MULUNDIKA v MULUNDIKA (1991) S.J. (H.C.)

Facts

The petitioner in this case sought a decree nisi in dissolution of the marriage based on the grounds that the respondent was quarrelsome, petty and infatuated by jealousy. He also claimed that the respondent hated guests and was rude to his brother (a man by the name of Sanford). He also told the court that the respondent was prone to excessive drinking and never prepared food for the petitioner’s relatives when they visited. Evidence was also adduced to the effect that the petitioner himself had extra-marital affairs with two other women and three children were born out of these affairs. The respondent claimed that she only turned to excessive drinking in order to cope with the depression she endured because of these affairs.

Issue

Using the Judge’s words the main issue was encapsulated as follows: “…bearing in mind the Petitioner’s faults and other attributes, good and bad, and having regard to his behaviour of extra marital affairs during the marriage, bearing in mind the characters and difficulties of both parties, trying to be fair to both of them and expecting neither heroic virtue or selfless obligation from either, has the Respondent then behaved in such a way that the Petitioner cannot reasonably be expected to live with her?

Held

In assessing what constitutes such behavior, the court quoted Barker, P in Katz v. Kartz (1972) 3 AER 219 as saying, “…behavior in this context is action or conduct by the one which affects the other….  It (the behavior) causes the court to come to the conclusion that it is of such gravity that the Petitioner cannot reasonably be expected to live with the Respondent. The court held that the question (established in our issue above) is one of finding of fact and the degree to which the act complained of has affected the marriage has to be taken into consideration; a decree will be refused if a respondent’s behavior arising from ill health, physical or otherwise is less severe. Most importantly, the court had to make a finding that despite longer periods of life together the total effect of the Respondent’s behavior during the marriage such that requirements of section 1(2) (b) had been satisfied. The court made a finding that the respondent had completely reformed and stopped drinking. Moreover, the parties had stayed with each for more than six months since the date of the last incident complained of. This proved that the petitioner could reasonably be expected to live with the respondent

Commentary

I believe I wouldn’t do justice to this case summary without mentioning the following: (i). Bweupe J labored hard to stress the point that the question to be determined is not whether or not the respondent is bad or has done something bad but rather whether or not the petitioner cannot be reasonably be expected to live with her. (ii.) The test that is to be applied is objective but it has to take into consideration the subjective elements of whether it was reasonable to expect the Petitioner to put up with the conduct of his or her spouse, bearing in mind the character of each spouse and other relevant matters.

Just to add, there are other matters which have been omitted due to their subjective qualities. Most of which are in the form of marital complaints; this of course is not to say they are not important.

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