HH 147-13

1
HH 147//2013
HC 13638/2012
JOSEPH CHAZIREMUNHU
versus
MELIN CHAZIREMUNHU nee MADZIVANYIKA.
HIGH COURT OF ZIMBABWE

UCHENA J
HARARE 6 and 10 May 2013
Civil Trial
Plaintiff in Person
Defendant in Person.
Uchena J: The plaintiff and the defendant married each other in 1999 in
terms of customary law. They upgraded their marriage to a civil one in terms of the
Marriage Act [Cap 5:11] on 25 April 2004. Their marriage was blessed with a daughter
Tatenda born on 14 March 2000.
When this case appeared before the pre trial conference judge it settled on the
issues of custody, maintenance for the minor child and the defendant, as well as on the
distribution of their movable property. The only issue which remained in dispute is the
irretrievable break down of their marriage. The plaintiff says their marriage has
irretrievably broken down. The defendant says it has not and that if they are given time,
there are prospects of a reconciliation. The case was fast tracked to my court for the
determination of this sole issue. The sole issue I have to determine is whether the
marriage has irretrievably broken down.
The parties had marital problems soon after the inception of their marriage. The
defendant did not regularly afford the plaintiff his conjugal rights. He initially understood
her as there was a medical problem. He however later got the impression that the
defendant was manipulating the medical problem to deny him sexual pleasure. He formed
this view from the plaintiff’s condition dramatically changing for the worse whenever he
wanted to exercise his conjugal rights. He complained to the defendant’s aunt, the
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defendant’s sister and finally to the defendant’s mother. There was no change. The
problem was compounded by the defendant staying in South Africa between 2007 and
2012. She acquired South African permanent residence. The plaintiff wanted her to come
back home. She resisted him. He said this traumatized him leading to his loosing love and
affection for her. He also told the court that he wanted a second child, but the defendant
took two consecutive five year no plant contraceptives without his consent. In 2011 he
threatened her with divorce when she refused to come back home. She told him to go
ahead. He pondered on these things till he decided to issue divorce summons in
November 2012. He lured the defendant back home where she was served with the
summons a day after her arrival.
In her evidence the defendant confirmed that they had settled on all other aspects
of the divorce except that their marriage had irretrievably broken down. She said she
believes the plaintiff still loves her, as he paid the balance of her lobola to her parents in
October 2012. She said this is an indication that it is not all over. She also said he did not
during their marriage speak to her in a harsh manner, but was always showing generosity
and love. He would send her money to supplement her little income in South Africa.
Whenever she needed large sums of money he would give it to her. She said he never
rebuked her to warn her that their marriage was in danger. She therefore strenuously
resisted the granting of a divorce order and asked for time to mend whatever the plaintiff
did not like about her character.
On the issue of denying the plaintiff conjugal rights she said it was not deliberate
but she suffered a medical condition which caused her pain whenever they had sex. She
however said she has now been cured of that medical condition. On her refusal to have
children she said it was because she started having that medical condition during her
pregnancy for their child Tatenda. The problem continued till recently.
In cross examining the defendant the plaintiff put it to her that he is not a violent
person and does not believe in harassing others. The defendant agreed that that was the
plaintiff’s character. He put it to her that he has lost all feelings for her to the extent that
even when she undress before him he feels nothing. The defendant pleaded for time to
mend her ways as he had not rebuked her to warn her of a possible divorce. He put it to
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her that he paid the balance of lobola so that they could divorce amicably, having paid all
he owed to her parents.
The irretrievable breakdown of a marriage need not be accepted by both parties
for an order of divorce to be granted. It is enough if the marriage has irretrievably broken
down in the view of one of the parties. See the case of Kumirai v Kumirai 2006(1) ZLR
134 (H) at page 136 B-D. Marriage can only work if both parties are willing to continue
with the relationship.
In this case the plaintiff’s conduct, calls for closer scrutiny to determine if he has
really lost love and affection for the defendant. He has for many years been defied by his
wife. He had to seek intervention from the defendant’s aunt, sister and mother. He
threatened defendant with divorce in 2011. The defendant dared him. He eventually
tricked her to come home so she could be served with the divorce summons. His good
character may have deceived the defendant to believing that all was well. She said he
send her a good message before she left South Africa. He received her at Road Port, and
drove her to Mbare Market where he bought her mangoes, her favourate fruit. He
remained considerate to the end. Is that a sign of continuing love?. He while cross
examining the defendant said to him love is about feelings and not the giving of material
things. That may be so but normally giving is a sign of love. In his case it may not be a
conclusive sign of love as he continued in his giving even when he had issued summons.
If his giving was for love I see no reason why he would seek a divorce in spite of the
good things he continued to do for the defendant and the defendant’s assurance that her
medical condition has been cured and is willing to change to save the marriage. I am
satisfied the plaintiff has lost love and affection for the defendant. Their marriage has
therefore irretrievably broken down.
The defendant’s plea for time to mend her ways to win the plaintiff back has no
merit. She was aware of his desperation over the years when she denied him sex and
stayed away from him. She was aware he had to seek help from her aunt, sister and
mother. It is taboo for a son in – law to discuss bedroom matters with his mother in law.
This must have rung warning bells in the defendant’s mind. She ignored all this to her
peril. He even threatened her with divorce in 2011 and she dared him He then hoped she
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would take the issues of their marriage seriously but she did not. Her evidence that she
did not receive any rebuke during the marriage is therefore not true.
There are no reasonable prospects of the parties reconciling. I therefore can not
invoke the provisions of section 5 (3) of the Matrimonial causes Act [Cap 5:13]. Section
5 (3) provides as follows;
“(3) If it appears to an appropriate court that there is a reasonable possibility that
the parties may become reconciled through marriage counsel, treatment or
reflection, the court may postpone the proceedings to enable the parties to attempt
a reconciliation.”
It is only when there is a reasonable possibility of reconciliation when a divorce case can
be postponed for that purpose. Reasonable prospects are indicated by the willingness of
both parties to reconcile after the issuance of a summons. The plaintiff has remained
resolute in his pursuit for divorce since he issued summons. He is entitled to the order he
seeks.
In the result it is ordered that;
1. That a decree of divorce be and is hereby granted.
2. That custody of the minor child Tatenda Chaziremunhu be awarded to the
defendant with the plaintiff being granted access during every alternate school
and public holidays.
3. That the plaintiff shall maintain the minor child Tatenda Chaziremunhu born on
14 March 2000, at the rate of US$100-00 per month until she attains the age of
majority or becomes self supporting whichever occurs earlier.
4. That the plaintiff shall maintain the defendant at the rate of US$150-00 per month
until she dies or remarries.
5. The partie’s movable property be distributed in terms of paragraph 9 of the
plaintiff’s declaration.
6. Each party shall bear his or her own costs.
Both parties appeared in person.

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HIGH COURT OF ZIMBABWE

Both parties appeared in person.

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