5 THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KABALE

DIVORCE CAUSE NO. 001 OF 2025
BYAMUGISHA JAMES ::::::::::::::::::::::::::::::::::::::::::::: PETITIONER
VERSUS
10 TUSHEMEREIRWE SPECIOZA :::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE SSEMOGERERE, KAROLI LWANGA

JUDGEMENT

15 Brief Facts:
Parties, were married in a solemn marriage at Christ the King Church, Kabale
Municipality in the Catholic Diocese of Kabale on 24th November, 2007.
The marriage was celebrated in accordance with the provisions of the
Marriage Act, Cap 146. Byamugisha James (“Petitioner”) petitioned this in
20 the above cause, court for divorce from his wife . Petitioner’s grounds were
cruelty, and desertion. The details will not be reproduced in this judgment
in accordance with practice of this court to protect the parties and their
children from invasion of their privacy and unnecessary trauma.
Tushemerirwe Specioza, his wife (“Respondent”) opposed the petition
25 stating the petitioner had no valid grounds for dissolution of their marriage.
She denied collusion or condoning the petition. There is an interesting
statement in the petition; in paragraph 9(iii) an allegation by the Petitioner
that the respondent had changed her faith from the Catholic faith and
joined the Pentecostal faith where the respondent worshipped without his
30 consent. In addition, as of the date of the petition, the parties had been
living apart for 2 years.

The marriage begat 4 issues: (i) Atuheire Byamugisha Lynn aged 16 years
old; (ii) Abigaba Byamugisha aged 13 years; (iii) Abeine Byamugisha Pedro
35 aged 8 years and (iv) Atwine Byamugisha Bell aged 4 years. During the
pendency of the petition, all 4 issues lived with the respondent.
1
 5
Petitioner is an electrician, and Respondent is a home maker. In accordance
with the special procedures adopted by this court, the parties filed a joint
inventory supported by Uganda Police Officers at Kabale Central Police
Station, D/C Ngobi David and PC Owomuhangi James, to which court is
10 grateful. A copy of the inventory was filed with court on April 28, 2025.
The petitioner in paragraph 7 stated the respondent deliberately refused to
work. He stated he carried the total burden of school fees, clothing, medical
care, food and shelter. He stated in paragraph 8 that during the subsistence
of the marriage, he had acquired land and constructed a home at Nyakiharo
15 Cell, Mwanjari Ward in Kabale Municipality. Particulars of the title were
attached. At the hearing, there were unverified allegations of property
owned by the Petitioner but these were dismissed for two reasons. The first
was his place of business, an electrical supplies shop in Kabale and the
second an 18 acre piece of land with trees, with no particulars specified by
20 the respondent.

On the same date, April 28, 2025, this honourable court ordered evaluation
of the children by the Probation and Social Welfare Officer to ascertain
what was in the best interests of the children, with a specific focus on
25 custody, maintenance and their upbringing. The Senior Probation and
Welfare Officer, Ms. Monica Muhummuza complied with, this stipulation in
a filing made on June 13, 2025. Court is grateful for this assistance.

Representation:
30 With completion of the preliminaries, the hearing of the petition could
commence. Petitioner was represented by M/S Alice Namara and Co.
Advocates. Respondent was unrepresented.

Discussion and Analysis:

35
The powers of court in divorce matters are limited to an inquiry under
Section 6 of the Divorce Act, Cap 144 (the “Act”), which provides as
follows:

2
 5 “the court shall satisfy itself, so far as it reasonably can, as to the facts
alleged and also whether or not the petitioner has been in many
manners accessory to or conniving, at the going, through of the form
of marriage or the adultery complained of, or has condoned it, and
shall also inquire into any countercharge which may be made against
10 the petitioner.”

An inquiry is not a full-blown trial, clothed with the formalities and

technicalities of a civil suit tried by an ordinary plaint. In this setting, parties
may even withhold from court, details, they wish to keep private, especially
15 if they serve to embarrass them.

Court also has the discretion to hear the petition in camera. Section 34 of
the Act states:
“The court may hear the whole or any part of the of the proceedings
20 under this Act with closed doors.”

Court after the muster hearings, proceeded to hear the matter in camera,
from June 27th, 2025 until conclusion of the hearings on July 4th, 2025.
During the hearing, petitioner maintained there was no possibility of
25 reconciliation. Respondent hoped for reconciliation. The children’s briefs to
the Senior Probation Officer, confirmed the state of marital discord and at
the same time, the children were anxious about being labeled “children of
divorced parents”. The children on being interviewed expressed anxiety
about the economic situation of their mother who had only begun a new
30 job in February 2025 as a nursery school teacher. The older children,
expressed a strong wish for the Petitioner to be involved again in their
family life.

Issues for resolution:

35
Court has framed the following grounds for resolution of this petition:

(a) Whether there are grounds for grant of this petition for divorce;
(b)Who is entitled to custody of the issues of the marriage;

3
 5 (c) What is the settlement of marital property.
(d)What reliefs are available to the parties;

Grounds for divorce:

In view of the limited powers of court under Section 6 of the Act, and
10 evidence led by the parties, and supplementary evidence by the children
substantiation the following grounds under Section 4(e) and (f) of the Act.

(1) Cruelty.
I will dispose of this ground first.
15 Section 4(e) of the Act allows a marriage to be dissolved if the wife or her
husband is guilty of cruelty. Cruelty is a circumstance, rather than a legal
definition. In Uganda, cruelty is not defined in Section 1 of the Act, as a
defined term. In Isabelle Frances v Nathan Nshaija HC-05-DC-0002-2021,
my sister Kavuma J., J of the High Court stated at page 7 of the decision.
20 “The legal conception of cruelty and the kind of degree or cruelty
necessary for it to amount to a matrimonial offence has not been
defined in our laws.” Emphasis mine.
Black’s Law Dictionary, 6th Edition at page 376, defines cruelty as:
“The intentional and malicious infliction of physical or mental
25 suffering upon living creatures, particularly human beings; or as
applied to the latter, the wanton, malicious and intentional infliction
of pain upon the body, or the feelings and emotions, abusive
treatment, inhumanity, outrage.
“Chiefly used in the law of divorce, in such phrases as cruel and
30 abusive treatment,” “cruel and barbarous treatment” or “cruel and
inhuman treatment. The term includes mental injury as well as
physical.”
Paragraph 9 (i), (ii), (iii), (iv) of the Petition all detail some actions in
generalities but lack specific particulars. However, these are partly

4
 5 augmented by Paragraph 10 that describe threats to be killed and other
irreconcilable differences. The respondent’s reply had a general denial to the
effect:
“In response to paragraph 9……the contents therein are denied in
toto and the Petitioner shall be put to strict proof thereof.”
10 In the absence of compelling evidence by the parties, that meets the
evidentiary standard, “satisfaction of court”, I refer to the Probation and
Social Welfare Officer’s report, taking into account the provisions of Section
6 of the Act, that allows for an inquiry, rather than an inquisition. One of
the children stated, she had witnessed episodes of both physical and
15 emotional violence between her parents. The petitioner who was also
interviewed by the Probation and Social Welfare officer, stated, he was
feeling disrespected, and held suspicion of witchcraft by the respondent. The
respondent did not rebut these allegations in her interaction with the
Probation and Social Welfare Officer. The offence of witchcraft remains on
20 the statute books of Uganda and acts of witchcraft especially in the context
of practice of Christianity or other modern religions professed by parties to
a marriage is an act of cruelty. Section 2 of the Witchcraft Act, Cap 135 (the
“Witchcraft Act”) defines 4 offences in relation to witchcraft. These are:
(1) Direct or indirect threatening another with death by witchcraft….
25 (2)Direct or indirect threatening to cause disease or any physical harm
by witchcraft;
(3)The practice of witchcraft;
(4) Hiring or procuring another person to practice witchcraft;
I find that any allegation of witchcraft must be particularized and carry the
30 specificity in the offences in relation to witchcraft under Section 2 of the
Witchcraft Act, absent of which, an allegation of witchcraft cannot be
sustained under Section 6 of the Witchcraft Act. Nonetheless, the practice of
witchcraft remains abhorrent. The Supreme Court in Attorney General v
Salvatori Abuki, Constitutional Appeal No. 1 of 1998 has upheld these
35 offences as disruptive to social order and harmony in society. A unanimous
court declared Section 7 of the Witchcraft Act, that allowed banishment of

5
 5 convicts from their homes unconstitutional, while upholding the rest of the
Act1.
Nonetheless. I find on the basis of this inquiry, that the state of affairs
between Petitioner and respondent meets the definition of cruelty as a
ground of divorce. Secondly, I agree with the finding of the Probation and
10 Social Welfare Officer that this state of affairs has caused an emotional gap
in the lives of the children.
Findings; the ground of cruelty is established on the basis of conduct by both
parties. In effect, the conduct of each party established a ground, and
counter-charge by each party under Section 6 of the Act.
15

(2)Desertion:
In paragraph 11 of the petition, petitioner states as follows:
“That due to the cruelty of the respondent, the parties have
been living in separation for two years now.”
20 Respondent did not make a specific reply to this allegation. Desertion like
cruelty is not defined in the Act. Black’s Law Dictionary 6th Edition at page
446 defines desertion as follows:
“The act by which a person abandons and forsakes without
justification….family life, renouncing its responsibilities and
25 evading its duties.”
One of the children, was emphatic in their interaction with the Probation
and Social Welfare Officer, stating they,
“For a period of about 3 years, they had observed total change
between the parents; not relating as a married couple; sleeping
30 in separate rooms.”
Another child stated.
“Father left them and went to live in Kitumba and can spend a
year without coming home.”
1
Section 7 has since been expunged from the statute books.

6
 5 A personal letter written by one of the children to the father, causes even
more anguish,
“Let me give you a chance to see all that money you have been
wasting on rent wherever you stay, when you have your own
house, can you see all that money going to waste. In brief, all I
10 want is you to come back home and stay with us and put out
your plan of divorcing mum.”
The respondent’s denial, similar to that of cruelty is a general denial.
“In response to paragraph …11….the contents therein are
denied in toto and the Petitioner shall be put to strict
15 proof thereof.”
It is clear from the petition and reply, that both parties have denied each
other conjugal rights. I am unable to find fault with either of them for this
situation. Second, the desertion by the petitioner is on the pretext of
conduct of the respondent.
20 A decision of the Family Division of the High Court, by my sister, Nagawa
C. J., in Harriet Generosa v Nick Chiles Muramira, Divorce Cause No. 183
of 2022 reported at 2024 UGHCFD 15 paragraph 7.14, states:
“denial of conjugal rights amounts to cruelty.” [Emphasis mine].
I am unable to find support for this proposition in the Act, except where
25 denial of conjugal rights has the effect forming part of the definition of
cruelty in my resolution of the first ground. Parties may voluntarily opt to
have sexual relations, in some form or another, or none at all. Lastly,
conjugal relations may be ceased on even doctor’s advice, as a threat to
human life. Parties may not have sex for purposes of birth control, avoid
30 spreading of diseases, actual bodily injury or simply choice or old age. To
make a blank statement, would for example allow an anomaly where
parties of advanced age find themselves dragged to court in actions for
divorce based on this misconstrued, non-statutory ground.
I also find that desertion in this case was based on the evidence on the
35 record, the choice of the petitioner. It is not the intention of the law to

7
 5 specifically reward the deserting party, as opposed to the deserted party a
ground of divorce.

Change of religion from Christianity for the profession of some other

religion.
10 I have added to my discussion, this alleged, ground, but on the face of it, it
is not a ground at all.
In paragraph 9(iii) of the Petition, Petitioner alleges that the Respondent
changed her faith from Catholic to Pentecostal faith, where she worships
without his consent. This ground is deficient on its face, and fails. Section
15 4(b) of the Act provides as follows:
A husband or wife may apply, by petition to the court for dissolution of the
marriage on the ground that since solemnization of the marriage, his wife or
her husband:-
(b) has changed his or her profession of Christianity for the profession
20 of some other religion, and gone through a form of marriage with
another man or woman.
In the petition, the religious faiths, complained of by the petitioner, Catholic
and Pentecostal are both Christian. Second, the respondent has not gone
through a form of marriage with another man. That concludes consideration
25 of that ground.
I find the petitioner has established one ground for divorce, under Section 4
of the Act.

Custody of the Children:

30 I now turn to the custody of the children, matrimonial property and other
effects of the marriage.
Marriage is a highly regulated legal obligation. It is a contractual obligation,
carrying moral, emotional, physical and economic obligations on both

8
 5 parties. It has preliminaries in Part II, Consent Requirements in Part III; and
Formalities to Celebrate Marriage in Part IV of the Marriage Act, etc.
Marriage as a constitutional right is recognised under the Constitution.
Article 31(b) of the Constitution provides for rights of the family. Specific to
divorce.
10 “A man and a woman are entitled to marry only if they are each of
the age of eighteen years and above are entitled at that age-
To equal rights at and in marriage, during marriage and at its
dissolution.
Specific to children, the Constitution has another command in Article 31(4)
15 and (5) thereof. Article 31(4) of the Constitution provides as follows:
“It is the right and duty of parents to care for and bring up their
children.”
Second, Article 31(5) provides as follows:
“Children may not be separated from their families or the person
20 entitled to bring them up against their will or of their families or of
those persons, except in accordance with the law.
This provision has further elaboration in the Children Act. Section 4(1)(a) of
the Children Act, Cap 62 (the “Children Act”) provides as follows:
“Every child has the right to live with his or her parent or guardian.”
25 This section is supported by obligations on each parent under Section 5(1) of
the Children Act, which provides as follows:
“It shall be the duty of a parent….or any person having custody of a
child to maintain that child, and, in particular, that duty gives a child a right
to:
30 (a) Education and guidance;
(b)Immunization
(c) Adequate diet;
(d)Clothing;
(e) Shelter; and

9
 5 (f) Medical attention.
Lastly, Section 6(1) of the Children Act provides as follows:
“Every parent …shall have parental responsibility for his or her child.”
These duties incumbent on parents have been elaborated in a decision of
this court, Tadeo Ruzindataro v The School Management Committee of
10 Bishop Asili Memorial Nursery and Primary School, Civil Suit No. 36 of
2022 reported at 2025 UGHC 409.
Section 28 of the Act, (infra)must be read subject to the above constitutional
provisions. Section 28 of the Act provides as follows:
“In suits for dissolution of marriage….the court may at any stage of
15 the proceedings….make such order as it thinks fit, ….with respect to
the custody, maintenance and education of the minor children of the
marriage, or for placing them under the protection of the court.”
In this case, all children by their ages, are minors.
In their respective pleadings, Petitioner prayed court for orders of custody
20 and maintenance. Respondent prayed for maintenance only; in her reply.
These prayers must be read, and acted on by court, subject to the provisions
of the Constitution and Children Act. outlined above. These are: the right of
each parent to custody, the duty of each parent to provide for the child.
The powers of court under Section 28 of the Act are subject to these
25 aforementioned provisions.
I award both parties subject to supervision of court, joint custody and
responsibility for all parental duties including maintenance and education to
the children; subject to the following proviso. Given the current 100%
contribution by the Petitioner to the education and maintenance of the
30 children, and the respondent’s continued occupation of the home; a set-off
of 20% is made against the respondent’s share of matrimonial property.
In respect of joint custody, the parents will have equal input in the
following; education choices, acquisition of scholastic materials and extra-
curricular activities. Each of the parents; in respect of the 4 children until
35 they each turn age 18 enjoy, alternate custody during the holidays, and in

10
 5 alternating years, custody during the long school holiday that runs from
December to February each year. This is the alternate holiday rule applied in
Hilda Natukunda v Kabagambe Eliab, Divorce Cause No. 2 of 2024, 2025
UGHC 422. The custodial parent will have full responsibility for all other
duties of the parent under Section 5(1) of the Children Act.
10 In respect of maintenance, the parents will similarly have equal
responsibility, save for the fact that the petitioner will continue meeting the
day-to-day needs of the children as and until the respondent finds herself on
a sounder financial footing. Should there be a change in circumstances,
either or, or both parties may come to court with new arrangements for
15 review and approval.

Matrimonial property:
This court has powers under Section 27 of the Act to direct any property to
be settled.
20 Petitioner in his petition prayed for declaration the matrimonial home in
Mwanjari, Nyakiharo cell as in his sole ownership. The property comprises
of registered land comprised in Block 3, Plot 680, land at Nyakiharo in
Kabale Municipality, Kabale district. This property is registered in his names.
This property was acquired in the pendency of the marriage on October
25 18th, 2016.
Counsel for the petitioner correctly abandoned this proposition by stating
the correct position of the law in Uganda in Ambayo Joseph Waigi v Aserua
Jacline Civil Appeal No. 0100 of 2015 which stated that decisions regarding
property rights of married persons are now governed by Article 31(1)(b) of
30 the Constitution. She prayed that respondent be awarded 5% of the
matrimonial property. I am unable to agree with Counsel’s submission. Such
an award would stigmatise women who are home makers and the
guarantees of equality of all persons before the law enshrined in Article 21
of the Constitution.
35 On the authority of Muwanga v Kintu, Divorce Appeal, No. 13 of 1989,
Bbosa S., J., as she then was on distribution of matrimonial property and

11
 5 how it should be handled on divorce stated the following principles: The
court should consider both monetary and non-monetary contributions of
each spouse. I wish to add, that non-monetary contributions to a marriage
include but are not limited to (a) which are maintenance of the household,
(b) caring for children and (c) enhancing the children’s overall welfare. It
10 goes without saying that petitioner enjoyed consortium in the marriage,
which brought the 4 offspring. Within marriage, there are non-economic
benefits of a marriage, described as consortium. These are (a)
companionship, (b) affection and (c) sexual relations. Consortium is often
understated in evaluation of non-monetary contributions yet loss of
15 consortium is at the centre of most matrimonial strife today.
Taking into account all factors, narrated in the petition, I award the
petitioner 70% of the value of the matrimonial home, to be recovered
upon sale after the youngest child now age 4, turns 18, and is no longer a
child. I award respondent 30% of the value of the matrimonial home to be
20 recovered from the same sale. Parties are responsible for maintenance of
the home to avoid it becoming a derelict property.

What other reliefs are available to the parties?

Alimony:
25 I only have one other award as relief from the petition. I order Petitioner to
pay the Respondent UGX 200,000/= as monthly alimony for the period
not exceeding the life of the Petitioner under Section 24(1) and (2) of the
Act. This order is subject to review by court.

30 Comment:
The family is the core of the modern nation state. Marriage is the most
important contract in family, which the state has a legitimate interest to
protect. While the divorce rate in Uganda is still low, according to Pulse
Uganda just 7% of families in Uganda experience divorce every 4 years, the
35 rate of emotional disconnection in marriages continues to rise which needs
attention and support for couples.

12
 5 The purpose of marriage is three-fold, wellbeing of the spouses, pro-creation
and raising children of the marriage. Cruelty with little elaboration speaks to
all form of conduct that disturbs the physical and emotional wellbeing of
the parties. Irreconcilable differences also may fall under cruelty. Denial of
conjugal relations while not automatic, as a ground of cruelty, may count,
10 as marriage has an implied right to consortium.
The overhaul of the laws on marriage in Uganda is overdue. Marriage exists
in a particular context. Respondent has a strong case, that her marriage to
the petitioner not be dissolved for religious reasons. She indeed repeated her
strongly held views in court. However, the law as is, allows divorce on
15 proof of one ground only, and it must be enforced on the books as is. The
laws on the books govern marriage and divorce, not marital strife

20

Findings and conclusion:

1. A decree nisi for dissolution of the marriage between the Petitioner
25 and Respondent is ordered to be made absolute 6 months from the
date of issue.
2. Joint custody for the issue of the children on the terms in the
judgment.
3. Respondent to remain in the matrimonial home.
30 4. Sale of the matrimonial home at Block 3, Plot 680 Land at Nyakiharo
when Atwine Byamugisha Bell turns 18 years of age, and proceeds
therefrom to be shared 70% by the petitioner and 30% by the
respondent.
5. No additional order for maintenance.

13
 5 6. Alimony in the amount UGX 200,000 monthly payment from the
Petitioner to the Respondent.
7. The Probation and Social Welfare Officer is directed to identify
suitable training on parenting for both parents to train them on how
to handle the responsibilities of raising the children in the aftermath of
10 this divorce.
8. The terms of this judgment are subject to annual review by court, at
instance of either of the parties or both of the parties, to take into
account changed circumstances.
9. No order as to costs.
15

I SO ORDER,

DATED AT KABALE THIS 15th DAY OF JULY 2025

20

SSEMOGERERE KAROLI LWANGA

JUDGE.

14