LGN v MB [2018] KEKC 22 (KLR)

REPUBLIC OF KENYA

IN THE KADHIS COURT AT HOLA

DIVORCE CASE NO. 3 OF 2018

LGN..........................................................APPLICANT

VERSUS

M B......................................................RESPONDENT

JUDGEMENT

This divorce matter was filled on 5th February, 2018 the applicant   prayed for:

1-  Dissolution of marriage.

2-  Custody of the child.

3-  Past maintenance.

On hearing,  the plaintiff claims that, her life with the respondent has never been a bed of roses as he has been very cruel, abusive, assaulting and threatening her,  this caused her to leave her matrimonial home to her parents for over six months. The respondent failed to provide maintenance and communicate with the applicant . The applicant’s father has been providing  maintenance for his daughter for all that time.  The marriage is blessed with one daughter who is now 21/2years of age. The respondent took the daughter from the applicant by force without mutual agreement between them. To support the Issue the applicant availed 2 witnesses namely Bati  Tuka and Ismail.

They testified that, as elders they tried to settle the dispute but they failed.

Upon  cross -examination by the court the applicant said she can’t stay with the applicant as couples in harmony.

On the other hand the respondent denied all applicants allegation saying that there was a woman behind this problem who insight her to break her marriage. He also claimed that she associates very much with his  friends in his absence which is against his will .He availed one witness namely Wario  who in his testifying said that the respondent disserted her matrimonial home, he tried by the help of elders to solve the dispute but their effort bore no fruit.

The respondent asked the court to convince the applicant to come back to her matrimonial home.

I have noted the issue clearly and I found that the respondent allowed his friends in  his house at his absence and also permitted his wife to prepare food for them.

The court has directed the parties to go for ADR within 10 days but the chance did not bear fruit.

Upon hearing both parties herein and the witness availed in court by the both parties , the matters to be determined are:

a) Is the honorable court entitled to dissolve the marriage as per   plaintiff’s prayers?

b) Custody of the daughter.

(c ) Is the applicant  entitled to previous  maintenance ?

Returning to issue (a) whether this court can dissolve the marriage as per plaintiff’s prayers? It is clear to this court that from the view of the evidence adduced by the applicant it is evident  that this marriage is not worthily   according to the Holy Quran  and the Hadith of prophet  SWALLAH ALLAHU ALLYHE WASALLAM .Allah saying in the  holy al Qur’an  surat arum verses 21(?????? ???????? ???? ?????? ?????? ???? ???????????? ?????????? ???????????? ????????? ???????? ?????????? ????????? ?????????? ????? ??? ?????? ???????? ???????? ??????????????)  meaning : Among His proofs is that He created for you spouses from among yourselves, in order to have tranquility and contentment with each other, and He placed in your hearts love and care towards your spouses. In this, there are sufficient proofs for people who think.)

The prophets swalla ALLHU aleyhi wasalam said: (???? ??????????? ????? ???????? ????????????? ????? ??????????? - ???? ??????????? - ????? ???????? ????????? ????? ????????? ????? ???????? ?????? ??? ????????? ».)  meaning : You feed her when you eat and  cloth her when you cloth  yourself  and not hit her on her face  and  do  not say  may ALLAH deface you. And do not keep away  from her  except in the home.

Back to issue (b) Custody of the child. I have noted that   the interest and best environment to raise a child is the can easily access basic needs(shelter, health , food and education). In these situation the applicant lives in  Witu and the respondent is staying  in Malindi . We can find those basics in Malindi .

Back to issue( c) Concerning the previous maintenance requested by applicant. Is the wife entitled to it upon her request before the court? The Muslim scholars have different opinions on that therefore the court has option to choose one from that different opinion  which  is  more appropriate to apply on  the reality ruling.

Due to the financial situation of the respondent  and the reliance on the doctrine of  the Abu Hanifa, the court sees to drop down the previous  maintenance  on the respondent  as the most appropriate in the application of the reality ruling.

On this  bases I hereby order that:

1- This marriage is hereby dissolved  as  requested by the applicant on condition that:

a)  The applicant should wait for period of eddah of three moths from today.

b)  Divorce certificate to be issued today.

2- Custody of the child is given the respondent and the applicant shall have reasonable access to her.

This is orders of this court

R/A   30 days

Delivered in court is  day of 10 th April 2018

in the presence of

Mursal   M  Sizi     kadhi

Court assistant  Guracho Abdallah

Plaintiff

respondent