C v C AND H (1977) Z.R. 12 (H.C.)

Facts

The parties in this case were married in England. Two years later they came to Zambia and had two children, one of the children being as a result of the petitioner’s former marriage. The petitioner admitted an extra-marital relationship with a man (Mr. B) that lasted about six months or so. The respondent attacked this man (Mr. B) in barroom altercation and sustained injuries to his face as a result. In a separate divorce suit filed by Mr. B’s wife (Mrs. B), the petitioner admitted that she had committed adultery on one occasion with Mr. B [this was not used as a ground for divorce by the respondent].  There was also sufficient evidence of the respondent’s violence towards the petitioner.

Issue

Was the respondent’s behavior so unreasonable that the petitioner cannot be called to endure it?

Held

The court held that the petitioner had adduced sufficient evidence to support the finding of fact that the respondent was violent towards her. This of course following the holding of Mahande v Mahande  was unreasonable to the effect that the petitioner could not be called to endure it, taking into account her disposition, character and peculiarities. As regards the adultery, the court also held that the respondent could not rely on the earlier adultery of the petitioner as the same was forgiven and forgotten. Hence, the court was satisfied that the marriage had broken down irretrievably and dissolution was granted.

Commentary

Turning our minds to the standard of proof required in proving adultery, this case was particularly instructive in that it was held that while the criminal standard of proof no longer applies to the charge of adultery as it did in the old cases, a high standard of proof is still required to substantiate the allegation.

In other words, unlike criminal law where the standard of proof is beyond any reasonable doubt, an allegation of adultery can succeed with some degree of doubt, but this, of course, has to be negligible compared to evidence adduced to the contrary. (i.e. it has to be on a balance of probabilities).

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