ZDB v IT & TR [2017] KEKC 10 (KLR)

REPUBLIC OF KENYA

IN THE KADHIS COURT AT KISUMU

CIVIL CASE NO 57 OF 2017

1. ZDB...........................................................................APPLICANT

VERSES

2. IT.........................................................................1st RESPODENT

3. TR...................................................................2nd RESPONDENT

JUDGEMENT

In this civil cause dated   22nd December 2016 the applicant prayed  for:

1-  the court to ask her husband to change and come back to the family.

2- Father in-law should stay aside and stop disputing her marriage.

The Proceeding of this suit proceeded  ex parte. The respondent failed to be appear before this court.

The plaintiff claims were that ; She confirmed that  her life with the respondent  has never  been a bed of roses as he has been very cruel, abusive and assaulting her. Addition to that the  first respondent (Ismail ) is under control of his father in everything  even in his marriage.

The applicant sought that when she was staying with  her husband,  she   delivered the  first child. The child  was sick and  under medication. She didn’t get any favor from the respondent and his family until the  child passed away in her hand .

She was staying in bad relationship with her husband's family. This reason  caused her to leave her matrimonial home 1 year and 7 months ago. unfortunately,  Ismail and his father didn’t come to her parents for reconciliation.

To support the issue,  the plaintiff availed two  witnesses, namely Dokota  and Boru.  They testified confirming the plaintiff ’s claims in respect of the difficulties in her matrimonial home .

Looking the side of respondent, the first respondent failed to appear before this court while 2nd respondent said that he can't say anything because he is not the husband of the applicant. However, he agreed to help the applicant with 3000/= paid 1000 and balance is 2000/=.

I have noted this issue clearly and I found that  the applicant is living with her child  in bad condition  without any help from the husband's family. Addition to that, the 2nd respondent paid  1000 /=. In this reason,   She is ready to dissolve her marriage.

Upon hearing , applicant herein and the witnesses produced by the applicant  the matters to be determined are :

(a) is the honorable court entitled to dissolve the marriage as per petitioner's prayers.?

(b)  Custody and maintenance  of the child.

returning to issue (a)  whether  this court can dissolve the marriage as per petitioner's prayers.?

It is clear to this court  that the applicant stayed  without communication with her husband . She  doesn't know whether she  is his wife  or not. This is contrary to  Islamic Sharia as stated clearly in chapter 4 verse  129(so as to leave the other hanging (i.e. neither divorced nor married).

Also the respondent failed to provide maintenance for his family over 1year  and 7 months ago.

Upon examining through the cross examination by the court,  the applicant  answered that she want to break her marriage instead of her current situation.

Back to issue(b)  Custody and maintenance  of the children.

tshe  Islamic sharia -    has  ordered  that the  custody of the children is  responsibility of the mother  if the husband pays  the maintenance for his  children. as clear in the holy Qur'an  chapter 2 verse 233(????????? ????? ??????? ????? ?????? ??? ???? ?? ??? ??????? ???? ??????? ?? ????? ??????? ????????)  (And mothers shall give suck to their children for two whole years; this is for those who desire to complete the period of suckling. And the man to whom the child belongs shall be responsible for their (the mothers')maintenance and clothing according to usage.)

on this basis I hereby order that:

1- This marriage is hereby dissolved  as  requested by the applicant  in the way of Faskhu.

2- That the applicant should wait  for the eddah  period  of three months starting from today 8th March 2017.

3- Divorce  certificate  to be issued  on 8th March  2017.

4- It is compulsory for the  respondent  to pay kshs. 3,000/= as maintenance for his children monthly effective from march  2017.

5- The 2nd respondent to pay 2000/= as balance of 3000/= which he agreed to give the applicant within 30 days from today.

These are orders of this court

R/ A -30 days

Read and delivered this 8th day of March 2017

in the presence of

Mursal.M.Sizi---------kadhi

court Assistant-----

Petitioner-