Mphande v. Mphande

The petitioner and respondent cross-petitioned to dissolve their marriage on the grounds of cruelty and adultery. The petitioner husband argued that he should have been granted custody of the couple’s 10-year-old daughter since the respondent wife treated him with cruelty on multiple occasions by exposing him naked in public and depriving him of his conjugal rights while alleging that he was HIV positive and demanding that he get tested. The petitioner additionally alleged that the respondent deserted the matrimonial home for no good reason and took marital property with her. Meanwhile, in her cross-petition, the respondent alleged that the petitioner showed little regard for her and her child’s well-being throughout their marriage. She claimed that the petitioner failed to pay for many household bills, frequently resorted to violence towards her or her child, and locked her out of the matrimonial home. The respondent also explained that the petitioner had multiple affairs and refused to wear condoms with her despite her plead that she was not ready to have another child. On several occasions he resorted to removing or damaging condoms during conjugal relations with her. In siding with the respondent, the Court held that cruelty was established by the respondent’s intention to impose his will upon his wife without consideration of her feelings or health, and granted both parties’ request for divorce. The Court affirmed the respondent’s grant of custody, reiterating that custody of young children is granted to the mother unless in exceptional circumstances that call into question the welfare, happiness, and interest of the child. 

Topics

• Divorce and dissolution of marriage
• Domestic and intimate partner violence
• Sexual violence and rape

Geographical location

• Africa
• Malawi

Keywords

• best interests of the child

Year

• 2008

External URL

• Mphande v. Mphande

Court

• High Court of Malawi

Type

• Domestic Case Law

Jurisdiction

• Malawi