Wakilii

Uganda v Baguma (HIGH COURT CRIMINAL CASE No. 0078 of 2001)

High Court · [2002] UGHC 31 · 2002 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Divorce petition and cross-petition for dissolution of marriage
Decision
Marriage dissolved by decree nisi; custody of children granted to petitioner with access rights to respondent

Observed later treatment

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Holding

Held that sections 5 and 6 of the Divorce Act, which create different divorce grounds for men and women, are inconsistent with Articles 21, 31, and 33 of the 1995 Constitution guaranteeing equal rights. A wife may petition for dissolution of marriage on the ground of adultery alone, in the same manner as a husband. Where both parties admitted adultery, the court granted a decree nisi dissolving the marriage, awarded custody of the children to the petitioner with access rights to the respondent, but refused costs and damages to any party as neither came to court with clean hands.

Outcome

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

Facts

The petitioner and respondent married on 1 October 1983 at Namirembe Cathedral and cohabited until 1999, 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 bore a child not his. Both parties admitted committing adultery with third parties. At the scheduling conference, the parties agreed on custody arrangements, maintenance responsibilities, and that certain property disputes 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 in creating different rights for men and women in divorce proceedings.
  4. Whether a wife may petition for dissolution of marriage on the ground of adultery alone under the constitutional principle of equal rights.
  5. Whether costs and damages should be awarded to any party in circumstances where both parties admitted adultery.

Orders

  • A decree nisi is pronounced dissolving the marriage between the petitioner and the respondent.
  • The custody of the children of the marriage is granted to the petitioner.
  • The respondent shall have access to the 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 — Inconsistency with Constitution
Sections 5 and 6 of the Divorce Act, which permit a husband to petition for dissolution of marriage on the ground of adultery alone but require a wife to prove adultery plus an aggravating factor, are inconsistent with Articles 21, 31, and 33 of the 1995 Constitution and are void to the extent of the inconsistency.
Statutory Interpretation — Constitutional Supremacy — Reading Down Inconsistent Provisions
Under Article 2(2) of the Constitution, if any law or custom is inconsistent with the Constitution, the Constitution prevails and that law or custom is void to the extent of the inconsistency. Article 273(1) requires existing laws to be construed with modifications necessary to bring them into conformity with the Constitution.
Family Law — Divorce — Wife's Petition on Ground of Adultery Alone
The principle of equal rights and opportunities before the law requires that a wife may petition for dissolution of marriage on the ground of adultery alone, in the same way as a husband is entitled to do under section 5 of the Divorce Act.
Family Law — Divorce — Proof of Adultery — Admission
Adultery may be proved by a party adducing evidence, by the adulterer admitting the fact of adultery, or by circumstantial evidence. Once admission is made in pleadings under Order XI rule 1 of the Civil Procedure Rules, the admitted fact need not be proved and the party is entitled to judgment on the admission.
Family Law — Divorce — Costs — Discretion to Refuse Where Both Parties Guilty of Adultery
Where both petitioner and respondent are equally guilty of adultery, the court may exercise its discretion under section 27 of the Civil Procedure Act to refuse costs to both parties on the basis that neither came to court with clean hands and no party should benefit from their wrongs.
Constitutional Law — Equality — Section 23 of Divorce Act — Discriminatory Costs Provision
Section 23 of the Divorce Act, which provides for a co-respondent to pay costs to a husband petitioner where adultery with the wife is proved but contains 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 — Child Custody — Welfare Principle — Agreed Arrangements
Under section 30 of the Divorce Act, the court makes such order as to custody, maintenance and education of children as it deems fit, with the welfare of the child as the guiding principle as set out in sections 4 to 6 and the First Schedule of the Children Statute. Where parties agree on custody and maintenance arrangements that serve the children's welfare, the court may adopt those arrangements.

Legislation cited (26)

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 v Amin (Civil Application No. 12 of 1968)
  • 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 v Prince Solomon Iguru and Others (Supreme Court Civil Appeal No. 18 of 1994)

Full judgment

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

Uganda v Baguma (HIGH COURT CRIMINAL CASE No. 0078 of 2001) [2002] UGHC 31 (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.