The classical definition of marriage was given by Lord Penzance in the case of Hyde V.Hyde(1866) L.R.1P and D 130 at page 133, where he defines marriage as `the voluntary union for life of one man and one woman to the exclusion of all others.`

The definition validly and sufficiently takes on board the legal requirements of a statutory marriage, apparently because of the monogamous nature of the marriages.

The Right to found a Family has a wider scope as it includes the right to marry, equal right in marriage, during marriage and equal right in divorce.

The right to marry and to found a family has its basis in religious laws( for instance, African religious laws) and Family law.

In Tanzania this right is provided for under the Law of Marriage Act, Act No.5 of 1971.

.However, this right is one of those rights which are not included in the Bill of Human Rights of Tanzania!
Modernity has brought in complications, challenges and vice as well.

For instance, there have been instances of the existence of hermaphrodites and pseudo-hermaphrodites, none of whom cannot be brought within the definition of male or female` or` man and woman` pursuant to the modern scientific transplantation of sexual organs from male to female and vice versa.

While such anticipatory changes constitute a valid challenge to the law and such changes not withstanding as demonstrated in the case of Carbett V.Carbett (1971), it remains a fundamental rule of law that marriage must be based upon a universal principle of heterosexualism.

That is, the union must be forged between opposite sexes of male and female and not man and man or woman and woman.

In the case cited above, an English Court was called upon to determine the legal position of a spouse who has undergone a sexual organ transplant.

The facts of the case are not difficult to appreciate: `The petitioner and respondent went through a ceremony of marriage in September in 1963.

The petitioner knew that the respondent had been registered at birth as male and had in 1960 undergone an operation for the removal of the testicles, most of the scrotum and the construction of an artificial vagina.

Since the operation, the respondent had lived as a woman.

In December 1963, the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex or alternatively, for a decree of nullity on the ground of either incapacity or willful refusal to consummate.`

The Court was therefore called upon to determine the controversial issue of the gender nature of the respondent.

In other words, the Court boiled down to determine whether the respondent was a man or a woman, that is to say, whether the respondent was of the opposite sex with all the capacity for marriage.

Ormrod, J held that the respondent remained at all times a biological male, and that, accordingly the so called marriage was void.

The decision in this case was later adopted by Bell J in the marriage of C and D (1979) F.L C.90-363, which case was heard at the Family Court of Austria at Brisbane,1979.

However, in another development it is interesting to note that this case was later distinguished by the Supreme Court of New Jersey(America) in the case of M.T.V.J.T, a case with similar facts .

In this case the American Court refused to follow the reasoning in Corbett and decided in the opposite.

The American Court by way of orbiter said the English Court believed, we feel incorrectly, that an anatomical change of genitalia in the case of trans sexual cannot `affect her true sex`.

Thus, the opinion of the Court was to the `effect that in the case of transsexual following surgery and according to expert testimony presented, the dual tests of anatomy and gender are more significant.

On this evidential demonstration, therefore, we are impelled to the conclusion that for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person`s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.`

Just recently a religious delegation came to Tanzania to advocate what they described as the importance of gay marriages among the Tanzanian populace!

They came to introduce and reinforce new cultural values of homosexuality and, indeed, gayism in its wider context.

Precisely, they had come to seek members to the homosexual institution.

For them gayism is part of the demands of the religious democratisation process and, infact, a right in its own way as practised in some parts of the West.

We understand there are some Courts of law in the US which have passed judgements in support of gay marriages.

They are certainly not moral judgements but decisions based on the nature and kind of law existent in the said country.

One wonders why the delegation came to propagate gayism.

For, gay marriages have no legal platform in Tanzania, neither is homosexuality.

In Tanzania, the Law of Marriage Act, Act No.5 of 1971 does not provide for gay marriages. Neither does the same law enact for homosexuality.

The right to marry and found a family is protected under section 9 of this law.

It is a correct interpretation of this law that this right was meant to be enjoyed by spouses of opposite sex and not otherwise, as distinguished from gayism.

Whereas section 10 (1) of the Law of Marriage Act provides for two major kinds of marriages, that is monogamous and polygamous marriages, customary and Islamic marriages inclusive, gay marriages fall out of the province of matrimonial union envisaged in the Act, hence they constitute an illegal practice in our law.

Moreover, the right to procreate and found a family which is embedded in international instruments too signifies parties of the opposite sex holding a marital status.

Gay marriages cannot be contracted in Tanzania as they are not provided for and therefore are wanting in their contractual capacity characteristic, cannot create status of husband and wife and matrimonial sanctity.

Under the same law, a legal relationship of marriage between spouses can only be brought about in the form of a contract where the parties are of the opposite sex.

Such a relationship raises some rights and obligations contained in the marriage contract. Marriage does not only create a contract but it goes further to change the status of the parties.

The status of the parties change to that of husband and wife and this is universally recognised. Wherever they go they should be recognised and addressed as such.

The contract brings the parties into a special class whose rights and duties are prescribed by law. But such status being unique applies to married couples only who belong to opposite sex.

In the circumstances, such a status cannot be accorded to male to male marriage under the existing law. The recognition of the sanctity of marriage by law is one other possible legal effect of marriage.

The law presumes the sanctity of all legally concluded marriages unless a clear proof to the contrary is made. The foregoing is illustrated in the case of Onwudinioh V.Onwugdinjob (1957)11ENLR1.It therefore follows that there cannot be sanctity of marriage arising from man to man marriage.

Gayism being a replica of the decadent western culture cannot be taken on board in Tanzania.

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