Mulundika v Mulundika [1991] ZMHC 10 (1 August 1991)

HIGH COURT

BWEUPE, B.K., J

31ST JULY, 1991 AND 2ND AUGUST, 1991.

Divorce - Defended petition - Irretrievable breakdown of marriage - Test to be applied

The petitioner and respondent were married for several years. During this time, the petitioner had extra marital affairs with other women and had three children out of wedlock. Consequently, the respondent started drinking and the petitioner claimed his wife's drinking problem became excessive and intolerable. The petitioner applied for the marriage to be dissolved by the High Court.

Held:

(i) The behaviour of the Respondent is the important issue, and the fact that the Petitioner finds it unbearable to live with the Respondent does not, of itself, permit a decree to be granted.

(ii) The relevant time at which irretrievable break-down must be established is the time of the hearing of the petition

(iii) The test to be applied in determining the behaviour of the respondent is that he must behave in such a way that the Petitioner cannot reasonably be expected to live with the Respondent

(iv) The Petitioner has not adduced sufficient evidence of the Respondent's behaviour either in its cumulative effect or otherwise to prove his case that the Respondent has behaved in such a way that he can not be expected to live with her and that the marriage has broken down irretrievably

For the Petitioner: Mr. R.M. Simeza of R.M. Chongwe & Company

For the Respondent: Mr.H.H. Njobvu of H.H. Njobvu & Company and

Mr. E. Mwansa of Jacques & Partners

BWEUPE, B.K., J.: delivered the judgment of the court.

This is a defended Petition for divorce brought by a husband on the grounds that the marriage has irretrievably broken down and that his wife's conduct has been such that he cannot reasonably be expected to continue to live with her.

The Petition was contested, an answer being filed in which the Respondent resisted the prayer for dissolution of marriage.

The parties were married on the November 22, 1980 and both the Petitioner and the Respondent have cohabited at various places until finally at 10 Dunduza Chisidza Crescent, Long Acres, Lusaka. Both are Zambian citizens and are domiciled in Zambia. There are now living three children of the marriage, the last being born on April 15, 1987.

The Petitioner was the Managing Director of Zambia Airways Corporation Ltd. and the Respondent, who is now a full time housewife, was formerly an Air Hostess.

The evidence of the Petitioner was that he is a professional Pilot currently not employed. The Respondent is a trained Air Hostess and unemployed at the moment. He got married to the Respondent on November 22, 1980. They have three living children, Mbeza Mulundika, Sasha Mulundika and Mukuni Mulundika born on May, 1978, July 8 1982 and April 15, 1987 respectively. He said the marriage has broken down irretrievably because of the behaviour of his wife. He itemised the particulars of behaviour by the Respondent as (a) Respondent has been consistently petty, inconsiderate and quarrelsome and infatuated by jealousy (b) Respondent hates receiving visitors in the matrimonial home (c) the Respondent is guilty of inconsistency and rudeness towards the Petitioner and the Petitioner's brother namely Sandford Mulundika (d) until recently the Respondent has been a person of ungoverned temper brought upon her by excessive alcoholic drinking.

Elaborating on the allegations the Petitioner said that as a professional Pilot he used to fly for Zambia Airways. During the course of his duties, in his absence out of the country he used to receive complaints from various members of his family e.g. his parents, sisters and brothers that the Respondent subjected them to a lot of abuse and sometimes they were completely ignored and they could go without food in the house. He said about three meetings which were held to counsel her did not bear fruits. At one time when his father was subjected to some degree of abuse, his father cautioned her against that kind of behavior as he (father) took the Respondent as his daughter. He said his mother stopped visiting them because of the behaviour.

The Petitioner talked of the Respondent's excessive drinking. He said the Respondent never drank in moderation and that the abuses and lapses he talked about were multiplied ten fold when she was under the influence of liquor. He said when he knew his wife, she was drinking but being in love he thought it was social drinking and did not realise that the problem would degenerate into a serious obstacle in their marriage. Her drinking led her to be admitted for approximately a fortnight at Chainama Hills Mental Hospital where she was attended to try and impair her drinking problem. He said this was after an experience he went through with her when she travelled with him to Rome in June of 1986 soon after he was appointed Managing Director. He said his wife broke down in Florence in Italy. While he was having his dinner with some colleagues his Manager called him who said his (Petitioner's) wife was sick and when he went upstairs to his suite he found her there in the company of the wife of Captain Mohammed who said his wife started yelling on the bus shouting things that were totally irrelevant and started wanting to take off her clothes so they returned her to the hotel. He said his wife could not recognise him when he went into the room. He could not leave her and stayed three nights without sleep. He then called in a car which took them to catch a flight back to Zambia. On the way, he had to hold her firmly because throughout she was threatening to run away or jump out of the car. He said when they checked into the hotel he lost her one night because the pressure was starting to turn on him he dozed off as this was three nights without sleep. She ran out of the room scantly dressed and she ran to the Waiter. He heard some commotion and he noticed she had left the room and he found her in the corridor hardly dressed. He said he brought her to the room. Meanwhile his Manager arranged for him to take her to a Private Hospital where they spoke English. The Doctor examined her and shook his head and said "my friend you have a serious problem in your head. There is nothing I can do." She was given two powerful injections to calm her down in the morning and two more injections before she got on the flight as it was feared that she might cause a dangerous scene aboard. They arrived in Zambia and after some discussion with her relatives he took her to Chainama Hills Mental Hospital where she was admitted. He said the medical report stated that she suffered from what they called "Delirium" which meant that her brain over the years had got accustomed to a certain level of alcohol. (N.B. Medical evidence was required to explain what "delirium" meant). He said the few days they had been in Italy she had no access to alcohol and she degenerated into this state of delirium.

He said the Respondent was jealous. She did not believe that he would be with someone of the opposite sex without some intimacy taking place and it was driving him mad because there was no single day that went by when he was not subjected to some explanations. If he greeted somebody that he knew he had to explain in chosen words. Some of his sister-in-laws were not trusted with him in so far as she was concerned. She was just hysterical about that.

He said the relationship between the respondent and his brother Sandford was, to begin with, an excellent one. His brother Sandford refused to tell him anything about the abuses he was subjected to by the Respondent. Sandford continued to visit them despite the fact that he was abused. He called his wife as one who can lie and lie. Sandford does visit them but not the same level of visiting as there used to be. He can now come if there is a problem in the house say when a child is ill but he does not visit socially.

Asked about the allegations in the Respondent's answer the Petitioner admitted that during the subsistence of their marriage he had been going out with other women and has had three children out of wedlock. He admitted that he started going out with Tulile Machila in 1982. He also admitted he currently goes out with Rachael Sikazwe with whom he has two children. He said the Respondent knows very well about these love affairs with Tulile Machila and Rachael Sikazwe both Air Hostesses of Zambia Airways. He started going out with Tulile in 1982 when the marriage with the Respondent became sour. He has never told his wife since that time that he loved her and in fact he had told her that this rubbish is not working and that the best thing to do is to end it as amicably as possible. In fact at the last meeting he had with her relatives he told them very categorically to go with her as he could not be expected to live with her. He denied he was being enticed away by Rachael Sikazwe and said that if the relationship with Rachael broke that in itself would not save this marriage. He said at his 43 years he knew what he wanted. He loved his wife and went through a lot of abuse which he forgave to sustain his wife. He initiated family meetings to try and resolve the problems, she did not want those meetings because she said he was bringing other people into their marriage. He had never told her that he loved her and on contrary he told her to leave his house. He said that even if he broke his relationship with Mrs. Rachael Sikazwe this marriage would never be the same again. He said in his petition he used the word "Zombie" because what alcohol did to the Respondent was extremely sad. He used the word Zombie because if she had a drink that is what she exactly turned into "Zombie" means a corpse said to be revived by witchcraft). She would crawl and crawl, no speaking. He said alcohol slowly destroyed her to the point where she had to be hospitalised at Chainama Mental Hospital. He denied that she was hospitalised because of jaundice. He concluded by saying that he no longer loves his wife and there is nothing that will change that position. He prays for dissolution of marriage and custody of children.

Under cross-examination he said he was married to the Respondent in 1980 but the problem with his wife started soon after that but things came to breaking point about 1984 although the congestion started almost immediately. He said he started having extra marital relationship with Miss Machila in 1982; he admitted that some married individuals don't take lightly on their partners having extra-marital affairs; he denied that his wife stopped work as Air Hostess at his insistence. He said that when his relatives visited them say his parents, sisters and brothers they used to ask for food or water; that the Respondent used to pace up and down and making unfriendly signs "Muix" while his mother or father was sitting or beat up the child mercilessly in front of his parents; he admitted he was keeping various brands of alcohol in the house because he had a lot of people visiting him but he denied that he had encouraged her to drink; he admitted he took his wife to Chainama Mental Hospital without her consent but denied he bundled her into the car by force; he admitted he left out the Rome incident in his Petition; he admitted he has a girl-friend Rachael Sikazwe with whom he has three children during the existence of this marriage; he admitted he is still staying in the same house No. 10 Dunduza Chisidza Crescent with the Respondent and that for his own safety he does not eat in the house as he fears the Respondent might poison him. He admitted some of his relatives know about his extra marital affair with Rachael Sikawe; he said it was a complete fabrication that at Chainama the Respondent was found suffering from jaundice. He admitted Tulile Machila was his girl-friend with whom he had extra-marital affairs; that she was not a family friend; that the Respondent was behaving very badly to his mother, father , brother and sisters to the extent that she could not give them food or gave them food only when they begged for it; that he had fights with the Respondent due to her unreasonableness; that the Respondent was aware of his extra-marital relationships with Tulile Machila and Rachael Sikazwe ; that the fights arose totally on different things and not on his extra-marital affairs; that the fights were mainly concerned with the Respondent's behaviour towards relations and her drinking; that although his relatives used to stay with them the Respondent did not welcome them in that they were left without eating.

PW 2, Sandford Mulundika deposed that he had been a regular visitor of the Petitioner's house who is his young brother. He has of late not been a regular visitor. He said he put a break when it became very clear that the relationship between the Respondent and the Petitioner was deteriorating because of certain things which were beginning, mistreating visitors at home and that sort of things. He said that he was not a witness to incidents but that sometimes he was a victim. He said that one of the major problem was that the Respondent became moody. The Respondent would sometimes welcome him home and other times she would just open the door and ignore him. He said as he was an occupational psychologist he would not like to venture a reason but would only say that these things happen at one time or another. He began to suspect that one of the problems was drinking because he noticed that very often when she has had something she tended to sort of withdraw and she did not look herself to him. He said he would not venture to say drinking was the main source of her behaviour as she did but whenever she drunk she withdrew and sometimes in those moods she became very eratic and irritable.

Under cross-examination he denied that he was aware that his young brother soon after marriage to the Respondent began having marital affairs with other women; admitted he was aware the Petitioner has a girl-friend now; he admitted such activities of having extra marital affairs would make the Respondent moody; that he showed negative attitude towards his brother when he got involved with the other women; that during his stay at his brother's house he never went hungry and he never begged for food from the Respondent; that he did not know if any member of his family begged for food or went hungry.

The Respondent filed an answer and paragraph 9 of her answer reads:

"9 In answer to the allegations contained in the Petitioner's petition the Respondent denied paragraphs (a) (b) (c) and (d) of the allegations and says as follows:

(a) The Respondent has not been inconsiderate and quarrelsome and neither has she been infatuated by jealousy. On the contrary the Petitioner has lived a very promiscuous life and has more than three children born to him outside marriage and during the existence of this marriage.

(b) The Respondent denies that she is thrown into extreme reactions and moodiness when she sees the Petitioner in the company of one of the wives of the Petitioner's brothers. On the contrary the Respondent has all along exercised extreme restraint even when she caught the Petitioner in very comprising circumstances. For example the Petitioner commenced an extra marital affair with the Respondent's best friend, Tulile Machila. The Respondent was made aware of that affair by Captain Chansa who at the time was the fiance of the said Tulile Machila and a family friend to the Petitioner and the Responded. Captain Chansa found with the said Tulile Machila a love letter written by the Petitioner to her. Captain Chansa confronted the Petitioner in the Respondent's presence and accused the Petitioner of having an affair with Tulile Machila. The Petitioner admitted the affair. One day a well wisher telephoned the Respondent that if she went to the ZSI flats along Manchichi Road, the Respondent would find the Petitioner's car parked at the said flats and the Petitioner inside the flats where the car was parked. The Respondent in the company of the Petitioner's brother Sandford's wife, the Respondent knocked at the flat near which the Petitioner had parked the car and upon inquiry when the door was opened, the Respondent was informed that the Petitioner was hiding in the toilet and Tulile Machila was still in the bedroom. The owner of the flat forced Tulile Machila out from the bedroom and thereafter the Petitioner came out from the toilet. The Respondent accused the Petitioner and Tulile Machila of committing adultery but the Petitioner said nothing. Although the Respondent did not act in any irrational manner and restrained herself the experience left her deeply distressed and caused her to resort to alcohol.

In another incident sometime in 1986/87 the Respondent who had been informed by well-wishers that her husband, the Petitioner was having an extra marital affair with one Rachael Sikazwe, an Air Hostess whom the Respondent knew. The Respondent saw the Petitioner's vehicle parked outside Rachael Sikazwe's house in Woodlands Extension. The Respondent decided to investigate, she went and knocked at the said Rachael Sikazwe's house and Rachael Sikazwe came out. The Respondent asked Rachael Sikazwe where the Petitioner was and she said the Petitioner was in her bedroom. At that time the Petitioner came out of the house and requested the Respondent to go back to their matrimonial home promising to explain the situation later. The Respondent left quietly without any show of temper. Later that day at the matrimonial home when the Respondent requested for an explanation on the above incident the Petitioner brutally and savagely battered the Respondent. The Respondent now knows that the Petitioner has two children out of his extra marital affair with Rachael Sikazwe but has not quarreled with or acted inconsiderately towards the said Rachael Sikazwe nor indeed towards the children of the illicit affair between the Petitioner and Rachael Sikazwe Viz, Sofia (girl) and Robert (boy).

(c) The Respondent denies that she has been unfriendly to the relatives of the Petitioner and on the contrary states that the relatives of the Petitioner have always been welcome to their matrimonial home and were welcome to the Respondent's house even before the Respondent married the Petitioner. At one time the Petitioner's mother stayed in the matrimonial home for a period of more than nine months when the Petitioner was out of the country for studies. The Respondent and her mother-in-law were in complete harmony. The only relative of the Petitioner the Respondent remembers differing with is the Petitioner's sister, Marble. When the said Marble divorced her husband she and two of her children came to live with the Petitioner and the Respondent. However, whenever the Petitioner flew out of the country on duty his sister Marble would sleep out of the house. The Respondent would rebuke her for such behaviour but the said Marble would retort that the house was her brother's and she had a right to go in and out of it as she willed. The Respondent would then come and inform the Petitioner upon his return of what had transpired in his absence but the Petitioner always sided with his sister and accused the Respondent of not liking his relatives. That however did not mean that the Respondent stopped being or was unfriendly to the Petitioner's relatives. Indeed the Petitioner's brother, Sandford, the wife and children came to live with the Petitioner and the Respondent after the incident cited above, when the said Sanford was out of employment. Even as late as after the last Court adjournment of this matter the Petitioner's brother, Gannet, the Petitioner's son, John, from his first marriage and the Petitioner's uncle's child have visited the matrimonial home.

(d) The Respondent denies that she is quilty of inconsistence and rudeness to the Petitioner's brother Sandford. On the contrary it is the said Sanford who has made the life of the Respondent in the matrimonial home very unbearable in the later year of her marriage to the Petitioner. Each time the Petitioner would start an extra marital affair with another woman the said Sanford would begin to entertain that woman as if she was the Petitioner's wife and that even when the Respondent was present other relatives also began to behave in a similar manner making the Respondent look really unwanted and a stranger in her own home. This of course had a negative effect on the Respondent's relationship with the Petitioner's relatives but still the Respondent continued to look after the Petitioner's relatives.

(e) The Respondent denies that she has been a person of ungoverned temper brought upon her by excessive drinking. On the contrary the Respondent recalls that it was after discovering that the Petitioner was having an extra marital affair with the Respondent 's closest friend Tulile Machila and proving for herself when she caught the Petitioner with her in compromising circumstances with her that the Respondent went into depression and resorted to excessive drinking in an effort to try to forget the incident. The Petitioner began importing various brands of alcohol for the Respondent who at that time had stopped eating and encouraged her to drink. The situation deteriorated and the Petitioner with his brother Sandford arranged to take the Respondent to Chainama Hills Hospital lying to the hospital authorities that the Respondent was alcoholic. Upon arrival at the hospital the Respondent was put on varium and vitamin B. Complex. A friend of the Respondent at the hospital advised the Respondent to stop taking varium which was making her drousy, and to take only Vitamin B and eat a lot of food. Indeed upon Medical examination at Chainama it was discovered that the Respondent was suffering from Jaundice but did not have an alcohol problem. The Respondent was thereupon referred to the University Teaching Hospital for treatment of Jaundice. That in 1986 and the episode at Chainama took only five days since then the Respondent decided never to touch alcohol.

(f) The Respondent denies that the Petitioner has lost interest and love for the Respondent. Indeed the Petitioner and the Respondent have been cohabiting normally even as late as the last adjournment of this case. The Respondent however states that the Petitioner is being confused by Rachael Sikazwe, the woman the Petitioner has extra marital problems with and who has born him two children. The said Rachael Sikazwe has been posing as Mrs. Mulundika in public functions. For example during the AFRAA CONTEST held at Lusaka and Livingstone the said Rachael Sikazwe stood beside the Petitioner and posed as Mrs. Mulundika when the Petitioner was presenting awards to qualifying contestants at the contest. At the time the Respondent was in bed recovering from another brutal beating by the Petitioner. The Respondent believe that the Petitioner is being confused by the said Rachael Sikazwe with whom the Petitioner has had two children through his extra marital association with her. The said Rachael Sikazwe is demanding to marry the Petitioner and thus forcing the Petitioner to seek to divorce the Respondent.

The Respondent therefore prays:

(i) That the marriage should not be dissolved; as it is still subsisting.

(ii) That the Petitioner be warned of the crime of bigammy;

(iii) That the custody of children should not be granted to the Petitioner.

(iv) The costs of and incidental to this matter be for the Respondent."

In her viva voce evidence the Respondent deposed that she got married to the Petitioner in 1980 having known him since 1975. She said she had been in contact with the Petitioner's parents, uncles, brothers, sisters and grannies. The problem started after their marriage when in 1982 the Petitioner started having extra marital affair with her best and closest friend Tulile Machila and a family friend and a friend of the Petitioner. They were friends and a good friend of the Petitioner. They stayed together and made parties together most of the time, she visited Tulile's home and Tulile visited her home. She denied she was inconsiderate, quarrelsome and jealous during their period of marriage. She did not refuse visitors such as the Petitioner's relatives to their home. His relatives have always been welcome to their matrimonial home. This was so even before she got married to the Petitioner. At one time she stayed with the Petitioner's mother in their matrimonial home for a period of more than nine months when the Petitioner was out of the country for studies. She said the only Petitioner's relative she differed with was the Petitioner's sister, Marble. When Marble divorced her husband she and two of her children came to stay with them. However, whenever the Petitioner flew out of the country on duty his sister Marble would sleep out of the house. Most of the time she would rebuke her for such behaviour but the said Marble would retort that the house was her brother's house and that she had a right to go in and out of it as she willed. When the Petitioner came back from his trip she used to inform him of his sister's behaviour and what had transpired in his absence but the Petitioner always sided with his sister and accused her of not liking his relatives. She said this did not mean that she stopped being or was unfriendly to the Petitioner's relatives. Indeed the Petitioner's brother Sandford, his wife and children came to stay with them after the incident cited above when Sandford was out of the employment. She said even as late as after the last adjournment of this matter the Petitioner's brother Gannet, the Petitioner's son, John from his first marriage, and the Petitioner's uncle's child have visited the matrimonial home. She said she was not rude to the Petitioner's brother Sandford. In fact it is Standford who has made her life in the matrimonial home unbearable during the life of marriage to the Petitioner. Each time the Petitioner started an extra marital affair with another woman Stanford would begin to entertain that woman as if she was the Petitioner's wife and even when the Respondent was present other relatives also began to behave in a similar manner making her look unwanted and a stranger in her own home. This had a negative effect on her relationship with Petitioner's relatives but still she continued looking after the Petitioner's relatives. She denied she was a person of ungoverned temper brought upon her by excessive drinking. She said the Petitioner accused her of all sorts of things after she discovered that the Petitioner was having an extra marital affair with her closest friend Tulile Machila and after she caught the Petitioner with her friend in compromising circumstances with her that is when she went into a depression and resorted to excessive drinking in an effort to try to forget the incident. Then the Petitioner began importing various brands of alcohol for her. The situation deteriorated and the Petitioner with brother Sandford arranged to take her to Chainama Hills Hospital lying to the hospital authorities that she was alcoholic. Upon arrival at the hospital she was put on varium and Vitamin B. Complex. Then her friend at the hospital advised her to stop taking varium as it was making her drousy, and to take only Vitamin B and eat a lot of food. Indeed upon medical examination at Chainama it was discovered that she was suffering from Jaundice and she had no alcohol problem. She was thereafter referred to U.T.H for treatment of Jaundice. The Respondent said that apart from her sister-in-law Marble she has stayed with the Petitioner's brother Sandford for about a month and the Petitioner's son John from his first marriage and the Petitioner's uncle's child. She denied using obscene or gestures which may be interpreted to be insultive to any of the Petitioner's relatives. About the espisode in Italy she said when the Petitioner was appointed Managing Director, there was a time he was to attend a meeting organised by IATA. She went with him, got sick and did not know what had happened to her. She said according to her husband he says she was yelling on the bus shouting things and wanting to take off her clothes then they returned her to the hostels. While in the hostel her husband decided to call for a car to drive them to catch a flight back to Zambia. This was in 1986. When they arrived in Florence she was quite alright and at night they slept together and made love with her husband and everything was okay. Asked to explain why the Petitioner described her how she was literally a "Zombie", wanting to take-off the clothes and banging waiters in the corridor she said "We were two of us in the room. I don't know even now why he had to tell such a lie. What for? I would not know definitely. I could have been arrested. I don't know why he said that. I don't know. He has a reason why he had to tell that lie. She said at no time did she behave like a Zombie. Her mind was wide awake. They boarded a plane to Zambia. When they arrived in Cyprus all got out but she was told they were not getting out as the Petitioner told them that she was not alright. After sometime they left for Zambia they landed in Zambia. They found his brother Sandford and the driver at the Airport. She alighted the car and went home. At home she put her brown suitcase away and after saying "hullow! hullow!" to the children she decided to rest as she was tired. She said there was a meeting the following morning at which he narrated what had happened in Rome and the Petitioner decided to take her to Chainama. She was then taken to Chainama Hills Hospital. She said she refused to sign a document for her to be admitted into hospital but Sandford signed. She said when she was seen by the Doctor only valium was prescribed for her. She said she shared a room with a certain girl who was not as bad as some patients were. That same night at a certain time she wanted to go to the toilet as she wanted to use the toilet. In the room she saw the mad people - women. It was a sad story. They were using their urine to wash their faces and she said to herself "is that what my husband wants to do to me? Is that what he wants me to be like? He wants to mix with these mad people?" She said that when they were taking her for brain scan the following day some of the nurses who were at school with her asked her what the problem was and she told them she was not eating. They advised her not to take valium and encouraged her to take Vitamin B. Complex with a lot of food. When she was examined they found nothing wrong. After two days Dr. Harworth told her she had something wrong with the liver because she was not eating. Dr. Harworth told her to pack up and go home. He advised her to go to U.T.H to see Dr. Develia for the liver problem.. She said in July, 1986 she conceived and refused to take medicine. Asked if she had continued drinking alcohol she said: "I don't drink. The day I walked out of Chainama Hills Hospital I sat down and said, if my husband could not help me to get better, take me to a better hospital and instead to take me to a hospital here at Chainama I said nothing would help me. I turned to my Lord as my Saviour. I stopped drinking. "She said since July, 1986 she has not touched alcohol. She said that during her marriage she has never physically attacked anybody or her husband's relatives apart from fighting with her husband. Asked about the Petitioner's assertion that he has lost love with her she said : "In 1986 after the lady my friend Mrs Machila had delivered her baby Mwinga Mulundika I don't know what happened to their relationship, I only learnt that in 1988 he started having another friendship with Mrs. Sikazwe .............. My cousin later came and told me that Rachael was going about with the Petitioner.................When he came home in the evening I asked him about the affair what I was told. He said you are like that. If I greet any Airhostess you think about something like that....................I told him that I was sorry to talk about Rachael......... since he became Managing Director he used to arrive home 23:00 hours - 24:00 hours. He would hoot and if I am late to open the door, whatever he had would land in my head. Whatever time he would tell me to cook nshima ............." She said one day she found the Petitioner's car parked outside Rachael's house in Woodlands. She went to find out and she saw her husband who asked her to go back home where he would explain. When the Petitioner went to the house she was beaten up by the Petitioner. She said her husband still loves her because they have been cohabiting together and they last made love on the morning of 13th February, 1991 the day she was leaving for London. She said during this period she has seen no change with her relationship with her husband in that the Petitioner has continued to support her, buying things for her in the usual way. She said this marriage has not broken down by reasons given by her husband which are not true. She said if this marriage can be dissolved the court can only do so on the reasons she has given but she is not asking for divorce. Her prayer is that this marriage has not broken down irretrievably on his reasons.

Under cross-examination she said she believes her husband loves her because he sleeps with her and tells her he misses her; that the last time she had physical relationship with him was on 13th February 1991; that on 5th April she turned down his request to make love with her because the Petitioner was saying "let us go and make love" when their son was listening; she said the first time she heard her husband say he did not love her is when he was giving evidence in court; she described it as a lie what the Petitioner says in paragraph "D 2 of his petition that he has lost interest and love for her because the same day she received the petition he was leaving in the evening and in the morning they made love; that each time the Petitioner made love she would ask 'Are you using me or you love me?" and the words came from his mouth that "I love you"; that when she received the petition she told her lawyer that the contents of the petition were not true because they were still man and wife living in the same house, sleeping together in the same bed and loved each other; that although her husband used to drive her in a car off the Great East Road, took her out of the car, battered her out and left her for dead and came back to collect her nevertheless she still loved him for better or worse; that despite his extra marital affairs with other women she still loved him; that she had medical attention for injuries she received from her husband at U.T.H. for six weeks; that she has tolerated her husband's unfaithfulness because she had always prayed that her husband will one day come to reason and abandon Tulile and Rachael; that she continued to love and live with him because had she left only she and her children would suffer; that her husband now spends a lot of time with Mrs. Sikazwe; and asked if that is the way she would like to live for the rest of her life she replied "If it was meant that we have to be like that let it be"; that the Petitioner is already married to Rachael Sikazwe because the latter is also called "Mrs Mulundika." She said she did not come to court to seek for divorce but she came to court to answer and to give the reasons why this marriage cannot be there and not the reasons that the Petitioner has given; that she had to undergo medical treatment for alcohol; that after such treatment she has never touched alcohol since July, 1986; that the problem rising from her conduct as a result of drinking alcohol seized as at July, 1986; that she had taken to alcohol because of her husband's extra marital behaviour with Tulile and Rachael; she ended by saying that she was not seeking for divorce because she believes that the Petitioner still loves her and that his extra marital affairs which she has accepted to live with is a passing phase which should not derail their marriage.

The evidence of the Petitioner was that he was married to the Respondent on November 22, 1980 when both of them were working for Zambia Airways as Pilot and Air Hostess respectively. The marriage was moderately happy until 1982 when the relations then deteriorated because the wife started to drink and became alcoholic to the extent that she became a Zombie. In the early stages of the marriage both were working and their work took them away from home at frequent intervals. The Respondent stopped working when they had their first child. He said the Respondent has been consistently inconsiderate and quarrelsome and always infactuated by jealousy. The Respondent has during the duration of the marriage suspected any person of female sex to whom the Petitioner has been speaking to the extent that seeing the Petitioner in company with one of the wives of the Petitioner's brothers would quickly throw the Respondent into a feat of extreme reaction and moodiness. He said that the Respondent hates receiving visitors in the matrimonial home. It does not matter to her whether the visitor in the home is the parent of the Petitioner, a brother or sister or a member of the Petitioner's extended family. She was guilty of inconsistency and rudeness towards the Petitioner and the Petitioner's brother Sandford Mulundika. The Petitioner admitted that through medication at Chainama Hills Hospital she has stopped drinking alcohol. He also admitted that in 1982 he started having extra marital affairs with Tulile Machila with whom he has one child and later with Mrs. Rachael Sikazwe with whom he has two children.

The Petitioner called his elder brother Sandford as his witness. He said he was a regular visitor of his brother's home. One of the major problems he noticed was that the Respondent became moody in that sometimes she would welcome him home and other times she would just open the door and ignore him. He said he began to suspect that one of the problems was drinking because he noticed that very often when she has had something to drink she tended to sort of withdraw and she did not look herself to him, and in those moods she became very eratic and irritable. He said during his stay at his brother's home he never went hungry or begged for food from the Respondent.

This is a behaviour petition of which the test to be applied is objective as propounded in Livingstone-Stallard (1974) Fam 47 "Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties?" The question is whether it was reasonable to expect the Petitioner in this particular case to put up with the conduct of his or her spouse, bearing in mind the character of each spouse and other relevant matters. The behaviour of the Respondent is the important issue, and the fact that the Petitioner finds it unbearable to live with the Respondent does not, of itself, permit a decree to be granted. The relevant time at which irretrievable break-down must be established is the time of the hearing of the petition.

The Petitioner's allegation that his own parents, brothers, sisters or members of his extended family went hungry and begged for food from the Respondent has not been supported by evidence on record. Also not substantiated is the Petitioner's assertion that the Respondent has been consistently inconsiderate and quarrelsome and has always been infatuated by jealousy. Although the Petitioner has generalised how the Respondent was quarrelsome and infatuated by jealousy to the extent that seeing, the Petitioner in company with one of the wives of the Petitioner's brothers would quickly throw the Respondent into a feat of extreme reaction he has not mentioned any of his brothers' wives who was a victim of such behaviour. Nor did he call supporting evidence to that effect. Neither did he have support from Sandford Mulundika to the extent that she was rude to Sandford who said about the Respondent:

"I would not like to venture a reason. I would only say these things happen at one time or another. I would say I began to suspect that one of the problems was drinking because I noticed that very often when she has had something to drink she tended to sort of withdraw and she did not look herself to me and this went on for sometime and when I realised that the problem was more serious..... I told the husband that he may have the problem here ....... I would not venture to say drinking was the main source of her behaving as she did but whenever she drunk she withdrew and sometimes in those moods she became very eratic and irritable."

Sandford's evidence does not indicate that the Respondent was rude to him. The Petitioner's evidence that his relatives are not welcome in his house so as to make the Petitioner naturally feel lonely in his house has been disproved by the Respondent who gave evidence to the effect that they stayed with Sandford, his wife and children when Sandford was out of employment.

She said even as late as after the last court adjournment the Petitioner's brother Gannet, the Petitioner's son John from his first marriage and the Petitioner's uncle 's child have visited them. There has been no denial that what the Respondent said about the visit of Gannet, John and the Petitioner's uncle's child was an exaggeration. In all I find (a) - (c) of the Petitioner's petition to some great extent coloured in favour of the Petitioner. There are numerous discrepancies. Having seen the parties, however, that on the question of (a) to (c) of the Petitioner's petition I have come to the conclusion that the Respondent evidence is more credible. It is not possible to come to arrive at exact conclusions, but I consider that the truth of the matter was that this marriage was never happy since the Petitioner started having extra-marital relationship with, in the first place, Tulile and in the second place with Rachael.

I intently paid attention to the evidence of the two parties and also their demeanour. I would hasten to state that of the two spouses, the Respondent was a more credible witness than the Petitioner. Her character from the inception of their marriage is impeachable. The record indicates that her evidence is more detailed and consistent than that of the Petitioner whose evidence indeed reflected some half truths. For instance the Petitioner's evidence that his parents, brothers, or sisters who visited and stayed with him went hungry and begged for food from the Respondent was not supported by his own brother Sandford who refused to speak for other members of his family but spoke for himself that at no time did he go hungry nor begged for food during his stay at his brother's house. The Petitioner did not call any of the parents or sisters to say for themselves that they used to go hungry or begged for food.

In her answer the Respondent denied the allegations made by the Petitioner in his petition and reiterated her denials in her own evidence. I am mindful of the fact that she admitted she was treated at Chainama Hills Hospital for alcohol but she denied she degenerated into a Zombie.

In Katz v. Kartz (1972) 3 AER 219 Barker, P. had this to say:

"...............Behaviour is something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse, or a feeling that the wife is not reciprecating his love, or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct by the one which affects the other. Such conduct may take either acts or the form of an act or omission or may be a course of conduct and, in my view, it must have some reference to the marriage.

Then the question is what is the standard of the behaviour? The standard is that he must behave in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. That is the test. It is for the Judge, not the Petitioner alone, to decide whether the behaviour is sufficiently grave to fulfil that test, that is, to make it unreasonable to expect the Petitioner to endure it, to live with the Respondent. The court must consider the effect of the behaviour on the partner Petitioner and ask the question: Is it established, not that she is tired of the Respondent, or collequially, fed up with him, but, that she cannot reasonably be expected to live with him? In a sense it seems to me wrong to call it, as we are apt to do unreasonable behaviour. It is behaviour that causes the court to come to the conclusion that it is of such gravity that the Petitioner can not reasonably be expected to live with the Respondent."

The allegation that the Respondent became alcoholic to the extent that she even under went medical treatment at Chainama Hills Hospital has been admitted by the Respondent herself. She said she was driven into heavy drinking when she discovered that her husband was having extra-marital affairs with her closest friends Tulile and Rachael. She said she refrained from touching alcohol since she was discharged from Chainama. In her own words this is what she said:

"I don't drink. The day I walked out of the hospital, I sat down and said, if my husband could not help me to get better, take me to a better hospital and instead to take me to a hospital here at Chainama, I said nothing would help me. I turned to my Lord as my Saviour. I stopped drinking. Since July, 1986 I have never touched alcohol."

This case raises very sad and emotional isuses. The issue raises a Jurisdictional dichotomy and it arises in this way:-

The Petitioner has admitted that since the Respondent was treated for alcohol in July, 1986 she has not touched alcohol and the Parties have since been living together. There had been a significant change in the Respondent circumstances and attitudes and there has been a realistic prospect that she has remained free from alcohol on her release.

The following question now arises: bearing in mind the Petitioner's faults and other attributes, good and bad, and having regard to his behaviour of extra marital affairs with Tulile and Rachael during the marriage, bearing in mind the characters and difficulties of both parties, trying to be fair to both of them and expecting neither heroic virtue or selfless obligation form either, has the Respondent then behaved in such a way that the Petitioner cannot reasonably be expected to live with her?

I have not doubt in my mind that the behaviour such as frequent drunkenness as the Respondent was can be found a fact for divorce if the Petitioner can not reasonably be expected to live with the Respondent . The test to be applied is what can reasonably be expected of the Petitioner."

To quote from Ormood J. in Carew-Hunt v. Carew-Hunt (1972) Times, June 28:

"The question is not whether the Respondent has behaved unreasonably, and the court is no longer required, except marginally to pass judgment on whether a person's behaviour is right or wrong, good or bad."

The question is whether having regard to the behaviour, it is reasonable to expect the Petitioner to go on living with the Respondent. It follows that a decree will not be refused merely because the Respondent's behaviour resulted from mental illness. Thus in Katzi v. Katzi (1972) 3 ALL E.R 219, a decree was granted to a wife although his behaviour resulted from a manic depressive illness and granted to husband in Thurlow v Thurlow (1976) fam. 32 although his wife's behaviour resulted from epilepsy. The question is, of course, one of fact and degree in each individual case and due allowance must be made for the fact that the Respondent's behavour resulted from ill health, whether mental or physical. It was no doubt for this reason that a decree was refused in Richards v. Richards (1972) 3 ALL. E. R. 695 where the behaviour and illness were less severe. Where the Petitioner relies upon this fact (behaviour) but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the Petitioner and held by the court to support his allegation that fact is to be disregarded in determining whether the Petitioner cannot reasonably be expected to live with the Respondent if the length of that period or periods of life together was six months or less.

It would still be open to the court to find that despite longer periods of life together the total effect of the Respondent's behaviour during the marriage including, adultery which was no longer available was such that requirements of s. 1(2) (b) had been satisfied.

Indeed in Bradley (1973) 3 A.E.R. 750 it was held that it might be possible for a wife to obtain a decree although her family circumstances were such that she was still compelled to live with her husband and share a bed with him at the date when the petition was heard. There is no doubt that the Respondent had in the past been alcoholic induced upon herself to reduce the effect of thinking about her husband's extra marital affairs with Tulile and Rachael resulting in her negative behaviour towards her husband and that failure being due to deleterious effects of alcohol taking.

However the Respondent has completely reformed. Since July, 1986 she has not touched alcohol. The parties have been living together since July, 1986 sharing the same bed and living with other in the same household for a period of five years after the date of occurrence of the final incident of the alleged incident of degenerating into what has been termed a Zombie. The fact of living in the same household for a period in excess of of six months since the last incident of behaviour in Italy which the Petitioner relied on I am satisfied the Petitioner is capable to endure the Respondent's conduct which no longer exist.

In my judgment, therefore, I am not satisfied the Petitioner has adduced sufficient evidence of the Respondent's behaviour either in its cumulative effect or otherwise to prove his case that the Respondent has behaved in such a way that he can not be expected to live with her and that the marriage has broken down irretrievably.

On the contrary the Respondent has proved that since 1982 the Petitioner has indulged himself in extra marital affairs with Tulile Machila who has given him one child and Rachael Sikaze who has given him two children during the existence of this marriage. The Respondent is not seeking for divorce and has accepted to live that kind of life for better or for worse.

Accordingly to her she is convinced the Petitioner still loves her but only that he is being enticed by Rachael Sikazwe.

For these reasons, with great sympathy and regret I am satisfied on all the evidence that this marriage has not broken down irretrievably, I would dismiss this petition with costs to the Respondent to be taxed in event of disagreement.

Petition dismissed.