LGN v MB [2018] KEKC 22 (KLR)

**_REPUBLIC OF KENYA_** **_IN THE KADHIS COURT AT HOLA_** **_DIVORCE CASE NO. 3 OF 2018_** **LGN..........................................................APPLICANT** **VERSUS** **M B......................................................RESPONDENT** **_JUDGEMENT_** This divorce matter was filled on 5th February, 2018 the applicant prayed for: 1- Dissolution of marriage. 2- Custody of the child. 3- Past maintenance. On hearing, the plaintiff claims that, her life with the respondent has never been a bed of roses as he has been very cruel, abusive, assaulting and threatening her, this caused her to leave her matrimonial home to her parents for over six months. The respondent failed to provide maintenance and communicate with the applicant . The applicant’s father has been providing maintenance for his daughter for all that time. The marriage is blessed with one daughter who is now 21/2years of age. The respondent took the daughter from the applicant by force without mutual agreement between them. To support the Issue the applicant availed 2 witnesses namely Bati Tuka and Ismail. They testified that, as elders they tried to settle the dispute but they failed. Upon cross -examination by the court the applicant said she can’t stay with the applicant as couples in harmony. On the other hand the respondent denied all applicants allegation saying that there was a woman behind this problem who insight her to break her marriage. He also claimed that she associates very much with his friends in his absence which is against his will .He availed one witness namely Wario who in his testifying said that the respondent disserted her matrimonial home, he tried by the help of elders to solve the dispute but their effort bore no fruit. The respondent asked the court to convince the applicant to come back to her matrimonial home. I have noted the issue clearly and I found that the respondent allowed his friends in his house at his absence and also permitted his wife to prepare food for them. The court has directed the parties to go for ADR within 10 days but the chance did not bear fruit. Upon hearing both parties herein and the witness availed in court by the both parties , the matters to be determined are: a) Is the honorable court entitled to dissolve the marriage as per plaintiff’s prayers? b) Custody of the daughter. (c ) Is the applicant entitled to previous maintenance ? Returning to issue (a) whether this court can dissolve the marriage as per plaintiff’s prayers? It is clear to this court that from the view of the evidence adduced by the applicant it is evident that this marriage is not worthily according to the Holy Quran and the Hadith of prophet SWALLAH ALLAHU ALLYHE WASALLAM .Allah saying in the holy al Qur’an surat arum verses 21(?????? ???????? ???? ?????? ?????? ???? ???????????? ?????????? ???????????? ????????? ???????? ?????????? ????????? ?????????? ????? ??? ?????? ???????? ???????? ??????????????) meaning : 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.) The prophets swalla ALLHU aleyhi wasalam said: (???? ??????????? ????? ???????? ????????????? ????? ??????????? - ???? ??????????? - ????? ???????? ????????? ????? ????????? ????? ???????? ?????? ??? ????????? ».) meaning : You feed her when you eat and cloth her when you cloth yourself and not hit her on her face and do not say may ALLAH deface you. And do not keep away from her except in the home. Back to issue (b) Custody of the child. I have noted that the interest and best environment to raise a child is the can easily access basic needs(shelter, health , food and education). In these situation the applicant lives in Witu and the respondent is staying in Malindi . We can find those basics in Malindi . Back to issue( c) Concerning the previous maintenance requested by applicant. Is the wife entitled to it upon her request before the court? The Muslim scholars have different opinions on that therefore the court has option to choose one from that different opinion which is more appropriate to apply on the reality ruling. Due to the financial situation of the respondent and the reliance on the doctrine of the Abu Hanifa, the court sees to drop down the previous maintenance on the respondent as the most appropriate in the application of the reality ruling. On this bases I hereby order that: 1- This marriage is hereby dissolved as requested by the applicant on condition that: a) The applicant should wait for period of eddah of three moths from today. b) Divorce certificate to be issued today. 2- Custody of the child is given the respondent and the applicant shall have reasonable access to her. This is orders of this court R/A 30 days **Delivered in court is day of 10 th April 2018** in the presence of Mursal M Sizi kadhi Court assistant Guracho Abdallah Plaintiff respondent