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    1992 ZMHC 3

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    Angel Moonga
    The key points are: [1] The parties secretly married but later discovered they were blood cousins, which is prohibited by law. They did not consummate the marriage. [2] Marriages within prohibited degrees of consanguinity (blood relation) are automatically void from the beginning, regardless of consummation. [3] The court found the parties were blood cousins, which is a prohibited relationship, and declared the marriage null and void from the start.

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    1992 ZMHC 3

    Uploaded by

    Angel Moonga
    23 views2 pages
    The key points are: [1] The parties secretly married but later discovered they were blood cousins, which is prohibited by law. They did not consummate the marriage. [2] Marriages within prohibited degrees of consanguinity (blood relation) are automatically void from the beginning, regardless of consummation. [3] The court found the parties were blood cousins, which is a prohibited relationship, and declared the marriage null and void from the start.

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    1992-zmhc-3 (1)

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    The key points are: [1] The parties secretly married but later discovered they were blood cousins, which is prohibited by law. They did not consummate the marriage. [2] Marriages within prohibited degrees of consanguinity (blood relation) are automatically void from the beginning, regardless of consummation. [3] The court found the parties were blood cousins, which is a prohibited relationship, and declared the marriage null and void from the start.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    23 views2 pages

    1992 ZMHC 3

    Uploaded by

    Angel Moonga
    The key points are: [1] The parties secretly married but later discovered they were blood cousins, which is prohibited by law. They did not consummate the marriage. [2] Marriages within prohibited degrees of consanguinity (blood relation) are automatically void from the beginning, regardless of consummation. [3] The court found the parties were blood cousins, which is a prohibited relationship, and declared the marriage null and void from the start.

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    © All Rights Reserved
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    HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.

    HIGH COURT MUZYAMBA,


    W.M. , J.
    14TH JULY, 1992.
    1992/HP/D/28

    Flynote

    Nullification of marriage - Prohibited degrees of consanguinity - Where parties to the


    marriage are blood cousins - As a basis for nullification
    Nullification of marriage - Non consumation of the marriage - As a basis for nullification

    Headnote

    The parties secretly went through a ceremony of marriage at the office of the Registrar of
    Marriages, Lusaka. After marriage they discovered that they were blood cousins. As a result
    they never cohabited and the marriage was never consummated. They filed an undefended
    petition for nullification of the marriage.

    Held:
    (i) Where marriage takes place within the prohibited degrees of consanguinity, it is
    immaterial whether or not the marriage was consummated. It is nevertheless void ab initio

    (ii) The parties are blood cousins and therefore fall within the prohibited degrees of
    relationship and should not have contracts the marriage.

    For the Petitioner: M. Sikatana, Veritas Chambers


    For the Respondent: Nil

    Judgment

    This is an undefended petition for nullification of marriage between the parties

    The evidence in support of the petition is that on 12th October 1990, the parties secretly
    went through a ceremony of marriage at the office of the Registrar of Marriages, Lusaka.
    After marriage they discovered that they were blood cousins.

    As a result they never cohabited and the marriage was never consummated.

    Paragraph 8 of the petition reads:

    "8. Such non-consumation is due to the fact that immediately after the said ceremony both
    the Petitioner and the Respondent discovered that their biological relationship forbade them
    from ever getting married as they are under the Marriage Act 1949 of England which is
    applicable to Zambia under Section 32 of the Laws of Zambia, both the Petitioner and the
    Respondent are within the prohibited degree of consanguinity."
    It would appear from this paragraph that the ground relied upon for nullification of the
    marriage is non-consummation of the marriage due to the fact that the parties are related
    by blood.

    Sections 11 subsection (1) (a) (i) and 12 sub-sections (a) and (b) of the Matrimonial Causes
    Act, 1973, provide:-

    "11.1 A marriage celebrated after 31st July, 1971 shall be void on the following grounds
    only that is to say:

    (a) that it is not a valid marriage under the provisions of the Marriages Acts 1949 to 1970
    that is to say where :

    (i) the parties are within the prohibited degrees of relationship.

    12. a marriage celebrated after 31st July, 1971 shall be voidable on the following grounds
    only, that is to say -

    (a) that the marriage has not been consummated owing to the capacity of either party
    to consummate it;

    (b) that the marriage has not been consumated owing to the willful refusal of the
    respondent to consummate it."

    It is quite clear from the above sections that marriage within the prohibited degrees of
    relationship and non-consummation of marriage are two distinct grounds for nullification of
    marriage. Marriage within the prohibited degrees of relationship renders the marriage void
    ab intio while non-consummation renders the marriage voidable, It would therefore appear
    to me that where marriage takes place within the prohibited degrees of relationship, it is
    immaterial whether or not the marriage was consummated. It is nevertheless void ab initio
    and there is no need therefore, as in the instance case, to plead non-consummation as well.

    Turning to evidence, the Court is satisfied that the parties are blood cousins and therefore
    fall within the prohibited degrees of relationship and should not have contract the marriage.
    In that event the marriage is declared null and void ab initio.

    For the purposes of making the decree of nullity absolute the Court makes a declaration
    under section 41 subsections (1)(a) of the said Matrimonial Causes Act, that it is satisfied
    that there are no children of the family to whom this section applies.

    There will be no order for costs. Petition successful, Marriage nullified.

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