[1997] KEHC 59 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 5359 of 1990

FARHANA D/O ZAFARULLAH KAHN AND ANOTHER.......... PLAINTIFF

VERSUS

MOHAMMED SHAFIQ QURESHI.......................................... DEFENDANT

JUDGEMENT

The first plaintiff is a daughter of the second plaintiff.The first plaintiff was married to the defendant on 16. 8.87 underMohamedan Law after which they established a matrimonial home inKisumu, Haq Mehr of shs.10,000 was agreed and was payable to thefirst plaintiff. It is the first plaintiff's case that on thenight of 3. 10. 88, defendant beat her and abused her throughout thenight and that on the following morning she was chased away fromthe matrimonial home and sent to her father in Nairobi. She statesthat defendant bought, her bus ticket and put her on a bus to

Nairobi and that she Carried a few things in a paper bag leaving all furniture, clothes and jewellery behind. She received a Divorce Certificate on 19. 7.89. The plaintiff claims from the defendant Shs.7, 200 being the Maintenance for one year from 4. 10. 88 until 18. 1089 She also claims the return of her goods specified in paragraph 9 of the plaint or their value of shs.195,750/-.

The second plaintiff states that in consideration of the defendant agreeing to marry his daughter, he in accordance with the customs incurred expenses to finance the engagement and marriage ceremonies and in paying gifts to various people. The expenses are itemized in paragraph 10 A-D of the plaint Para A are the expenses incurred on the engagement day in the sum of sh 30,000/-. Para Bare the expenses of shs 81500 incurred on the wedding day.Para C are gifts to different relative valued at shs 66,400/-Para D are the gifts to the defendant worth shs 17,000The first defendants total claim is shs 390,650

Defendants pleads that he is not liable to pay the maintenanceas first plaintiff deserted the matrimonial home. Alternatively, he avers that the claim is exorbitant.

Regarding the first plaintiffs goods, first defendant pleads that first plaintiff left some goods in three cartons which he has not opened. About the jewellery, he pleads that first plaintiff never handed them over to him or to his parents. In his evidence he denied that the jewellery was left in the house and stated that although he had a safe, it only contained passport and other personal items listed in paragraph 9 of the plaint. He admits that the following things are in the house:

one double quilt

2 pillows

4 pair of sandals

4 handbags

2 small suits cases-not letter

1 prayer mat

1 double bed with mattress

1 dress table

1 stool

1 cupboard

3. used clothes in the cupboards He testified that he is ready and willing to return those items.

Defendant pleads a set off of shs.270,000 against the secondplaintiffs claim being the amount he expended on gifts. He has acounter claim of Shs. 50,980 against the second plaintiff being the money he lent to the second plaintiff.

There is no dispute that maintenance is payable for divorcedwomen under Muslim law. Paragraph 241 of the Holy Koran decreesso. That claim is resisted on the ground that she left thematrimonial home voluntarily and failed to return to the matrimonial home. Defendant testified that she left Kisumu under the pretext that he was traveling to Nairobi to consult her doctor and to attend a relatives wedding.

It is admitted by the defendant that the marriage was a happy one for one or two months and thereafter problems arose in the marriage. It appears from the defendants evidence that the first plaintiff was not satisfied with the communal living the couple living with the defendants parents in one house, One month after the marriage, she refused to be sitting with defendants family during meals. Her position according to the evidence is that she wanted to do her things with her husband only. By 4. 10. 88 when he, left first plaintiffs relationship with her husband had deteriorated. First plaintiff states that he was beaten and abused on the night of 3. 10. 88 at the instigation of defendants mother for refusing to attend a dinner at somebody's house where she was not invited and thrown out of the house on the following morning. This is denied by the defendant. She states that after she leftdefendant did not contact her for reconciliation and hertelephone calls to Kisumu were not answered. Defendant admits thathis parents did not make any attempts to contact his wife parentsfor reconciliation. It is the defendant who applied for divorce.It is incredible that if she had left peacefully she would haverefused to go back. If she was wanted, the marriage having beenarranged, it is unlikely that defendants parents could have failedto contact her parents. Further, it is unlikely that defendantwould have applied for divorce considering that problems started inthe marriage hardly two months after the marriage I find theevidence of the first plaintiff credible that she was infact thrownout of the matrimonial home. Even if she left peacefully with anintention of terminating the marriage, there were good reasons todo so in that the marriage had not succeeded. I am satisfied thatshe is entitled to maintenance. The first defendant runs apartnership business with his father in Kisumu. They havefirestone Dealership with Firestone for the whole of Nyanza Province. Defendant estimated the annual turn over as between Shs18-20 million The Shs.6000 per month claimed as maintenance isquite reasonable. I would therefore allow her claim for maintenance of Shs. 72,000 for 12 months.

As for the claim for the return of her goods, the letter ofdemand for the return of the goods is dated 1. 9.89 A list of goodswas demanded by defendants lawyer and supplied by plaintiffslawyers dated 18. 10. 89. The defendant’s lawyers by a letter dated 5. 29. 8.90 denied that first plaintiff left the items claimed.Defendant’s lawyers however admitted that furniture consisting of one double bed, dressing table with stool and a cupboard were left by the plaintiff They did not call on the first plaintiff tocollect the goods. Instead they made a counterclaim of Shs 270. 000and intimated that if the claim of shs.270, 000 was not settled,they would sell the furniture and claim the balance as a civildebt. It is now clear that the counter-claim of Shs 270,000 is made against the second defendant and not against the firstdefendant.

There is no dispute that under Muslim law the marriage giftsa man gives to his prospective wife belongs to her and that giftsacquired by the wife before the marriage or after the marriagebelongs to her. The defendant case is that other than for theitems admitted, the others were carried away by the plaintiff.I have found the evidence of the first plaintiff that she wasthrown out of the matrimonial home credible in the circumstances ofthe marriage. Plaintiff states that she was put in a bus to Nairobi by the defendant and that she carried a few clothes in a paper bag. Defendant states in his evidence in cross-examinationthat first plaintiff carried a big suit case and a small bag.First plaintiff states that all the goods she is claiming werebought for her by her father except the jewellery which was boughtby defendant mother and given to her as a gift. It is her casethat defendant asked for the jewellery and kept the jewellery inhis safe. Defendant admits that in Asian Community the bride's jewellery is the most valuable item which must be safe guarded.But he explains that although he has a safe in the bedroom, firstplaintiff chose to be keeping her jewellery in the cupboard.Defendant does not plead in his Amended defense that firstplaintiff carried away the goods she is claiming or that the goodswere not in the house. I note further that defendant denied in hisevidence that the jewellery is in the house. However, he does notsay in his entire evidence that the first plaintiff took with herthe goods claimed or that she did not have them. I note also thatthe defendant’s letter dated 29. 8.90 in reply to the demand letterdefendants advocates stated that first plaintiff carried awayornaments belonging to the defendant. However defendant did notsay in his evidence that first plaintiff carried any of herornaments.

Although defendant does not say that first plaintiff carriedsome of the goods she had claimed, it is unlikely that she couldhave carried any goods with her on 4. 10. 88. If she was thrown outof the house as I have found, there was no time to park her goods.If alternatively she left for a journey to Nairobi with defendant’spermission without any indication that she was not going back, she could not have carried goods which would have aroused defendants suspicion that she was leaving for good more so when defendant had to escort her to the bus stage. The mode of transport (by bus)would not have been suitable for transportation of expensive goods or a heavy load.

In the circumstances of this case I believe the evidence that first plaintiff left all the goods she has claimed in thematrimonial home.

Defendant says that he is ready and willing to return the goods he has admitted as I observe earlier he did not offer toreturn them in the reply to the letter of demand. His reply to theletter of demand show that he was keeping the first plaintiffsgoods as a set-off to his claim against his claim against thesecond plaintiff. It is now over eight years since the goods were left with the defendant. Some of the goods like clothes etc must have been damaged by prolonged disuse. It is only just thatdefendant refunds their value. It is true that the value put toeach item is an estimate. Defendant states that the values shownare exaggerated. He did not recommend the reasonable values of theitems claimed.

The only valuable item is the jewellery which is shown to be worth104,000. Plaintiff supplied particulars of the jewellery on 8. 3.91on request by the defendant. The value of each piece of jewelleryshown in the particulars was not disputed during the hearing. therest of items are ordinary personal household goods with modestvalues attached to each. I accept the values shown against eachitem in the plaint as reasonable and find that the value of theitems claimed is shs.195,750

As regards the second plaintiff claim and the defendantscounter-claim against the second plaintiff what is claimed by eachart infact expenses incurred to stage the marriage. Mr. Khah for the defendant submits the gift given by parents of the spousesduring marriage are not recoverable as they are absolute giftsgiven freely. It is also his submission that lavishing gifts are not necessary for the celebration of a Muslim marriage.

On the other hand, Mr, Malik for the plaintiffs submitted thatclaim is tied to the marriage and since Muslims marriage is acontract all the expenses incurred by the second plaintiff was inconsideration of the defendant agreeing to marry the firstplaintiff. He submits that the natural assumption in MuslimMarriages is that the marriage will last and since defendantunilaterally terminated the marriage, he is liable to reimburse thewasted expenditure.

Muslims marriage like the English marriage is a contract butit is a special contract involving, as it does, strong interpersonal relationship between the bride and the bridegroom. It isnot an economic transaction. In this case, a marriage did infacttake place between second plaintiff's daughter and the defendant which lasted almost 2 years. Although ideally the marriage should last until death of either spouse, it is not always the case. That is why the Holy Quran in particular allows divorce. The marriage between first plaintiff and the defendant could potentially be dissolved and was indeed dissolved on 19. 7.89. To say that the defendant breached the contract of marriage unilaterally is to deny the defendant a holy right to dissolve the marriage. To claim reimbursement of the expenses incurred in the staging of a marriage which eventually fails is to attach an economic element to the contract of marriage and in my view contrary to public policy. Toallow the claim is tantamount to giving parents of spouses a rightof monetary investment in the marriage of their children. If suchclaims are to be allowed, spouses in broken marriages may waive theright to divorce to avoid paying such compensation.

I note that neither the second plaintiffs claim nor thedefendants counter-claim is based on Quaranic verses. I find that neither of them has any foundation in Mohamedan law or in common law and are indeed against public policy. Defendants counselsubmits that if second defendants claim is disallowed, the defendant abandons his counter claim against the second plaintiff.

The second plaintiffs claim should be dismissed. Similarly the defendant counterclaim should be dismissed. Neither should pay the other costs.

For the above reasons I allow the first plaintiffs claim and enter judgment for the first plaintiff against the defendant for a total of shs 267,750 (Shs 72,000/- + Shs 195750) plus costs and interest I dismiss the second plaintiffs claim with no orders asto cost I also dismiss the defendants counter claim with no order as to costs.

E.M GITHINJI

JUDGE

28. 5.97