The High Court has declined to grant an estranged couple divorce ruling differences cited by the woman are minor and do not merit dissolution of their marriage.
The woman complained she wanted more children, but the man didn’t. She had also cited cruelty as a ground to secure divorce from the Kadhis court.
If we could turn back the hands of time…
However, Justice Justice George Dulu overturned a decision to dissolve the union saying quarrels the couple had were mild.
The couple had been together for eight years and have one child.
In the case, BAF, wife to ASH, filed for divorce case saying she could not stay in the marriage any more.
BAF also accused her husband of using foul language.
But justice Dulu said the couple, married under Islamic law, presented a family which had normal squabbles that could be resolved to save it.
BAF had managed to get a divorce from the Kadhi’s court.
BAF’s parents are also said to have wanted the marriage dissolved over claims she is ASH’s cousin.
Although the case does not reveal how many children BAF wanted, the woman’s main complaint was she wanted more children but the man could not yield.
Aggrieved by the Kadhi’s orders, ASH appealed before the High Court. He told the judge he has never abused BAF.
The man also blamed their inability to get more children on his wife who he said has irregular monthly periods.
Justice Dulu observed the dispute was about how many children each party wanted. He said lack of children is not a reason for divorce.
“The question is whether lack of children in a marriage is a ground for divorce. From the judgement of the honourable Kadhi, there is no reference to a paragraph in the Quran that if a husband and wife do not get children, then that is a ground for divorce or dissolution of a marriage,” ruled justice Dulu.
He added: “The rudeness of the appellant in my view as expressed by the respondent (BAF) in her evidence in the lower court was mild and did not establish that the appellant was cruel. Parties in marriages sometimes engage in harsh talks, but in my view, that cannot be a sufficient ground for divorce unless it is so persistent that it amounts to cruelty.”
The judge, however, clarified that as the couple live together, there could be another opportunity to seek divorce if there are irreconcilable difference.
“It appears the main complaint of the respondent before the Kadhi was she was not having more children with the appellant. Because of her complaint, the appellant responded rudely and the respondent felt the marriage should be dissolved. I do not find that the marriage had broken down irretrievably. On that account, I allow the appeal,” Dulu said.
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