[2005] KEHC 1342 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NAIROBI

DIVORCE CAUSE 97 OF 2004

N.S.C…………………………………… PETITIONER

AND

K.K.B…….……………………….…….. RESPONDENT

J U D G M E N T

On 29th July, 2004 N.S.C, a British citizen, filed this Petition against K.K.B, a Kenyan citizen, for nullification of their marriage solemnized on 24th November, 2002 and which petition suit was dated 20th July, 2004.

The Petitioner’s marriage to the Respondent was conducted at Ramgarhia Temple under the auspices of E.A. Ramgarhia Board(Registered) Nairobi in accordance with the provisions of Sikh Customary Law as provided by Hindu Marriage and Divorce Act (Cap 157). A certificate of marriage number [particulars withheld] was consequently thereto issued by the said Board duly signed by the Chairman and the Secretary. Subsequently, the Petitioner and the Respondent established their matrimonial home along Rhapta Road in Westlands.

The Petitioner seeks for nullification of the said marriage to the Respondent on ground of non-consummation on the part of the Respondent as particularized in paragraph 12 of the said petition. Upon being served with a copy of the Petition and Notice to Appear on 7th August, 2004, the Respondent failed to enter Appearance or to file an answer within the requisite period. When the Petition came for hearing on 26th May, 2005 there was no appearance for the Respondent. The hearing therefore proceeded by way of an undefended cause in accordance with the Registrar’s Certificate issued on 2nd December, 2004.

I have carefully considered the testimony of the Petitioner. I have scrutinized and inquired into the alleged ground for nullification of the said marriage contained in the Petition suit. The Respondent is said to have refused and ignored all intimate sexual advances made by the Petitioner soon after marriage on 24th November, 2002 and during the honey-moon spent in Zanzibar. Even upon return to the said matrimonial home, the Respondent refused, ignored and neglected the many attempts that the Petitioner made to consummate the marriage by declining, evading and deliberately avoiding any sexual encounter with the Petitioner. The said Respondent subsequently on 21st May, 2003 on her own volition, deserted the matrimonial home never to return.

I am satisfied that the Respondent has without cause failed to consummate her marriage with the Petitioner, notwithstanding the many sexual attempts and overtures made by the Petitioner since solemnization to date. I am satisfied that the Petitioner has not in any manner whatsoever contributed to the said lack of consummation and that in all respects the Respondent is not interested in the said marriage, having on 21st May, 2003 deserted the matrimonial home.

Consummation of marriage is an essential fundamental in the entire foundation structure of any matrimonial union. Thus failure of consummation of marriage is one of the principal grounds for nullification of a marriage as provided under section 11 of the Hindu Marriage and Divorce Act (Cap 157) and section 14 of the applied Matrimonial Causes Act (Cap 152). A marriage is said to be consummated as soon as the parties have sexual intercourse after solemnization; see Bromley’s Family Law 8th Edition at page 86. I am satisfied that on the basis of tendered evidence the Respondent has willfully and without any reasonable cause refused to have any sexual intercourse with the Petitioner.

Wilful refusal to consummate marriage, as was held in Kaur ---V- Kaur (1972) 1 AII E.R. 292 renders such marriage voidable and may at any time be annulled by the court upon application by the aggrieved party. As was held inDe Reneville -V- De Reneville (1948) P. 100;

“ a voidable marriage is one that will be regarded by every court as valid subsisting marriage until a decree annulling it has been pronounced by a court of competent juridiction.” Per Lord Greene MR at page 111.

I am satisfied that there has not been any connivance or condonation on the part of the Petitioner and further that no collusion exists between the Petitioner and the Respondent. Lastly, I am satisfied that the Petition has not been presented or prosecuted in collusion with the Respondent and further that there has not been unreasonable delay in presenting or prosecution the Petition.

I am satisfied on the basis of the evidence adduced that the case for the Petitioner has been proved on the balance of probabilities, this to me being the expected standard of proof in respect of nullity proceedings. I hereby therefore pronounce a decree of nullity by reason of non-consummation of marriage and order that the marriage between the Petitioner and the Respondent be and is hereby annulled and dissolved. A decree nisi shall henceforth issue, the same to be made absolute after expiration of one month hereof

I make no orders as to costs.

It is so ordered.

DATED, DELIVERED and SIGNED at Nairobi this 16th day of June, 2005.

P.J. KAMAU

JUDGE.