Wakilii

Rose Achom Opio v Lugazi Town Council (CIVIL SUIT NO. 240 OF 2000. ) (CIVIL SUIT NO. 240 of 2000.)

High Court · [2002] UGHC 35 · 2002 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Divorce petition and cross-petition brought before the High Court seeking dissolution of marriage on grounds of adultery
Decision
Marriage dissolved by decree nisi; custody of children granted to petitioner with access to respondent

Observed later treatment

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Holding

The court held that sections 5 and 6 of the Divorce Act, which create different grounds for dissolution of marriage for men and women, are inconsistent with constitutional provisions guaranteeing equality before the law and equal treatment of men and women. Applying constitutional principles of equal rights and opportunities, a wife may sue for divorce on grounds of adultery alone in the same manner as a husband. Both parties having admitted adultery, the court granted a decree nisi dissolving the marriage. No costs were awarded to either party given that both were equally guilty of adultery and had agreed to maintain a harmonious relationship for the welfare of their children. Custody was granted to the petitioner.

Outcome

Marriage dissolved by decree nisi; custody of children granted to petitioner with access to respondent

Facts

The petitioner and respondent married on 1 October 1983 at Namirembe Cathedral and cohabited in Kampala between 1983 and 1991, producing three children. The petitioner alleged the respondent committed adultery with multiple women and acts of cruelty, and deserted her in 1999. The respondent cross-petitioned, alleging the petitioner committed adultery with the co-respondent Moses Zizinga and produced a child not his. At scheduling conference, both parties admitted acts of adultery: the petitioner with the co-respondent (producing a child), and the respondent with Ayeta Wangusa and Florence Nambasa. The parties agreed on custody arrangements, child maintenance obligations, and that their jointly-owned property would be resolved in another forum.

Issues

  1. Whether the petitioner is entitled to the reliefs sought in the petition.
  2. Whether the respondent is entitled to the reliefs sought in the cross-petition.
  3. Whether sections 5 and 6 of the Divorce Act are inconsistent with the 1995 Constitution.
  4. Whether a wife may petition for divorce on grounds of adultery alone, in the same manner as a husband.
  5. Whether costs should be awarded to any party in circumstances where both parties admitted adultery.

Orders

  • A decree nisi is hereby pronounced dissolving the marriage between the petitioner and the respondent.
  • The custody of the children of the said marriage is granted to the petitioner, their mother.
  • The respondent shall have access to their children, at reasonable hours and times whether they are at the petitioner's home or at school.
  • Each party to the petition shall bear his or her own costs.

Rules and key headnotes

Constitutional Law — Equality and Non-Discrimination — Gender Equality in Marriage Law — Divorce Act Provisions Creating Different Standards for Men and Women
Sections 5 and 6 of the Divorce Act, which create different grounds for dissolution of marriage for men and women, are inconsistent with Articles 21, 31(1), 33(1), 33(6), and 34(4) of the 1995 Constitution and are void to the extent of their inconsistency with constitutional provisions guaranteeing equality before the law and equal treatment of men and women.
Statutory Interpretation — Reading Down Pre-Constitutional Legislation — Application of Article 273(1) and (2) to Existing Laws
Under Article 273(1) and (2) of the 1995 Constitution, existing laws must be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution, and where any law is inconsistent with the Constitution, the Constitution prevails and that law is void to the extent of the inconsistency.
Family Law — Divorce — Grounds for Dissolution — Equal Application of Adultery Ground to Both Spouses
The principle of equal rights and opportunities before the law requires that a wife may sue for divorce on grounds of adultery alone, in the same manner as a husband is entitled to do, notwithstanding the discriminatory wording of section 5 of the Divorce Act.
Family Law — Divorce — Proof of Adultery — Admission in Pleadings
Adultery may be proved by a party adducing evidence, by the adulterer admitting the fact of adultery, or by circumstantial evidence; where adultery is admitted in pleadings, it is proved and the admitting party will not normally be allowed to resile from a pleaded admission unless made under a genuine mistake of fact.
Family Law — Divorce — Costs — Section 23 of Divorce Act as Discriminatory
Section 23 of the Divorce Act, which provides for the co-respondent to pay costs to a petitioner husband where adultery is proved but makes no equivalent provision where the petitioner is a wife, is discriminatory against women and void to the extent of its inconsistency with the Constitution.
Family Law — Divorce — Costs — Exercise of Discretion Where Both Parties Guilty of Adultery
Where both parties to a divorce petition are equally guilty of adultery and neither comes to court with clean hands, and where the parties have agreed to settle expeditiously and maintain a harmonious relationship for the welfare of their children, the court may in its discretion refuse costs to both parties, ordering each party to bear their own costs.

Legislation cited (21)

Cases cited (10)

  • Muller v Minister of Pensions (1947) 2 All ER 372
  • Pan African Insurance Co v Uganda Airlines (1985) HCB 53
  • International Life Insurance Company. (U) Ltd. Versus Amin. A Civil Application 12/1968 Court of Appeal - Kenya
  • Gower v Gower (1950) 1 All ER 804 (CA)
  • Bater v Bater (1951) P 35 (CA)
  • Habyarimana v Habyarimana (1980) HCB 139
  • Nakaggwa v Kiggundu (1978) HCB 315
  • Uganda Development Bank v Muganga Construction Company Ltd (1981) HCB 35
  • Ruhara v Ruhara (1997) HCB 86
  • Prince J. D. C. Mpuga Rukidi vs. Prince Solomon Iguru & others Supreme Court Civil Appeal No. 18194

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rose Achom Opio v Lugazi Town Council (CIVIL SUIT NO. 240 OF 2000. ) (CIVIL SUIT NO. 240 of 2000.) [2002] UGHC 35 (12 December 2002)
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.