FAA v ADA (Divorce Cause E051 of 2023) [2024] KEKC 9 (KLR) (15 March 2024) (Judgment)
Neutral citation:
[2024] KEKC 9 (KLR)
Republic of Kenya
Divorce Cause E051 of 2023
G Adan, PK
March 15, 2024
Between
FAA
Petitioner
and
ADA
Respondent
Judgment
1.The petitioner hereinabove seeks for divorce, custody of the minor, future maintenance and facilitation of minor to the hospital, eddat maintenance, shelter and household good and cost of the suit.
2.She sought these orders on grounds of allegation over the respondent communication and sending lovely messages with a woman outside the marriage through phone, lack of communication, disrespect, abusive language on his part, and denial of conjugal bed for about of two years and insufficient provision.
3.The respondent upon served with the petition he denied allegation over non-provision of maintenance, communication with a woman outside the marriage, lack of communication, disrespect, dishonest, abusive language and denial of conjugal bed.
4.But he admitted the marriage and the child blessed out their union. He also wrote a declaration divorcing the petitioner with all the three talaqa pronouncing three talaqa in a separate paraphs but in one letter dated 13th November 2023. Whereas he offered to provide kshs 10000 per month towards maintenance of the child, medical cover, affordable school fees, clothing and other needs of the child within his ability. He further agreed to the prayer for the custody of the minor to be given to the petitioner at the case conference session on 7th December 2023.
5.He further said that he is ready and willing to assist the petitioner with provision to his ability despite she has been adamant and does not want to understand his financial constraint, while she has means earning salary more than him.
6.He avers that they have equal responsibility towards the child as provided in article 53(e) of the constitution of Kenya 2010. Which provides that every child has right to parental care and protection including responsibility of the mother and father to provide for the child whether they are married to each other or not. Thus, he avers that the petitioner is equally mandated and obliged to provide for the minor in equal measures as the respondent. He also avers that currently taking care of other siblings who are not in any formal employment and thus the Kshs 20,000 she has prayed for is beyond his financial ability.
7.He also counter claim against the petitioner for denial of his access to the child by the petitioner on several occasion without any reasonable cause. He relied on provision of children Act 2022, which provides that all parents have equal rights to access the child and the same the child has rights to access the parents equally. He avers that she has contravened this provision.
8.He further avers that as much as he has been caring, loving and available for his family, she has been so aggressive, shown cold love towards him to the extent of denying him conjugal rights against the tenants of Islamic sharia law.
9.Wherefore, the respondent avers that this instant matter lacks merit and does not warrant this court to grant some of the prayers sought which are detrimental to the respondent.
10.Issues of determination are:a.Whether the two parents have shared responsibility in terms of providing maintenance of the child of marriage?b.Whether the amount of Kshs 10,000 offered by the respondent as maintenance is sufficient or not?c.Whether facilitation of child to the hospital will as well catered for in this amount offered as maintenance, or will be treated as separate provision?d.Whether the parties would share household goods?e.What orders can be issued by this court?
11.Pw1 (petitioner) testified during the hearing, that the amount said to be offered by the respondent as maintenance would not be sufficient to cater for the rent of one-room house to serve as shelter for her child which is Kshs 6000 per month, therefore, the remaining amount is Ksh 4000 which is not sufficient for the upkeep of the child. Over the issue of sharing responsibility of providing the child, she argued that it is upon the father as in Islamic law. However, the Kenya Constitution 2010 allows in article 53(e), sharing of responsibility of the child upon the two parents towards the child, she avers that she professes Islamic faith and thus abide to Islamic law over the issue of child’s provision, which requires only the father to cater for all needs of the child.
12.But she also contends she cannot leave her child even if he gives insufficient provision, she said that she has been providing her child, since whatever the respondent is and was providing not sufficient to cater for all the needs of the child.
13.Nevertheless, the RW1 (the respondent) argues that the amount he offered is enough for one child, who is of minor age. Despite the petitioner also avers to be having other responsibility of paying school fees for her sibling and further claiming that the said child needs extra care involving her into extra expenses of employing maid to assist in taking care of the child. In reply to this RW1 also argued, in the case that the child requires extra person to take care, as he testified having a mother who is retired nurse who can take care of the child during daytime and brings back to the mother (PW1).
14.Where again pw1 decline her instant claim, stating that no need of taking the child forth and back unnecessarily as she has been doing employing some one taking care of the child without the respondent’s assistance. She declared on this issue that she will carry the burden if the respondent is not willing to assist. On this specific issue, it is here that the respondent has offered option but the petitioner declines the child be taken forth and back, which to her is unnecessary but to this court is one of the alternatives of assistance.
15.Now the question arise out of this argument of shared responsibility over the provision towards the needs of the child, is that whether Islamic law only oblige the father to provide for the family and not the mother? Whether the amount offered is sufficient or not?
16.In Islamic law men are protectors and maintainers of women due the maintenance duty imposed on men by Allah (SW). in Quran 4:34,Therefore, men have a greater and more difficult responsibility in supporting their families. The prophet of Allah stated,
17.Man should give dower to his wife upon consummation of marriage. The dower is given in any material form preferred by the wife and within the ability of the husband, and it can be paid instant in full or installment, or it can be differed to later date, depends on agreement of both parties. The woman may also return part of the dower to the husband.
18.It is also a duty upon the husband to provide maintenance for his family out of his means and affordability. This maintenance includes feeding, clothing, shelter, providing other services, health care and all other expenses that corroborate the well-being of the home. This is made obligatory on the husband by the Quran, the Prophetic traditions and the consensus of Muslim scholars.In the Quran 2:233,In another verse of Quran, Q65:6,In the prophetic traditions which support maintenance of child by the father are that narrated by Mu’awiyah al-Qushairy, may Allah be pleased with him,
19.Failure to give all this provision intentionally amounts denial of (wife’s and child’s) right and also amounts to sin before Allah. Except in the case, where the woman proves recalcitrant (Nushuz) to her husband for no cause. However, in that scenario where a woman becomes recalcitrant to the husband, the children of their marriage should not suffer at the expense wife’s defiant to the husband authority. The children should be provided despite mother’s stubbornness to the father’s authority.
20.From above, it is clear that the husband has financial obligation to provide for his family including the children. Although, the wife may come in for support in case the husband is unable to work, or has insufficient income.In support of this contention, Zaynab (R.A.) the wife of 'Abdullah Ibn Mas’ood (R.A.) asked the Prophet (P.b.u.h) said, "O Prophet of Allaah, is it permissible and acceptable for me to spend the Zakat (obligatory charity) on my poor husband and the orphans of my brother who are under my protection?” Thereupon, the Prophet (p.b.u.h) said to her: "You will receive a double reward (for that): One for helping relatives and the other for giving Zakat."
21.However, it is not obligatory on the wife, because her wealth belongs to her alone. She has independent liability despite her other matrimonial duties of rearing children and other non-financial duties towards the family. It is the husband who is obliged to spend on his wife, children and household. It is not obligatory upon a woman to work in order to provide for her children if she has a husband of income.
22.Because, it is the duty of the husband to provide for his wife and children. Even if article 53 (e) of the Constitution of Kenya 2010, provides shared responsibilities of the parents towards the child, Islamic law, obliges the father of the child to take more responsibility on provision of maintenance especially if he is a man of means. As this is one of the Islamic religion principles which cannot be changed by man-made laws.
23.As the question on whether amount offered is sufficient or not? The respondent produced his pays slip which the petitioner did not dispute as not the genuine one. She has not said any question to veracity of the said pays slip. Despite the amount he pledges to offer, he also has taken up other miscellaneous expenses may arise as needs of the child. Like facilitation of the child to the hospital for clinic visits, school fees incase the child may enroll in school, clothes, and other expenses. Therefore, to this court the amount offered together with other support he said ready to give, is sufficient for upkeep of the said child depending on financial capacity of the respondent balancing with the needs of the child at the moment.
24.On way forward on how to determine the issue affecting the child regarding the delayed speech. The doctor was called in court to give expert evidence on how best the issue of delayed speech (autism) will be treated. The doctor recommends that the child require at least 3 visits in a month to their clinic for speech therapy. But because the child lives with the mother in Moyale which is far from where the clinic is in Nairobi. It is not possible for them to attend the said service as required 3 visits in a month due to far distance, but they have reach agreement to seek alternative ways on whether the child may be staying with the father’s relative in Nairobi for some times and thereafter taken back to Moyale. For the best interest of the child the petitioner has to take the said child to where the father is residing with other relatives for the treatment of the same until the child is recovered instead of going and back to Moyale, which has already proved to be burden and not doable.
25.About the question of household goods, the household items are considered part of matrimonial property under Islamic law, and in common law. Any useful item acquired during the marriage period by both spouses directly or indirectly or acquired through gift such property is considered part of matrimonial property under Islamic law (Sahid, 2016; Yeates, 1999).
26.Section 7 of the matrimonial property act, states, “Ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition, and shall be divided between the spouses if they divorce or their marriage is otherwise dissolved”.
27.It is permissible for any spouse to claim their share in matrimonial property during the marriage or after its termination, based on the respective share of their contribution to its accrual (El Saadawi, 1982; Majzub & Mansor, 2012).
28.Contribution means, under section 2 of the Act, “…monetary and non-monetary contribution and includes: - (a) domestic work and management of the matrimonial home; (b) child care: (c) companionship; (d) management of family business or property; and (e) farm work”.
29.The parties in this case, are professing Islamic faith, and they were married under Islamic law, hence their matrimonial property may be governed by Islamic law in all matters relating to it. This as has been provided under section 3 of the Act, which states. “A person who professes the Islamic faith may be governed by Islamic law in all matters relating to matrimonial property”.
30.The household goods mentioned herein are Bed, Mattress, cooker, Television (T.V) screen, and T.V stand, Sofa set. So, this question on who takes what from the list, the Respondent argued that for the reason the petitioner requested for divorce, he would only give whatever items may be used for benefits to the child. That is bed, mattress, cooker and utensils. He objected to give Television and its stand. He further said that T.V. is not good for the said child as according to him the Doctor discourage use of T.V. by the child. But the petitioner opposes these claim as she contends that the Doctor who said so was not specialized doctor for such case. They demanded for the said doctor to be called in court to give evidence over the same.
31.Lastly, the Doctor’s evidence was that T.V. can be used by the said child as a support. But not a such T.V. itself is not required for that purpose. Other items instead can be used to watch the targeted film created for the purpose of helping the child in speech growth. So, other items can be facilitated at home to enable the child watch the said film. The doctor did not a such recommended use of T.V. on itself, it is recommended that a special film be required which cannot be watched throughout the day. It will be used by the child under supervision of someone while doing so. So, the respondent has to look for an alternative item instead of T.V. if he cannot give out the said T.V.
32.Finally, the orders issued are:a.Thatthe parties of this marriage are confirmed divorced by declaration issued in writing by the respondent divorcing the petitioner with three talaqa in a separate wording but in one piece of paper, which the court considered it as one divorce. Meaning that two chances have left for them may if they so agree to resume their marriage within the eddat period or in the event the eddat period elapse they may resume on new nikah and new dowry if they so wish.b.Thatin the event of this divorce the petitioner shall observe eddat period of three months and ten days from date of divorce on13th November 2023, in which she will not marry any other person until the period ends.c.Thatthe custody of the child of their marriage is given to the petitioner but with unlimited access for the respondent. for the purpose taking the child to the said hospital the child can stay with the father until such time the hospital releases the child.d.Thatthe respondent shall provide Kshs 10,000 at the end of every month as upkeep of the child together with other expenses required for the child use according to his means and capacity.e.Thatthe petitioner shall take bed, mattress, cooker and other kitchen utensils from the household goods, but the rest of the items be remaining with the respondent.f.Thatthe respondent shall provide alternative tool for watching film designed for the purpose to help the child speech growth, instead of T.V.g)In any case who ever not satisfied with this decision can have right of appeal within 30 days from this date judgement.h.No other orders granted.
DATED, DELIVERED AND SIGNED AT MOYALE ON 15TH DAY OF MARCH 2024.Hon. Galgalo Adan (Principal Kadhi)In the open court and in the presence of parties:1. Fardosa Adan Ali – the petitioner2. Abdikadir Dulacha – the respondentAndJattani Wako - court assistant