المحكمة العليا

القضاة:

سعادة السيد/ على يوسف الولي         قاضي المحكمة العليا            رئيساً

سعادة لسيد/ جون وول ماكيج           قاضي المحكمة العليا            عضواً

سعادة السيد/ حيدر مصطفى حمد        قاضي المحكمة العليا            عضواً

الأطراف:

أكويت أتيم              طاعن

//ضد//

وليام واني              مطعون ضده

النمرة: م ع/ ط م/154/1997م

المبادئ:

1- القانون الذي يحكم مسائل الزواج والطلاق بالنسبة لأفراد قبيلة الدينكا هو عادة تلك القبيلة وذلك عملاً بنص المادة 5 (ب) من قانون الإجراءات المدنية لسنة 1983م

2- لما كان القانون يميل للحفاظ على العلاقة الزوجية فإن إجراءات دعوى الطلاق دائماً ما تكون مرنة وعادة تسبقها إجراءات التصالح قبل ولوج طريق المحكمة وإن فشلت مساعي الصلح  يلجأ الأطراف للمحكمة للحصول على حكم قضائي بالطلاق

3- في حالة وجود أطفال يميل القانون لحماية الوضع الاجتماعي للأطفال بالإبقاء على رابطة الزواج ورفض دعوى الطلاق ما لم يكن استمرار الزوجية قد أصبح  أمراً مستحيلاً وكذلك فإن طول العلاقة الزوجية عنصر يقلل من فرصة الحكم بالطلاق

الحكـــم

JOHN WUOL MAKEC

1861997

The applicant/plaintiff was formally married in Bor in 1984 by the respondent defendant Both spouses are from Dinka Bor they moved to khartoum and there after begot five children, three died and two remain alive

Their marital relationship seriously deteriorated since 1985 Since1985 up to the time his suit was raised there had been four desertions of the matrimonial home by the wife on the ground that her husband failed to maintain her and the children and also on ground of his mistreatmentShe had been moving to stay with her brother in Hag Yousif

In January 1996, while staying with her brother, she raised a suit for divorce on stated grounds She emphasised that her husband had chased her away from the matrimonial home and had been frequently accusing her of being unfaithful to him These claims were disputed by the husband The province Judge Khartoum who tried the suit dismissed itThe wife appealed to the Court of Appeal Khartoum but the appeal was dismissed She then submitted this objection by way of cassation to the Supreme Court

Before I state what law is applicable to this case, I would like to mention briefly the facts which the trial court recorded as follows:

On the question of mistreatment the wife said she had been chased away from the matrimonial home f6ur times by her husband She asserted that her husband who is quarrelsome had always been the cause of

conflicts which sparked the acts of her being chased away

The husband in reply stated a number of important points which serve as effective rebuttal of the wife’s charges and these form the bases of Court Judgement In the first place he denied beating her and explained how in one of the occasoons of quarrelling she got hurt She was the eause of her own hurt when she obtained the chair and wanted to beat her husband with it Her husband, in an attempt to defend his body, want ed to remove the chair from her hand During the struggle, she sustained some hurt But it had not been elaborated how serious the hurt or the in jury was

According to the husband, the first quarrel in 1985 was brought about when he wanted t reproagh his wife’s younger sister, who lived with then the wife’s sister according to him was fond of making frequent long visits to unknown homes or unknown people She stayed away for long hours and would return home at about 11pm or at mid-night the wife quarreled him when he rebuked her sister and ultimately she desert ed her husband’s home These statements were not rebutted by the wife Hence her silence implies their truthfulness

The second quarrel was coused when he asked her (his wife) why she delaged much in their neighbor’s home She grew wild; took a match box and ran into the latrine with intent to set herself on fire be cause she felt provoked by her husband’s question However, somebody ran after her to save her she afterwards deserted the matrimonial home

The third quarrel was caused when the husband blamed his wife after he had discovered that her younger sister had been impregnated by an unknown man during her frequent free travels, the husband stressed that while he was at work for much of the time his wife should have exercised a more effective control of her youmger sister who was freely moving  everywhere and returned home at odd hours of the night The wife quarreled and deserted the matromonal home

The fourth quarrel was caused when the husband wanted to exert some control over his wife after developing the habit of staying out of her husbands home for a number of days on the pretext that she was at tending certain marriages She deserted her husband and stayed away with children ) for a period of four years She lived with her brother These defences were not rebutted again by her

According o the husband all these desertions were made by his wife unilaterally and that he did not chase her away The husband added that he expected h brother in-law to help him in the control of his wife but he did not play his expected role

The husband admitted his failure to maintein his wife during the period of her desertion because of the economic hardship

The question now is: are the grounds stated by the wife for divorce sufficoent to justify a divorce under the Dinka law?

Of course the law applicable here is the Dinka customary law be cause the parties are Dinka This is the law which is applicable according to the provisions of S5 of Civil procedure Act, 1983 That is then the general out look of the law towards marriage and divorce? The Dinka law sets a very high standard of consideration for the grant of divorce be cause the marriage must be protected since it is not only a union between the spouseds, but it has a wider scope

Like other marriages of many other African communities, the Din ka marriage is a union which extends to the relatives of the spouses

New social relations are created not only between the husband and the wife, and between the husband and the wife’s relatives on the one side and between the wife and the husbands relatives on the other side, but also in great many societies, between the relatives of the husband, and those to the wife who, on the two sides, are interested in the marriage and the children that are expected of it” (See AR Radclife Brown and D Ford In African System of kinship’ and marriages in African Law? vol 11 Frank Cass London 1970 See also’ customary Law of the Dinka People of the Sudan by John Wuol Makec, Afro world Pub co London(1988) PP54 – 57(

Further, marriage creates mutual rights on both sides which are up set or threat when someone calls for divorce or break - down of the marriage As a result of these mutual acquired rights and the wide scope of social relationship created through marriage, the institution of divorce or ‘Puok-ruai’ is viewed as some danger that undermines the existence of the Society Divorce creates a kind of lamentation to those who are affected  (customary Law of Dinka PeopleSupra P 81)

Since the law is admant about the preservation of the marriage un ion, the procedure in a divorce suit is often very flexible The parties may even be required by the Court to explore first that extra-judicial settlement of the dispute before they come to the Court, if they did not follow this procedure before Mediators who want to save the marriage from breaking down may call the parties on both sides to discuss their dispute out side the court and reach a compromise The relatives of the spouses, if they are involved, do not rush to take judicial proceedings unless their at tempts to reach amicable compronise outside the Court have totally failed But the extra-Judicial settlement is not an imperatwe legal step to be followed by the parties

However it is a procedure, which is persuasive on the Court - if it had been followed and failed - to grant divorce since the failure of the mediators to achieve a compromise between the Parties is a manifestation of the partie’s (ie spouses and their relatives on both sides) strong determination to terminate the marriage

In the case before us, this extra-judicial procedure had not been accomplished The close relatives, who should also be parties to a divorce suit, were not involved It is not even clear whether some of them are aware of the case The parents of the girl who conducted the marriage in Bor in 1984 seem to be unaware These facts raise a hope that if the parents on both sides were involved or made aware of this case they could be able to diffuse the situation or save the marriage When the court considers whether to grant divorce or not, there are a number of grounds which will justify its grant if their existence is established One of these grounds is the serious deterioration of the marriage relationship between the spouses or between One spouse and his or her relatives on the other side The general rule is that the court grants divorce where it has come to the conclusion that the marriage is irretrievably broken down: that ishas reached a stage beyond repair A marriage reaches this stage when the spouses together with their close relatives are all convinced that the manage must break up

But despite the strength of the ground or grounds for divorce, the court still has a wide discretion to grant divorce or refuse ii This discretion arises from the existence of certain important social factors One of these factors is where the marriage has sufficiently achieved One of its main objectives Which is the procreation of children (See paral3 (b) In Customart Law of the Dinka People of Sudan’ (Supra)at P611) This objective is achieved where the spouses have begotten sufficient number o children during their union What is a sufficient number of children is left to the court to determine

In the case before us, the spouses begot five (5) children Unfortunately the nature removed there and two are still alive and there is still a hope that more children could be born if the marriage continues to survive In my view, the marriage has achieved its main objective

The second other social ground of consideration is the effect of divorce on the children of the spouses who have been divorced children enjoy a noble, social status or moral prestige when their parents have managed to live successfully up to their old age in a matrimonial home A divorcee or a man who frequently divorces his wives is looked at with disgrace This status of the parents who are divorced adversely affects the children Even the future marriage of daughters is likely to be jeopardised or diminished as people fear that such daughters night have inherited the character of their mother for which she cannot live to the end with one man

In the case before us there are two children and the eldest is 13 years she is left with few years to be eligible for marriage The other one is 12 years old The law is bent towards the protection of their social stat us by preventing the break up of the marriage unless it has become practically impossible to continue to exist

Further, the age or length of marriage also diminishes the chances for a grant of divorce, the Court cannot grant a divorce between the par ties who have reached the old age or the middle age That means where the marriage has subsisted for a long period no good can be achieved by granting divorce Grant of divorce, presupposes that the divorcee is likely to be subsequently married by another man and they will be able to bear children When A divorce is granted between the old or fairly old people the divorcee will not be married again If she is any way married the chance of begetting children becomes a rare expectation The law also considers that people who have managed to remain united for many years are already successful and their union be must protected

The parties to the marriage in the case before us were married in 1984 from that time up to now it is 14 years It is not a short period al though it has been tainted with disharmony of relationship

The other main consideration where the court may exercise its discretion to refuse the call for divorce is where the ground for divorce is based on trivial grounds

In the case before us, the husband’s reply has, in my view, shown that the wife’s complaint or call for divorce is based on trivial grounds

It has been shown that one of the causes of quarrels between the parties is the attempt made by the husband to exert an effective control over his sister in-law She had the habit of going out from home freely and returned to the house late at nights His wife did not want him to blame her sister on this ground This excessive freedom resulted to her impregnation by an unknown person But while the wife did not want her husband to control her sister’ she did not also want him to control her specially during the hours when the husband is at work

This attitude of the wife is contrary to the Dinka way of life Normally, the husband is the head of the family Every body is under his control except his parents or the parents of his wife, if they live with them The relatives of the wife are under his control A younger sister-in- law like the ‘one in consideration is treated like his daughter If he fails to control her effectively he will be seriously blamed by his in laws and the members of the public For this reason his wife was wrong to prevent her husband from exercising his rightful responsibility Any quarrel arising from this factor cannot convince the Court to grant divorce It was to the interest of the wife and her relatives that her husband should protect the modesty of her younger sister

The other main source of quarrels which led to the call for divorce is the attempt made by the husband to question his wife’s movements Normally of course a woman has the liberty of movement and she is the best protector of her own modesty But this liberty does not eliminate her husband’s overall control over her and over the whole family There is no evidence, however, that the husband was exercising control of the wife It appears any way that the wife is somewhat irritable or very emotional in deed When she was asked why she stayed long in the neighbour’s house she decided emotionally to commit suicide and attempted to set herself on fire in the latrine When she was saved she descrted her husband’s home and stayed with her brother for a period of four years

According to the husband she had never on any one occasion been chased away from home, by him She was always the one to take a unilateral decision to desert the house after causing a quarrel on a trivial affair

In conclusion, I agree with the courts below that these grounds do not justify grant of divorce:

Further, the failure on the part of the husband to maintain her is her own responsibility She unilaterally deserted her husband and came to live with her brother Under the Dinka law, the responsibility for maintenance had shifted to her brother If she wants to be maintained she must come home Her stay in her brother’s house was not imposed on her by the husband

On all these founds this objection must be summarily dismissed

with the costs

HAIDER MUSTAFA HAMAD

1861997

I concur

ALl YOUSIF AL WALl

2461997

I concur