SOMANJE v SOMANJE (1972) Z.R. 301 (H.C.)

Facts

The petitioner got married to the respondent when she was sixteen. Their marriage was arranged and evidence was adduced to the effect that she did not know the respondent before the marriage. On numerous occasions, the respondent took to drink and accused the petitioner of infidelity (including one occasion were respondent accused the petitioner of sleeping with her boss at work, causing her to lose employment). The respondent also attempted to commit suicide on numerous occasions often citing the petitioner’s infidelity as a reason. The petitioner’s mother testified to the court that indeed their marriage was an unhappy. Furthermore, the petitioner also claimed that the respondent did not maintain her and the children. 

Issue

The main issue to be determined by the court was whether the court could dissolve the marriage based on these set of facts?

Held

On the question of maintenance, the court made a finding of fact that supported the respondent’s evidence that he maintained the petitioner and the children. Furthermore, it was also found that while the children were in the matrimonial home, the respondent maintained them from his wages as did the petitioner. It was also established that both the petitioner and respondent bought items for the house and that during the marriage they did both contribute to the household expenses. The court also made a finding to the effect that the arranged marriage was an unhappy one from the start. The real reason as to why the petitioner wanted to end the marriage was because she grew tired of living with her husband and did not love him (not necessarily his conduct or accusations).  Even after the last occasion complained of, she still lived with the respondent for a couple of months or so (which, legally-speaking, meant the marriage hadn’t broken down irretrievably). Since unhappiness in a marriage cannot be a ground for dissolution, the petition was dismissed.

Comment

Towards the tail-end of the judgment the court also addressed its mind towards an issue raised by counsel that the marriage was customary and hence non-justiciable to the court. In response to this, the court took the view that there was no customary marriage before a priest and witnesses (as the facts of this case disclosed). Since the parties were married by the priest in the presence of witnesses, the marriage was held to be valid under common law.

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