IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY MATRIMONIAL CAUSE NO 32 OF 2014 BETWEEN ATUWEMI TUPOCHIRE PHIRI--- AND DAN IAN PHIRI---- --RESPONDENT CORAM: HON. JUSTICE M.C.C. MKANDAWIRE Felista Kilembe, for petitioner Respondent, Present, unrepresented Mrs Namagonya, Court Reporter Itai, Official Interpreter JUDGMENT The petitioner Atuwemi Tupochire Phiri prays for dissolution of her marriage to the respondent Dan lan Phiri on the ground that the respondent has since the celebration of their marriage treated the petitioner with cruelty. The respondent did not file an acknowledgement and reply to the petition hence the Registrar had certified the matter as undefended. However on the day of hearing, the respondent showed up and informed the court that he had come to the court to hear everything from the petitioner. He emphasized that he had not been cruel to his dear wife and that he still loved her as his wife. He however said that he had no objections for the matter to proceed for hearing. | therefore ordered that weproceed with the case and that the respondent be afforded an opportunity to cross-examine the petitioner and if he so desired, that the respondent should give his evidence in defence. The first thing to be ascertained by the court in matters of this nature is whether the court has jurisdiction to hear the matter. Under Section 2 of the Divorce Act, the court has the jurisdiction to hear the petition only if the petitioner is domiciled in Malawi at the time the petition is presented, or that the marriage was solemnized in Malawi. From the facts of the case, the petitioner, a Malawian citizen, is domiciled in Malawi and she has continuously lived in Malawi since birth. Furthermore, the petitioner's marriage was solemnized in Malawi at the office of the District Commissioner in Lilongwe, hence this court has the jurisdiction to entertain and decide on this matter. The petitioner was the only witness for her case. Her evidence was contained in her written witness statement and also from her oral testimony. The Petitioner and the respondent got married on 21% December 2007. Their marriage was solemnized at the office of the District Commissioner in Lilongwe. The two cohabited in areas 11 and 14 in the city of Lilongwe. They have two children a girl aged 7 and a boy aged 6. In 2009, two years after getting married, the respondent developed serious alcohol problems. This problem led to the respondent having accidents with the family car. He even reached a point when he could not recollect where he had parked the car. The respondent had numerous debts and at one point, he had incurred a debt of Mk90,000 because of his reckless drinking at a drinking joint at capital city motel. The petitioner said that she had to settle the bill in order to avert a law suit against the respondent, which could also have embarrassed her. In 2014, the respondent turned up very drunk at a cousin’s funeral. As the petitioner was also present at this funeral, she was extremely embarrassed. On several occasions, the respondent could go in drinking places and the petitioner had to follow him and collect him for his safety but at very awkward times at night and this risked her life. At times, the respondent could disappear with the petitioner's official motor vehicle without her permission and knowledge. This would often leave her in fear, anxiety and stress not knowing what would happen to the car which would likely affect her employment. 2The respondent she stated did not care for her welfare. She gave an example of an incident that took place in October 2012. The petitioner had just been discharged from the hospital after undergoing an operation. Instead of staying with her at home, the respondent went on a drinking spree without considering her health. Due to the excessive drinking by the respondent, the petitioner and the children lived very dejected and miserable lives as the respondent did not pay any attention to the family. Apart from being a drunkard, the petitioner also described the respondent as a violent person. She gave several examples of his propensity towards violence. In December 2012, she stated that the respondent had assaulted her up to the point of breaking her eye glasses. The reason for the assault being that she had left to attend a wedding for her cousin in Blantyre. The respondent ordered her to return on her way to Blantyre. When she returned back, hell broke loose and her glasses were smashed. The respondent's parents came to intervene but the respondent even assaulted his own mother by throwing her to the floor. After this incident, the two separated. The respondent went to leave with his parents where he is up to now. She continued staying at area 14 up to now. She hoped that the respondent would change but nothing has changed, In June 2014, the respondent visited her place and he jumped over the fence. Fortunately, she was not at the house. Whilst on separation, the respondent has made and sent messages to her threatening her that he would one day hurt her. The last message was sent to her on 9"" October 2014. The petitioner also told the court that since their marriage, the respondent has never worked. She bought a truck for him to be running transport business but he has never shown her the proceeds from that business. As a result of all this, the petitioner has been the bread winner of the house. She described the respondent as a very irresponsible father who cannot be entrusted with the custody of the children. The respondent defended himself. He informed the court that after their marriage in 2007, all was well. Problems however started when he had discovered a message on the cell phone of his wife from a certain man. The message fromthis person was praising her for being good in bed. He however forgave her. In 2012, he discovered that the petitioner was still in love with the same man. This led to a very hot argument in the house and he decided to vacate the matrimonial home and went to stay with his parents. In 2013, marriage advocates from both sides tried to reconcile them, but he discovered that the petitioner was cohabiting with this man at the matrimonial house. When cross-examined by counsel, the respondent said that he found solace in alcohol because of the frustration he had due to the conduct of the petitioner when he discovered that she was cheating on him. The respondent invited his own father as a witness. The father stated that the problems between the two started in 2012. According to the father, the cause of the problem was not well known to him. But it used to be pronounced whenever the respondent was drunk. It was also his evidence that as a family, they have had no real problems with the respondent. He however confessed that his son can at times be violent but that he loves his children so much. He explained that one day, the petitioner called him and complained that the respondent was violent and that if he continued, she would stab him. That amazed him as the petitioner had never produced such words since the two got married. He thus sensed danger and he immediately went to collect the respondent to his house so that he should avert the calamity that was to follow. After some days, he advised the respondent to return to their matrimonial home, but that he should behave Surprisingly, he later discovered that it was actually the petitioner who was now becoming violent. He thus decided to pick the respondent to stay with him at the house and since then, the respondent has been staying with him. It was further his evidence that he discovered that the petitioner was cohabiting with a man at the matrimonial house at area 14. As already pointed out, the petitioner's ground for divorce is cruelty. Cruelty as a ground for divorce in Section 5 of the Divorce Act is established once there is evidence of conduct of such a character as to cause danger to life or limb or to give rise to a reasonable apprehension of such danger. Thus actions or words whether actual or physical directed at the petitioner may be cruelty even though there is no intention to injure.It is clear from the evidence on record that since 2009, the respondent has treated the petitioner with cruelty. There are several instances cited by the petitioner which demonstrate the anxiety, distress and embarrassments that the petitioner has gone through. All these instances indeed fit within the definition or description of cruelty. The respondent has indeed subjected the petitioner to acute mental anguish. Not only that, the respondent had reached a stage where he physically assaulted the petitioner by even breaking her eye glasses and even assaulting his own mother in front of the petitioner. The respondent has on divers occasions sent threatening messages to the petitioner through her cell phone. During cross-examination, the respondent did not challenge this evidence. All he said was that because the petitioner was in love with a certain man, he was frustrated, If indeed the petitioner was going about with this man who was praising her to be excellent in bed, which no spouse can be happy with, one would have expected the respondent to have cross-petitioned on the ground of adultery. The evidence of the father of the respondent also confirmed the fact that the respondent can be violent. That said volumes of things for the respondent. The father also confirmed that the respondent has a terrible alcohol problem. He did not however say if the petitioner had a particular problem which could have contributed to the problem herein. He however mentioned that he later on discovered that the petitioner was the one becoming violent towards the respondent. | however suggest that the petitioner's behavior might have been a reflex action of the trauma that she had undergone as a result of the behavior of the respondent which behavior the petitioner has pretended to withstand all these years they were in marriage. | am therefore satisfied that the allegation of cruelty has been proved. There appearing to be no bar to my granting the petitioner the relief she seeks, | pronounce a decree nisi. | now turn to the issue of custody of children. It is on record that the respondent has no objection for the petitioner to be granted custody of the two children. Having listened to the evidence from both parties, | also came to the conclusion that it would be in the best interest of the children to have custody of the childrenawarded to the petitioner. | therefore order that the petitioner should have custody of both children. The respondent should be allowed unhindered access to the children. Coming to the issue of maintenance for the children, | have taken into account that the evidence on record was not clear as to how much the respondent makes ‘on his truck business. | would therefore not be in a hurry to make any order on this. | therefore defer this matter for proper assessment of the respondent's means of income to a date to be fixed. | award costs of these proceedings to the petitioner. MADE THIS. DAY OF JULY 2015 AT LILONGWE M.C.C. MKANDAWIRE JUDGE