MGD v MKB [2017] KEKC 9 (KLR)
- Citation
- [2017] KEKC 9 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Kadhis Courts
- Posture
- Divorce Petition / Judgment
- Case number
- Divorce Cause 44 of 2017
- Language
- English
More details
- Court
- Kadhis Courts
- Posture
- Divorce Petition / Judgment
- Case number
- Divorce Cause 44 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant's evidence of cruelty, lack of maintenance, and failed reconciliation attempts established that the marriage had irretrievably broken down according to Islamic law. The respondent's absence and failure to contest the allegations further supported the applicant's case. The court also held that the dowry of two cows, as agreed, remained unpaid and was therefore due. The marriage was dissolved on the ground of faskh, and the respondent was ordered to pay the dowry within 30 days.
Court disposition
Marriage dissolved; dowry ordered to be paid.
Orders
- This marriage is hereby dissolved as requested by the applicant on faskh ground.
- The applicant should observe the eddah period of three months starting from 22nd August 2017.
- Divorce certificate to be issued on 22nd August 2017.
- The respondent is ordered to pay two cows as dowry within 30 days from 22nd August 2017.
02
Material facts
Parties
MGD
ApplicantMKB
RespondentAmounts and remedies
- Dowry (number of Cows): 2
03
Procedural history
Posture
Divorce Petition / Judgment
04
Questions and positions
Legal issues
- 01
Whether the court should dissolve the marriage as prayed by the applicant.
- 02
Whether the applicant is entitled to payment of dowry of two cows.
Party arguments
- Applicant
- The applicant alleged that the respondent was irresponsible, failed to provide maintenance, was cruel, assaulted and disrespected her, leading her to leave the matrimonial home for over nine months. She argued the marriage had failed and lost meaning. Her witness confirmed these claims and stated that reconciliation attempts before elders failed due to the respondent's absence.
- Respondent
- The respondent did not appear before the court and did not present any argument.
05
Court’s reasoning
Legal principles
- 01
Holy Quran, Surat Ar-Rum verse 21; Hadith of Prophet Muhammad (PBUH), Muslim
Marriage should be based on tranquility, love, and care as per the Holy Quran and Hadith. Where these are absent and reconciliation fails, dissolution is permissible.
- 02
Holy Quran 4:4
Dowry is a compulsory gift to the wife as agreed upon at marriage, and must be paid by the husband.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant's evidence of cruelty, lack of maintenance, and failed reconciliation attempts established that the marriage had irretrievably broken down according to Islamic law. The respondent's absence and failure to contest the allegations further supported the applicant's case. The court also held that the dowry of two cows, as agreed, remained unpaid and was therefore due. The marriage was dissolved on the ground of faskh, and the respondent was ordered to pay the dowry within 30 days.
Obiter and limits
- Parties in marriage should overlook each other's shortcomings and appreciate good qualities for a happy married life.
- Reconciliation efforts are important but, if unsuccessful, the court must intervene to resolve the dispute.
Court disposition
Marriage dissolved; dowry ordered to be paid.
- This marriage is hereby dissolved as requested by the applicant on faskh ground.
- The applicant should observe the eddah period of three months starting from 22nd August 2017.
- Divorce certificate to be issued on 22nd August 2017.
- The respondent is ordered to pay two cows as dowry within 30 days from 22nd August 2017.
Source and reliance status
Kadhis Courts
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Kadhis Courts
Judgment
REPUBLIC OF KENYA
IN THE KADHI’S COURT AT GARSEN
DIVORCE CASE NO 44. OF 2017
1. MGD.......................................................................APPLICANT
VERSUS
2. MKB......................................................................RESPODENT
JUDGMENT
In this divorce case dated 23rd JULY, 2017 the petitioner prayed for:
1- Dissolution of the marriage.
2- Payment of dowry.
The Proceeding of this suit proceeded ex parte. The applicant alleged that the respondent has been very irresponsible and failed to provide maintenance. His cruelty lead to assault and disrespect . For this reason, the applicant decided to leave her matrimonial home for over 9 months. In her views this marriage has lost meaning and failed.
To support the issue the plantiff availed 1 witness namely: GD. The witness testified confirming the petitioner’s claim concerning the issue stressing that what the applicant said was true. In addition dispute this has been brought before area elders for reconciliation but was not successful because of the defendant’s absence. thus, the applicant decided to file this case before this court.
I have noted the issue clearly and I found that the respondent would not appear before this court. Upon hearing, applicant herein the matters to be determined are:
(a) Is the honorable court entitled to dissolve the marriage as per applicant's prayers?
(b) Is the plaintiff entitled to dowry of two cows?
returning to issue(a ) It is clear to this court that the view of the evidence adduced by the applicant it is evident that this marriage is not worthy according to the Holy Quran and the Hadith of prophet SWALLAH ALLAHU ALLYHI WASALLAM .Allah says in the holy al Qur’an surat arum verses 21(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.)
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Abu Hurairah (May Allah be pleased with him) reported: Messenger of Allah (PBUH) said, "A believer must not hate (his wife) believing woman; if he dislikes one of her characteristics he will be pleased with another"[Muslim]. Commentary: This Hadith also contains a very wise counsel for a happy married life. It tells us that every person has certain good qualities as well as some shortcomings. Man has been advised to overlook the shortcomings that he does not like in his wife and appreciate her good qualities. Similarly, a woman is advised to ignore the shortcomings of her husband and admire his good qualities.
Back to issue (b), Payment of the dowry 2 heads of cows. According to Islamic law, the husband to pay dowry as per consent between them about it as clearly in 4/4 (‘and give women their dowries as a free gift’). But if they of themselves be pleased to give you a portion thereof, consume it with enjoyment and pleasure) But unfortunately the respondent has not yet paid full.
On this basis I hereby order that:
1- This marriage is hereby dissolved as requested by the applicant on Faskhuground.
2- That the applicant should wait for eddah period of three months starting from today 22nd August 2017.
3 – Divorce certificate to be issued today 22nd August 2017.
3- It is compulsory for the respondent to pay (2 cows) as the dowry within 30 days from today 22nd August 2017.
These are order of this court.
Read and delivered this 24th day of JULY 2017
in the presence
Kadhi Mursal Mohamed
Court Assistant Goracho Abdallah.
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