Wakilii

Banzawihe v Iradukunda (Matrimonial Cause 76 of 2020)

High Court · [2023] UGHCFD 127 · 2023 Petition Granted — Marriage Dissolved AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Divorce petition heard exparte after respondent failed to file defence
Decision
Marriage dissolved on ground of desertion; physical custody of child granted to respondent with petitioner maintaining the child

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Holding

The High Court has jurisdiction to dissolve the marriage under its unlimited original jurisdiction despite the parties' nationalities. The marriage is valid where the marriage certificate shows it was celebrated at a licensed Church of Nazarene, notwithstanding conflicting evidence about the actual venue. Desertion is established where the respondent left the matrimonial home in 2020 and has not returned for three years. Cruelty was not proved. The marriage is dissolved on the ground of desertion. The respondent is granted physical custody of the minor child with the petitioner retaining legal custody and maintaining the child.

Outcome

Marriage dissolved on ground of desertion; physical custody of child granted to respondent with petitioner maintaining the child

Facts

The petitioner and respondent, both Africans domiciled in Uganda (the petitioner being Ugandan and the respondent Rwandese), were married on 24 November 2018 at what was recorded on the marriage certificate as Nyanama Church of Nazarene. They have one child, Mugisha Aaron, born 29 August 2019. The petitioner alleged the marriage was celebrated at Jeshim Church at Ndejje, an unlicensed place of worship, and therefore void. He further alleged the respondent deserted the matrimonial home in April 2020 and has been living with her mother since. The petitioner claimed the respondent denied him conjugal rights and was cruel. The respondent was served with the petition but did not file a defence. The matter proceeded exparte. A search with the Registrar General confirmed Church of Nazarene is licensed and gazetted to celebrate marriages but found no record of Jeshim Church. The petitioner testified the respondent left three years ago and has not returned.

Issues

  1. Whether the High Court has jurisdiction to entertain this matrimonial matter where both parties are not Ugandan citizens.
  2. Whether the marriage between the petitioner and the respondent is valid where it was allegedly celebrated at an unlicensed place of worship.
  3. Whether there are sufficient grounds for the dissolution of the marriage on account of desertion and cruelty.
  4. What remedies are available to the parties regarding dissolution, custody, and maintenance.

Orders

  • The marriage between Banzawihe Isidol and Iradukunda Jeanette is hereby dissolved on account of desertion; a Decree Nisi hereby issues.
  • The parties shall share legal custody of the child Mugisha Aaron while physical custody is granted to the respondent with the petitioner having access to the child with prior notice to the respondent.
  • The petitioner shall provide maintenance for the child.
  • The petitioner shall bear his costs.
  • The Petitioner shall bring this divorce order to the attention of the Registrar of Marriages for purposes of updating the Register.

Rules and key headnotes

Family Law — Jurisdiction — High Court jurisdiction in matrimonial matters where parties are of different nationalities
The High Court has unlimited original jurisdiction under Article 139(1) of the Constitution and section 14(1) of the Judicature Act to entertain a matrimonial petition even where the parties are not both Ugandan citizens, and may assume jurisdiction in the interests of justice and to avoid multiplicity of suits notwithstanding that jurisdiction would ordinarily lie with the Magistrate's Court under section 3(1) of the Divorce Act where all parties are Africans.
Family Law — Marriage — Validity of marriage celebrated at unlicensed place of worship
Under section 34(2)(a) of the Marriage Act, a marriage shall be null and void if both parties knowingly and willfully acquiesce in its celebration in any place other than a registrar's office or a licensed place of worship. Where the marriage certificate shows the marriage was celebrated at a licensed place of worship and there is no evidence that the parties had knowledge before or during the marriage that the actual venue was unlicensed, the marriage is valid.
Family Law — Divorce — Desertion — Elements to be proved
For desertion to be established as a ground for divorce under section 4 of the Divorce Act, the spouse must have left the marriage without the other spouse's consent, with no intention of coming back, and stayed away from the marriage for at least two years. Desertion is the withdrawal of cohabitation by one spouse from the other, whether actual or constructive, without reasonable excuse for two or more years.
Family Law — Custody — Best interests of the child — Joint legal custody with physical custody to one parent
Under Article 31(4) of the Constitution and section 4(1) of the Children Act, it is the right and duty of parents to care for and bring up their children, and both parents have similar and equal rights with regard to custody. The welfare of the child is best served if both parents are involved in the upbringing. The court may grant joint legal custody to both parents while granting physical custody to one parent, with the other parent having access rights.
Civil Procedure — Exparte proceedings — Effect of failure to file defence after service
Where a respondent is properly served with a petition and declines to file a defence, the respondent is deemed to have admitted all the petitioner's pleadings under Order 9 rule 11(2) of the Civil Procedure Rules, although the claims must still pass probity and the petitioner must prove the case to the required standard.

Legislation cited (18)

Cases cited (13)

  • Prof. Oloka Onyango & Others v Attorney General (Constitutional Petition No. 6 of 2014)
  • Samwiri Massa v Rose Achen [1978] HCB 279
  • Samwiri Massa v Rose Achen [1978] HCB 279
  • Uganda Association of Women Lawyers (FIDA) & 5 Others v Attorney General (Constitutional Petition No. 2 of 2003)
  • Julius Chama v Specioza Rwalinda Mbabazi (Divorce Cause No. 25 of 2011)
  • Redpath v Redpath and Milligan [1950] 1 All ER 600
  • Habyarimana Veronica v Habyarimana Perfect [1980] HCB 139
  • Rose Katungye v Salex Katungye (1999) KALR 891
  • Kayhul v Kayhul (Divorce Cause No. 123 of 2016)
  • Fitzgerald v Fitzgerald (1864) LR 1 P & D 658
  • Jacksoit v. Jacksoid [1995]-P. at p. 178
  • Veronica Habyarimana v Perfect Habyarimana [1980] HCB 139
  • Rwabuhemba Tim Musinguzi v Harriet Kamakune (Civil Application No. 142 of 2009)

Full judgment

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Banzawihe v Iradukunda (Matrimonial Cause 76 of 2020) [2023] UGHCFD 127 (24 July 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.