Divorce petition allowed on the grounds of cruelty and adultery

High Court of Kenya:  The petition was filed pertaining to the issue of dissolution of marriage on the grounds of cruelty and adultery. Petitioner had submitted the marriage certificate as an evidence to prove her marriage with the respondent. It has also been stated by the petitioner that, following their marriage they initially cohabited in Magongo and later moved to Nairobi, where they stayed for 6 months after which they returned to Mombasa. E N was the child out of petitioner and respondent’s marriage, along with two other sons who were in their twenties from respondent’s first marriage.

Petitioner has contended that she was subjected to cruelty and also respondent was unable to support her to the amount of providing food too. The reason put forward for not being able to support the petitioner as stated by her was, that he had provided Kshs. 30,000/ for the delivery of their son. Incidents of beating up the petitioner were also pointed out.

Further, this matter was reported at the Changamwe Police Station, where P3 form was issued and petitioner averred that the other two sons of the respondent from the first marriage had also threatened her with rape. Though the petitioner has strongly accused respondent of adultery, she has no evidence of that, as she has not seen any women with the respondent. Finally, on 13.11.2011, she left the matrimonial home.

Respondent in his contentions states that he had never treated the petitioner with cruelty and instead claimed of being tortured by the petitioner of her endless demands which were not affordable on the part of the respondent. Respondent in turn  accused the petitioner of being in an extra-marital affair and also that he did not want the divorce.

Judge M. Thande observed that according to Section 65 of the Marriage Act, 2014, mental and physical cruelty is one of the grounds upon which a Christian marriage may be dissolved. The petitioner had given sufficient evidence by submitting the P3 form which shows the assault that took place on 13.6.14, whereas the respondent failed to rebut the evidence of P3 form, for which Court found the respondent guilty of cruelty. As both the parties had failed to submit any evidence in regard to the accusation of adultery,  that stood cancelled on the part of both the parties. Finally, the Court directed that the marriage solemnized on 15.8.09  be dissolved and the decree to be made absolute within one month. [I M W v. L W M S, Divorce Cause No. 18 of 2015, decided on 14.7.2017]

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