Q&A – 5 July 2021

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Annulment of marriage

I have discovered that my wife was pregnant with another man at the time we contracted our marriage but she did not disclose this to me. Our marriage has subsisted for about 10 months and we have acquired one house since we contracted the marriage. However, with the above facts, I am disappointed and want to get out of this marriage. What can I do? Is she entitled to a share of the house we have acquired during subsistence of this marriage? 
RT, Mtwara

In view of section 39 (a)(iv) of the Law of Marriage Act [Cap.29 R.E 2019], the marriage becomes voidable if at the time of contracting it, the wife was pregnant by another man. In order to get out of this voidable marriage, the husband is required to petition the Court under section 96 of the Law of Marriage Act for annulment of marriage.

However, for the annulment petition to succeed, the husband has to establish that: (i) the petition for annulment was filed within 1 year since the date of contracting the marriage; (ii) at the time of contracting the marriage, the husband was not aware of the pregnancy he is doubting; (iii) marital sex has not taken place since the husband discovered that the wife was pregnant by another man at time of contracting the marriage.

The Law of Marriage Act does not contain express provisions for division of matrimonial assets subsequent to the annulment of a voidable marriage. Section 114(1) of the Act only addresses the division of matrimonial assets when the Court is granting or subsequent to the grant of divorce or separation and not upon annulment of a voidable marriage. However, section 98(1) saves anything lawfully done during the subsistence of the voidable marriage. This, in our view, likely means that a wife has the right to a share of the properties lawfully acquired during subsistence of the voidable marriage. A mere fact that the marriage was voidable right from the time of contracting it does disentitle a spouse to a share of the properties jointly acquired during subsistence of such voidable marriage. We also suggest you consult your attorney for further guidance.

Human DNA sample collection by force

I have been called by the Police to appear at the Police station for collection of my Human DNA samples on allegations of rape. What if I refuse my sample from being collected? Can the police collect sample from me without my consent? What rights do I have when a sample is being collected from me?
FG, Dar

The Police power and procedure for collecting Human DNA sample for the purpose of criminal investigation is prescribed under the Human DNA Regulations Act, 2009; the Criminal Procedure Act [Cap.20 R.E 2019] and the Human DNA (Sample Management, Human DNA Laboratories, Qualifications of Analysts and Inspectors) Regulations, 2010. According to section 28(3) of the Human DNA Regulation Act, 2010, samples for Human DNA identification collected for the purpose of criminal investigation do not necessarily require consent of the accused as the sample source. A police officer being a sampling officer recognised under section 14(2) and 24 of the Human DNA Regulation, 2009 has power to collect Human DNA sample for the purpose of conducting criminal investigation without necessarily obtaining consent of the accused. Section 59(3) of the Criminal Procedure Act [Cap. 20 R.E 2019] allows a police officer even to use reasonable force to collect sample from the accused in case he refuses to give the sample voluntarily. In fact section 59(4) of the CPA creates the offence of refusal to give sample to a police officer by the accused or a suspect.

However, there are conditions to be fulfilled before a police officer acting as a sampling officer proceeds to collect Human DNA samples from a suspect for the purpose of criminal investigation. The sampling officer should meet the quality of a police officer as defined under section 3 of the Human DNA Regulation Act which limits the power of taking Human DNA sample to the in-charge of a police station (OCS) or acting OCS above the rank of Assistant Inspector. Human DNA sample cannot be collected from a suspect by just any police officer.

Secondly, before collecting Human DNA samples, a police officer acting as a sampling officer must first get a written authorisation from a requesting authority allowing him to take the sample. By virtue of section 25(2)(c) of the Human DNA Regulation, 2010, a police officer allowed to initiate the process of collecting Human DNA samples and sending the request for sample analysis to the Human DNA Laboratory for the purpose of criminal investigation should be of or above the rank of inspector. This means for a police officer to qualify to initiate the process of collecting and submitting Human DNA sample to the Chief Government Chemist Laboratory Agency for DNA analysis, he must be of the rank of inspector or above.

The authorisation for collection of a sample from a suspect is done by filling form no.2 provided in the Second Schedule to the Regulations. Section 28(2)(i) of the Human DNA Regulations Act gives the accused or the suspect being a sample source, the right to be given a copy of the authorisation form before a sample is extracted from him. Other rights the accused should be accorded in writing are, the right to be shown the authorisation form issued by the requesting authority to collect DNA sample from him; the right to be given the reasons for taking his DNA samples; the right to be told the procedure to be used in collecting the sample from him; the right to be told that the genetic information to be extracted from the sample for Human DNA may be used as evidence for or against him. Where the accused is a female, the sample must be taken by a female sampling officer. Generally Human DNA sample must be taken fairly, legally and in a manner that upholds human dignity. All these accused’s rights are accorded in writing by filling form no.3 and form no.4 prescribed in the third and fourth schedule to the DNA Regulations.