[2014] KEHC 2273 (KLR)
The court found that the respondent deserted the petitioner in 2002 and that the parties have not lived as husband and wife since then. The evidence established that the marriage had irretrievably broken down, satisfying the grounds for divorce under both the repealed Hindu Marriage and Divorce Act and the current...
Source-derived case information.
- Citation
- [2014] KEHC 2273 (KLR)
- Parties
- Applicant: S S. K; Respondent: S S B
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 4 of 2014
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage annulled and decree of divorce issued
- Legal Topics
- Divorce, Hindu Marriage, Desertion, Irretrievable Breakdown, Child Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S S. K
Applicant
S S B
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent deserted the petitioner for at least three years prior to the filing of the petition.
- 2 Whether the marriage has irretrievably broken down under the Marriage Act 2014.
- 3 Whether the petitioner is entitled to a decree of annulment and divorce.
Ratio Decidendi
The court found that the respondent deserted the petitioner in 2002 and that the parties have not lived as husband and wife since then. The evidence established that the marriage had irretrievably broken down, satisfying the grounds for divorce under both the repealed Hindu Marriage and Divorce Act and the current Marriage Act 2014. The respondent did not contest the petition, and the petitioner proved his case on a balance of probabilities. Accordingly, the marriage was annulled and a decree of divorce issued. Custody of the child remains with the respondent, and the existing maintenance arrangement continues.
Court Disposition
petition allowed; marriage annulled and decree of divorce issued
Orders
- The marriage between the petitioner and respondent is annulled.
- A decree of annulment and divorce shall issue pursuant to section 60 of the Marriage Act 2014.
Full Case Text
Judgment text and source record
11 paragraphs
IN THE HIGH COURT OF KENYA AT KAKAMEGA
DIVORCE CAUSE NO. 4 OF 2014
S S. K …………………………….……… PETITIONER
V E R S U S
S S B …………………………... RESPONDENT
J U D G ME NT
In his petition dated 15. 5.2014 the petitioner is seeking divorce on the ground that the respondent has deserted the matrimonial home and that he has been denied conjugal rights. The petitioner testified that they got married in 1991 under Hindu Law. They had one son (D K). They lived together in Kakamega. In 2002 the respondent left him and went away with all her belongings. Since then they have never lived as husband and wife. The parties later entered into an agreement whereby the petitioner paid the respondent KShs.1. 2 million plus advocate’s fees. Under the agreement the respondent was free to remarry. The petitioner undertook to pay maintenance for the child agreed at KShs.10,000/= per month.
Section 10 of the now repealed Hindu Marriage and Divorce Act gives the grounds for divorce under that Act. Section 10 (b) states that a divorce can be granted if the respondent has deserted the petitioner for a period of at least three (3) years before the petition is filed. Currently under the new Marriage Act 2014 section 70 gives the grounds for dissolution of a Hindu marriage. One of the grounds is that the marriage has irretrievably broken down and another one is desertion. It is clear that the parties parted ways from 2002 and to date they do not live as husband and wife. The respondent did not contest the petition although she was served. The petitioner does not intend to have custody of the child and I do order that the child shall stay with the respondent and the existing arrangement shall continue. From the evidence on record I am satisfied that the marriage has irretrievably broken down and there is no hope of reconciliation. I do find that the petitioner has proved his case and the marriage is hereby annulled. The petitioner and the respondent shall henceforth cease to be husband and wife. A decree of annulment and divorce shall issue in pursuant to section 60 of the Marriage Act 2014. Copies of the certificate shall be sent to the Registrar as per the requirements of section 60 of the Act. There shall be no orders as to costs.
Delivered, dated and signed at Kakamega this 17th day of October 2014
SAID S. CHITEMBWE
J U D G E