The facts of the case were that the petitioner had gone through a marriage of convenience with the respondent. This was so because she wanted a citizenship in Zimbabwe because she couldn’t get the said citizenship (i.e. it was difficult for her) through the normal way. The marriage between the petitioner and the respondent ( a Zimbabwean Citizen) was never consummated because, as the parties to the marriage put it, it was a marriage of convenience. As time went on, the respondent wished to marry someone else and the petitioner herself gave oral evidence that she had a boyfriend in Zambia and wished to have the marriage set aside so that she could be free.
Whether a decree of nullity could be granted on the ground of failure to consummate given these set of facts?
In its holding, the court used the case of Sheldon v Sheldon as authority. In that case, both parties to the marriage made no attempt at consummation and had no sexual affection for each another. Sakala J, as he was then, quoted Karminski J as saying, “The burden of satisfying the Court that either the husband or wife was incapable of consummating the marriage was wholly on the wife. She had failed to discharge this burden. It was clear that the question of capacity had never been put to the test…” Basing on authorities, it was held that wilful refusal must not be by the petitioner but by the respondent’s incapacity to consummate (unknown by the petitioner at the time of marriage). Since no reason was given for failure to consummate apart from obtaining Zimbabwean citizenship, it was held that it would be against justice, public policy and morality to permit the petitioner to plead her own failure to consummate the marriage as a ground for a decree of nullity given the fact that she was aware that the marriage by their arrangement was not to be consummated. This therefore meant that the capacity to consummate the marriage was not put to test. Hence the petition was dismissed.
For fear of deviating into the mechanics of biology, I deliberately avoided defining the word ‘consummation’. Perhaps Dr Lushington wise words in the case of D-E v The AG would be of help.
This case is quite strange I might add. Not only were the arguments raised by the petitioner ‘weak’ but also her petition went undefended. Clearly, the intentions of the parties were obvious and it was easy for Sakala J to see through them. Nonetheless, it stands as another testament to the greed of men, and also as an attempt to relegate the sanctity of marriage to selfish-ambition (see also Chilima v Chilima).
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