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KadhiAllowedCivil Case No 17 of 2015· [2015] KEKC 31 (KLR)

F B M v M S (Civil Case 17 of 2015) [2015] KEKC 31 (KLR)

Kadhi's Court
23 April 2015
AAABDULHALIM H. ATHMAN
882 words in judgment
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The bottom line

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Kenya's Kadhi's Court dissolved a marriage after two years of desertion and awarded the wife over Sh600,000 in unpaid maintenance.

What this practically means

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Executive summary

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This was a divorce cause before the Principal Kadhi at Mombasa. The plaintiff, a Kenyan woman married under Islamic Shariah on August 26, 2012 to an Australian national of Ethiopian descent, sought dissolution of the marriage, costs and any other relief. She pleaded that the defendant deserted her shortly after the wedding - the parties cohabited for about one month before he left for Australia and never returned - and that he neither communicated with her nor provided maintenance, and had denied her conjugal rights. The parties had no children. Service was effected through substituted service under Order 5 rule 17(1) of the Civil Procedure Rules. The sole issue framed was whether the plaintiff was entitled to dissolution of the marriage. The Kadhi found as fact that the defendant had deserted his wife for two years and seven months, denied her conjugal rights and failed to provide for her. Relying on the Quran (Rum 30:21; Al Baqarah 226; Nisa 4:34) and Article 88 of the Islamic Charter on Family, the court held that desertion and denial of conjugal rights negate the objectives of marriage, and that a wife's right to dissolution for lack of maintenance is stronger even than for inability to intercourse. The court declared the marriage dissolved with effect from April 23, 2015 (3rd Rajab 1436 AH), awarded past maintenance of Kes 620,000 (31 months at Kes 20,000 per month), and ordered costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff is entitled to dissolution of the marriage on grounds of desertion, denial of conjugal rights and failure to provide maintenance

Holding

Yes; the marriage was dissolved and past maintenance awarded

Reasoning

The Kadhi found as fact that the defendant deserted the plaintiff for two years and seven months, denied her conjugal rights and failed to provide maintenance. Citing the Quran (Rum 30:21, Al Baqarah 226, Nisa 4:34) and Article 88 of the Islamic Charter on Family, the court held that desertion negates the objectives of marriage and that a wife may request divorce where the husband refuses financial support or is absent for a long time.

p. 2

Legal principles established

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  • A wife is entitled to seek dissolution of the marriage after four months of denial of conjugal rights or desertion
  • A wife's right to dissolution for lack of maintenance is stronger than for lack of ability to intercourse

Court orders

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  1. 1.The parties' marriage is pronounced and declared dissolved with effect from April 23, 2015 corresponding with 3rd Rajab 1436 AH
  2. 2.Divorce certificate to issue
  3. 3.Plaintiff awarded past maintenance for 31 months at Kes 20,000.00 per month, i.e. Kes 620,000.00
  4. 4.Costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 rule 17(1)
Jurisdiction invoked
Original jurisdiction of the Kadhi's Court over matters of Islamic law relating to marriage and divorce; Islamic Shariah

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "F B M v M S (Civil Case 17 of 2015) [2015] KEKC 31 (KLR)", Case Analysis (2015). Civil Case No 17 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/31/eng@2015-04-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.