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UNIVERSITY OF NAIROBI, FACULTY OF LAW FAMILY LAWREVISION QUESTIONS 9 TH OCTOBER 2004- GA. Mr. Swabri Salim's Suit for a Declaration of Nullity.(I) The Nature of the Marriage. The fact that Mr. Salim has moved to the chief Kadhi's court to seek a declaration of nullity indicates that they were marrie...

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UNIVERSITY OF NAIROBI, FACULTY OF LAW FAMILY LAW REVISION QUESTIONS 9TH OCTOBER 2004- G1 A. Mr. Swabri Salim's Suit for a Declaration of Nullity. (I)

The Nature of the Marriage.The fact that Mr. Salim has moved to the chief Kadhi's court to seek a declaration of nullity indicates that they were married under islamic law over which the Kadhi's court has jurisdiction. Thus the issue of declaration of nullity is to be determined according to Islamic law. The applicable law is to be found in the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage , Divorce, and Succession Act.

(II)

Null and Void Marriages Under Islamic Law.The following are classed as void or voidable under Islamic law.

a. An Irregular/ Perceived Marriage This is one where either: 1. There were no witnesses. 2. The woman was undergoing her Iddat. 3. The man purports to marry a fifth wife. 4. Marriage is prohibited by difference of religion. No formal proceedings are necessary to end it and as between the parties themselves no rights will accrue. However the children of the union are deemed to be legitimate with all attendant inheritance rights thereof. Once there has been consummation the woman becomes entitled to her dower. b. Batil (Void) Marriage.The parties are related to each other within the prohibited degrees of consanguinity, affinity, or fosterage. Also occurs where there's an incapacity which prevents them from consummating the marriage. Such marriage has no rights or duties being void ab initio. The children are deemed to be illegitimate with no inheritance rights whatsoever. Mr. Salim's suit. Therefore for Mr. Salim to succeed he must prove either that the marriage between Mr. Hussein and Ms. Chelangat is an Irregular marriage or a Batil marriage under Islamic law. He also has to prove that their (Salim and Chelangat's) marriage was valid in the first instance and was subsisting when she married Mr. Hussein. To wit he must prove that in relation to their own marriage the following requirements were met: Requirements of capacity. 1. The wife was single. 2. They weren't within the prohibited degrees of consanguinity and affinity. 3. Both were of age. 4. Both are of the same social status. 5. Consent acquired when required.

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6. Both are of the muslim faith. However this applies specifically to the Anafi sect. In other sects the wife may be a non-moslem. 7. Male and female. Requirements of formality. 1. Payment of Mahir. 2. Making of offer by the husband and acceptance by wife with at least two witnesses. 3. S.9 of the Mohammedan Act requires registration of the marriage within 7 days of its celebration. However s. 24 holds that lack of registration won't invalidate an otherwise valid marriage or vice versa. It must be noted that failure to comply with any of the above requirements renders the marriage void under Islamic law, it becomes a Batil marriage. Thus if Mr.Salim can prove failure to comply with the above in the second marriage then he can succeed in obtaining a petition of nullity. He can also bring about criminal charges against Ms. Chelangat for the offence of Bigamy under s. 171 of the Penal code. B. Ms. Chelangat's Suit for Divorce. Mr. Hussein and Ms. Chelangat were married under Islamic law, it thus follows that a divorce must be guided by Islamic law as found in the Mohammedan Marriage, Divorce, and Succession Act and the Mohammedan Marriage, and Divorce Registration Act. (I)

Divorce Under Islamic Law.The contract of marriage may be dissolve in any of the following ways: a. By the husband at his will, without the intervention of the court. b. By mutual consent of the husband and wife without court intervention. c. By Judicial decree at the suit of the husband and/or wife.

When the divorce proceeds from the husband it's called Talak. When effected by mutual consent it's called Khula or Mubarat and depends on the terms of the contract of marriage between the parties. Stipulation by wife for right of divorce.In this instance its Ms. Chelangat who's suing for divorce. Under Islamic law an agreement may be made either before or after marriage by which it's provided that the wife should be at liberty to divorce herself in specified contingencies: 1. Husband's whereabouts unknown for a period of 4 years. 2. Failure of husband to provide for maintenance of the wife for a period of 2 years. 3. Sentence of imprisonment on husband for a period of 7 years. 4. Failure without reasonable cause to perform marital obligations. 5. Impotence of husband. 6. Insanity of husband. 7. Repudiation of marriage by wife.

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8. Any other grounds recognised by Muslim Law. The grounds are independent of each other and on proof of any one of them a decree for dissolution can be made. (II)

Ms. Chelangat's Suit. Her claim that Mr. Hussein didn't take care of her material and other needs falls under grounds (2) and (4) of the above mentioned contingencies. On these two grounds she has a good case for divorce and her action will succeed if she can prove them convincingly on a balance of probability to the court.

It has been held that a husband can't be said to have neglected or failed to provide maintenance for his wife unless under the general Mohammedan law he was under an obligation to maintain her. It's also been held that she mustn't herself be guilty of breaching the contract of marriage. Thus the allegations of adultery against Ms. Chelangat with a certain Mr. Fadhili, levelled by Mr. Salim may result in her divorce petition being dismissed by the court. It should be noted that the Anafi sect doesn't list neglect by a husband to maintain his wife as a sufficient ground for divorce. Hence if Ms. Chelangat and Mr. Hussein are Anafi moslems then she can't sue for divorce on this ground. Adultery. Sex entailing fornication or adultery is Zina and is forbidden under Islamic law. The offspring of such union is illegitimate and can't be legitimated by acknowledgement. If the adultery allegations are proven Ms. Chleangat is guilty of Zina and this can be a ground for divorce (Talak) by her legitimate husband, Mr. Salim. C. The 2 Marriages. (I)

Mr. Swabri Salim and Ms. Najma Keya Chelangat.He says he married her in November 1998. The onus of proof is upon him to show that they were indeed married. This is in accordance with s. 3(4) of the Mohammedan Marriage, Divorce and Succession Act which states: " In any such matrimonial causes or suits as aforesaid, the onus of proof of the principles of Mohammedan law shall be on the parties alleging the same respectively."

He can do this by proving registration under the Act. However s. 24(a) provides that lack of registration doesn't render invalid any Mohammedan marriage which is otherwise valid. If he proves this then Ms. Chelangat will be guilty of Bigamy and subject to criminal charges being preferred against her. This also has the effect of rendering her subsequent marriage to Mr. Hussein null and void.

(II)

Mr. Hussein and Ms. Chelangat.On the face of it their marriage is void for want of capacity. Under Islamic law a woman has to be single to contract a valid marriage. Apparently Ms. Chelangat was not by

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virtue of still being married Mr. Salim and thus she had no capacity to contract the marriage. Being void ab inition there can't be a suit for divorce based on it since a void marriage is no marriage at all and thus there's nothing to be dissolved by way of divorce. A void marriage is never a marriage either in fact or in law. Moreover a woman can't under islamic law have more than one husband. It's been said that a marriage under muslim law with a woman who has her husband alive and who hasn't been divorced by him is void.

References: 1. Hidyattullah, M: Mulla Prinicples of Muhammadan Law 16th Edition. 2. Shat, J: An Introduction to Islamic law. D. Mr. Swabri Salim's Suit for a Declaration of Nullity. (III)

The Nature of the Marriage.The fact that Mr. Salim has moved to the chief Kadhi's court to seek a declaration of nullity indicates that they were married under Islamic law over which the Kadhi's court has jurisdiction. Thus the issue of declaration of nullity is to be determined according to Islamic law. The applicable law is to be found in the Mohammedan Marriage and Divorce Registration Act and the Mohammedan Marriage, Divorce, and Succession Act.

(IV)

Null and Void Marriages under Islamic Law.The following are classed as void or voidable under Islamic law.

1. 2. 3. 4.

c. An Irregular/ Perceived Marriage.This is one where either: There were no witnesses. The woman was undergoing her Iddat. The man purports to marry a fifth wife. Marriage is prohibited by difference of religion.

No formal proceedings are necessary to end it and as between the parties themselves no rights will accrue. However the children of the union are deemed to be legitimate with all attendant inheritance rights thereof. Once there has been consummation the woman becomes entitled to her dower. d. Batil (Void) Marriage.The parties are related to each other within the prohibited degrees of consanguinity, affinity, or fosterage. Also occurs where there's an incapacity, which prevents them from consummating the marriage. Such marriage has no rights or duties being void ab initio. The children are deemed to be illegitimate with no inheritance rights whatsoever. Mr. Salim's suit.Therefore for Mr. Salim to succeed he must prove either that the marriage between Mr. Hussein and Ms. Chelangat is an Irregular marriage or a Batil marriage under Islamic law. He also has to prove that their (Salim and Chelangat's) marriage was valid in the first instance and was subsisting when she married Mr. Hussein. To wit he must prove that in

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relation to their own marriage the following requirements were met:It must be noted that failure to comply with any of the above requirements renders the marriage void under Islamic law, it becomes a Batil marriage. Thus if Mr.Salim can prove failure to comply with the above in the second marriage then he can succeed in obtaining a petition of nullity. He can also bring about criminal charges against Ms. Chelangat for the offence of Bigamy under s. 171 of the Penal code. E. Ms. Chelangat's Suit for Divorce. Mr. Hussein and Ms. Chelangat were married under Islamic law, it thus follows that a divorce must be guided by Islamic law as found in the Mohammedan Marriage, Divorce, and Succession Act and the Mohammedan Marriage, and Divorce Registration Act. (III) Divorce Under Islamic Law. The contract of marriage may be dissolve in any of the following ways: 1. By the husband at his will, without the intervention of the court. 2. By mutual consent of the husband and wife without court intervention. 3. By Judicial decree at the suit of the husband and/or wife. When the divorce proceeds from the husband its called Talak. When effected by mutual consent it's called Khula or Mubarat and depends on the terms of the contract of marriage between the parties. Stipulation by wife for right of divorce.In this instance its Ms. Chelangat who's suing for divorce. Under Islamic law an agreement may be made either before or after marriage by which it's provided that the wife should be at liberty to divorce herself in specified contingencies: 9. Husband's whereabouts unknown for a period of 4 years. 10.Failure of husband to provide for maintenance of the wife for a period of 2 years. 11.Sentence of imprisonment on husband for a period of 7 years. 12.Failure without reasonable cause to perform marital obligations. 13.Impotence of husband. 14.Insanity of husband. 15.Repudiation of marriage by wife. 16.Any other grounds recognised by Muslim Law. The grounds are independent of each other and on proof of any one of them a decree for dissolution can be made. (IV)

Ms. Chelangat's Suit.Her claim that Mr. Hussein didn't take care of her material and other needs falls under grounds (2) and (4) of the above mentioned contingencies. On these two grounds she has a good case for divorce and her action will succeed if she can prove them convincingly on a balance of probability to the court.

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It has been held that a husband can't be said to have neglected or failed to provide maintenance for his wife unless under the general Mohammedan law he was under an obligation to maintain her. It's also been held that she mustn't herself be guilty of breaching the contract of marriage. Thus the allegations of adultery against Ms. Chelangat with a certain Mr. Fadhili, leveled by Mr. Salim may result in her divorce petition being dismissed by the court. A husband to maintain his wife as a sufficient ground for divorce should note. Hence if Ms. Chelangat and Mr. Hussein are Anafi Moslems then she can't sue for divorce on this ground. Adultery.Sex entailing fornication or adultery is Zina and is forbidden under Islamic law. The offspring of such union is illegitimate and can't be legitimated by acknowledgement. If the adultery allegations are proven Ms. Chleangat is guilty of Zina and this can be a ground for divorce (Talak) by her legitimate husband, Mr. Salim. F. The 2 Marriages. (III) Mr. Swabri Salim and Ms. Najma Keya Chelangat. He says he married her in November 1998. The onus of proof is upon him to show that they were indeed married. This is in accordance with s. 3(4) of the Mohammedan Marriage, Divorce and Succession Act, which states: " In any such matrimonial causes or suits as aforesaid, the onus of proof of the principles of Mohammedan law shall be on the parties alleging the same respectively." He can do this by proving registration under the Act. However s. 24(a) provides that lack of registration doesn't render invalid any Mohammedan marriage which is otherwise valid. If he proves this then Ms. Chelangat will be guilty of Bigamy and subject to criminal charges being preferred against her. This also has the effect of rendering her subsequent marriage to Mr. Hussein null and void. (IV)

Mr. Hussein and Ms. Chelangat.On the face of it their marriage is void for want of capacity. Under Islamic law a woman has to be single to contract a valid marriage. Apparently Ms. Chelangat was not by virtue of still being married Mr. Salim and thus she had no capacity to contract the marriage. Being void ab inition there can't be a suit for divorce based on it since a void marriage is no marriage at all and thus there's nothing to be dissolved by way of divorce. A void marriage is never a marriage either in fact or in law. Moreover a woman can't under Islamic law have more than one husband. It's been said that a marriage under Muslim law with a woman who has her husband alive and who hasn't been divorced by him is void.

FAMILY LAW REVISION QUESTIONS G2

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The learned magistrate was justified in denying Waiganjo a divorce decree because all the grounds that Waiganjo was relying on were not proved beyond the standard required that is beyond reasonable doubt as was held in Maathai vs. Maathai1. Waiganjo had pleaded desertion and adultery of the wife. Desertion The Matrimonial Causes Act S8 (1)2 states, “A petition for divorce may be presented to the court either by the husband or the wife on the ground that the respondent has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition…” This means that for Waiganjo to allege desertion as a ground, three elements have to be proved by the petitioner: 1. The fact of separation; the parties must separate physically. There seems to be a physical separation between Waiganjo and Wangari when Waiganjo allegedly left the matrimonial home to look for a job in Nairobi in 1965. There must also be unjustified withdrawal from cohabitation without the consent of the other person. Cases Le brocq Vs. Le brocq – bolted husband out of matrimonial bedroom but continued to cook, wash etc for him. No desertion. Weatherly Vs. Weatherly – refused sex but she allowed him to sleep with other women. Continued with other m duty. 2. Intention to desert permanently; married people may at certain times have to live apart as a matter of necessity. For the petition to succeed, the petitioner must prove that the respondent had the intention to desert permanently. In this case, Waiganjo as the petitioner did not prove that Wangari had the intention to desert the home permanently. Relocating to Molo town did not mean that she had the intention to desert. Waiganjo left to look for a job in Nairobi as a matter of necessity since the family needed a source of income and cannot therefore be accused of desertion as Wangari claims. Leaving for work related reasons is, in our opinions, justified as in G vs. G3, where it was held that one would not be guilty of desertion where he or she was hospitalised because this hospitalisation was necessary. Similarly, leaving to look for work may be seen as a necessity. 3. Justifiable cause; sometimes the withdrawal may be justified by the petitioner’s own behaviour i.e. his conduct causes the respondent to desert. The withdrawal of Wangari may have been caused by Waiganjo’s absence and was therefore justified by the petitioner’s own behaviour. In this regard, it can be inferred that Waiganjo deserted Wangari and could not therefore 1

[1980] KLR 154

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Cap 150, Laws of Kenya (1964) 1All ER 129

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be granted a divorce. In Dickinson vs. Dickinson4 , the husband brought a mistress to the matrimonial home upon which the wife deserted him. The husband was found guilty of constructive desertion. Similarly, in Baker vs. Baker5, a husband induced the wife to think that he was committing adultery and the wife deserted him. This was also held to be constructive desertion on the part of the husband. The conducing conduct of the petitioner may also induce commission of a matrimonial offence by the respondent and such conduct may include desertion. When Waiganjo left to look for work in Nairobi, he may have induced Wangari to change the matrimonial home. Another conducing conduct can be derived from the fact that Waiganjo has taken another wife(1972 marriage)This fact may have induced Wangari to desert him and also to refuse to take him back. In Lander vs. Lander6 the petitioner used to communicate to his wife through a third party and he wrote to her that he would not inquire into her life and that she should not bother inquiring into his life. It was held that where the wife subsequently committed adultery he could not be granted a divorce on the ground of his own conduct. Adultery of Wife The court recognises that it is difficult to prove actual commission of adultery by way of direct evidence and courts have to rely on circumstantial evidence. In Maathai vs. Maathai, it was held that what the petitioner needs to prove is an inclination to commit the adultery coupled with the opportunity. This will be considered proof of adultery although it is a rebuttable presumption. In this case, there is no direct evidence to prove that Wangari was adulterous. However, children born when there is no possibility of sexual intercourse having taken place between the spouses before the gestation period may be proof of adultery (Preston Jones vs. Preston Jones7 ). Waiganjo claims that Wangari gave birth to four more children after their separation. His wife insists that the children are his and he has no basis for denying them. Since it is difficult to tell whose side of the story is true, a blood or paternity test would be the best way to ascertain this. However, in W vs. W8, the court held that it couldn’t force a person to submit to a blood test since this would border on assault. It also goes against the right to personal liberty. In this case, the man wanted a blood test to prove that the child his wife was pregnant with at the time of marriage was not his. Court refused because the wife was unwilling and because it would involve the child who was not a party to the proceedings. Furthermore, under the Evidence Act Cap ...