[2009] KEHC 1751 (KLR)
The court found that the marriage between the petitioner and respondent was not consummated due to the respondent's willful refusal, without any fault on the part of the petitioner. The petitioner's evidence was unchallenged and credible. The court was satisfied that the legal requirements for a decree of nullity...
Source-derived case information.
- Citation
- [2009] KEHC 1751 (KLR)
- Parties
- Petitioner: B.D.S; Respondent: D.S
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 81 of 2008
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- Decree nisi of nullity granted; marriage declared null and void.
- Legal Topics
- Nullity of Marriage, Non Consummation, Willful Refusal, Hindu Marriage, Marriage Act, Decree Nisi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B.D.S
Petitioner
D.S
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the marriage between the petitioner and respondent was consummated.
- 2 Whether the respondent willfully refused to consummate the marriage without fault on the part of the petitioner.
- 3 Whether the petitioner is entitled to a decree of nullity under the Marriage Act.
Ratio Decidendi
The court found that the marriage between the petitioner and respondent was not consummated due to the respondent's willful refusal, without any fault on the part of the petitioner. The petitioner's evidence was unchallenged and credible. The court was satisfied that the legal requirements for a decree of nullity under the Marriage Act were met. Accordingly, the marriage solemnized on 29th February, 2008 was declared null and void, and a decree nisi of nullity was granted, to be made absolute within 45 days.
Court Disposition
Decree nisi of nullity granted; marriage declared null and void.
Orders
- The marriage solemnized on 29th February, 2008 is declared null and void.
- A decree nisi of nullity is granted, to be made absolute within 45 days from the date hereof.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Divorce Cause 81 of 2008
B.D.S................................ PETITIONER
VERSUS
D.S.................................RESPONDENT
JUDGMENT
The Petitioner is a Hindu female and solemnized her marriage with the Respondent under the Marriage Act on 29th February, 2008.
As per the family arrangements, their marriage under the traditional Hindu Rites was scheduled on 20th July, 2008. But the Respondent after the solemnization of the aforesaid marriage refused to have any connection with the Petitioner. He also refused to undergo the Hindu ceremony of marriage and take her to matrimonial home in Nairobi after the aforesaid marriage.
The Petitioner, despite her approaches made to the Respondent and her willingness to consummate the marriage was rebutted by the Respondent. He did not give any heed to the efforts made by community elders and their parents to reconcile the parties.
He just denied to have any relation with the petitioner and refused to give her any rights as a wife.
This in short is the sad story depicted by the petitioner in her testimony which remained uncontraverted.
She, with remorse, said that there is no hope for reconciliation and reiterated that the marriage was not consummated by willful refusal by the Respondent without any fault of hers.
Both the petitioner and respondent are residents of and domiciled in Kenya.
The Petitioner refused that she has colluded with the Respondent in presenting or prosecuting this petition.
In the premises of aforesaid, I rely on the petitioner’s evidence and I am satisfied that the marriage remained unconsummated due to willful refusal to do so by the Respondent. I declare thus the marriage solemnized on 29th February, 2008 as null and void by granting decree nisi of nullity which decree shall be made absolute within 45 days from the date hereof.
The Petitioner did not pray for cost and thus I do not make any order thereon.
Date, Signed andDelivered at Nairobi this 17th day of September, 2009.
K.H. RAWAL
JUDGE
17. 9.2009