Imagine seeking the court’s help to convince your wife to return home, but she instead persuades it to dissolve the marriage.
A man in Garsen, Tana River County, was shocked when a Kadhi’s Court nullified his one-year-old marriage that he had tried to save.
Apart from dissolving the marriage, the court also directed the woman to return the dowry the man had paid.
The couple had disagreed over the woman’s dressing, which the man said was against Islamic principles, and her failure to observe daily prayers.
Garsen Kadhi Mursal Mohamed dissolved the marriage and ordered the woman, identified only as MN, to return two cows and Sh50,000 and money spent during their wedding.
In his two-page judgment, Mr Mohamed said he reached his decision after finding that attempts to salvage it through alternative dispute-resolution mechanisms, as ordered by the court, had failed.
“I found that the respondent is willing to forfeit her dowry in order to secure divorce which is allowed in Islamic sharia,” he said.
The Kadhi continued: “On this basis, I thereby order that this marriage is dissolved on condition that the respondent should pay back two cows and Sh50,000 within 30 days and 40 days respectively from the date of judgment.”
The court also directed the woman to wait for one month from the date of judgment to marry another man. In Islamic law, this is the period a woman must observe after the death of her husband or after a divorce before she takes a new spouse.
The man was also ordered to pay Sh1,000 in monthly child support.
In his court papers, the man said: “I want her to return home so I need the court to assist me.”
The woman denied accusations that she had defied Islamic principles through her dressing and told the court the man had threatened to kill her and regularly assaulted her.
“In 2017, when I was expectant, the petitioner assaulted me. I reported this to his father, but he did not take any action. Later that day, the petitioner forced me to take some drugs so as to abort,” she said.
The woman left her matrimonial home in July last year, barely a year after their wedding.
She said the marriage had irretrievably broken down. “Because of the above reasons, I pray for judgment against the petitioner for divorce, custody of the child and its maintenance for three months and release of my documents which are in his custody,” she said.
Although her request was granted, it came with the burden of returning the dowry.
But the woman, through her lawyer Said Hisham, obtained a High Court order staying the execution of the Kadhi’s Court judgment.
Garsen High Court Judge Roseline Korir certified the woman’s application as urgent and ordered that it be served upon the respondents for inter-parties hearing.
In a memorandum of appeal, the woman said she was not satisfied with the judgment. “The kadhi gravely erred in law and fact by ordering the appellant to pay back two cows, yet the marriage had been consummated,” she said.
The woman also faults the Kadhi for granting special damages of Sh50,000 to the man though the matter was not argued in court.
She added that Sh1,000 was too little for child support.