriages in Lusaka. After their said marriage, they discovered that they were blood cousins. Consequently and because of this realisation, they never cohabited with one another and the marriage was never consummated. They now sought a decree of nullity from the Court based on Non-consummation.

Issue

In light of these turn of events, could the court grant a decree of nullity based on Non-consummation.

Held

The court held that the marriage was null and void ab initio (that is from the beginning) because the parties fell into the prohibited degrees of affinity and consanguinity. The court relied on Sections 11 subsection (1) (a) (i) of the Matrimonial Causes Act, 1973. Muzyamba J said 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.” Hence the court confirmed that the marriage was a nullity.

Commentary

We no longer use the Matrimonial Causes Act of 1973. We now use the Matrimonial Causes Act of 2007 (however these two are relatively similar). Check out the Matrimonial Causes Act No. 20 of 2007 Schedule (section 27 and 28) to see persons who fall under the prohibited degrees of Consanguinity and Affinity.

It is interesting that from a Criminal Law perspective and in using the Expressio Unius est Exclusio Alterius rule of statutory interpretation, a person can have carnal knowledge of a blood cousin and will not be prosecuted under section 159 of the Penal Code Act, Cap 87 of the Laws of Zambia because blood cousins are not mentioned. However, this is not to say that other provisions of law will be silent.

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Please feel free to comment below

VIGILANTE SCHOLAR TEAM

One thought on “HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)

  1. In many African traditions, culturally blood cousins are not prohibited from marrying one another. The case of Durga would not have gone that way if they had been Africans.

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