DAM v ASI (Miscellaneous Cause E800 of 2023) [2023] KEKC 14 (KLR)

minimal divorce rates. The general rule, a covenant taken in public at marriage specifically by the husband, is to treat her with kindness and in the event of divorce to also treat her with kindness. Q.2.228 provide: ‘The divorce may be pronounced twice, then keep them in good fellowship or let them go with kindness’ 5. Talak as defined by Hamilton in Hidaya vol 1 at page 200 ‘signifies the dissolution of marriage as the annulment of its liability by the use of certain words.’ Divorce though eschewed is legal under Islamic law. It is the most abhorred by the Almighty Allah of legal issues. It has to be exercised with restraint and upon serious consideration. The general rule, a covenant taken in public at marriage specifically by the husband, is to treat her with kindness and in the event of divorce to also treat her with kindness. Q.2.228 provide: ‘The divorce may be pronounced twice, then keep them in good fellowship or let them go with kindness’ 6. Under Islamic law, the husband has the original jurisdiction to efiect divorce. He does not leave of court or any organisation to exercise this inherent legal right. upon pronouncement by the husband, divorce is efiective. It should be written, dated and witnessed to authenticate it. Part IX, Section 57 [1] of the Marriage Act No 4 of 2014 requires it be registered within reasonable time. Narrated Abu Huraira [RA] that the Prophet [PBUH] said: Three issues are considered efiective upon pronouncement, whether one is serious or in jest: marriage, divorce and raj'at [returning wife to marriage contract after divorce before expiry of edda period in a revocable divorce]. Reported by the five Imams of Hadith except Al Nasa'i. 7. Section 372 of the KCBB states: ‘‘Once uttered by the husband through the express pronouncement, divorce becomes efiective. However, in using symbolic words, the husband must have intended the divorce for it to become efiective.’’ 8. SC Sircar in ‘Marriage, dowry, divorce, Al Sharia Sunni and Imamiyah’ at page 389 states: ‘The divorce of every husband is efiective if he be of sound understanding and mature age, but that of a boy or a lunatic or one talking in his sleep is not efiective.’ 9. There exist difierent modes of divorce; in terms of types of divorces it is divided into approved (talaq al sunnah) and disapproved divorce (talaq al bid’a). In terms of its efiectiveness it is categorised into revocable (talaq al raj’i) and irrevocable divorce (talaq al ba’in). Approved divorce is one that fully meets the requirements ordained by Allah and His prophet. Disapproved divorce does not meet all the requirements, it is where a husband pronounces all the talaqs at once or simultaneously or while the wife is in a state of impurity or in a state of purity but have enjoyed conjugal rights in this period. A revocable divorce is the first or second divorce. The third divorce is considered major irrevocable. In a revocable divorce the spouses can remarry without necessity of new marriage contract. An irrevocable divorce is absolute, the spouses cannot remarry unless they meet very stringent conditions. Irrevocable divorce is either minor or major. A revocable divorce turns into a minor irrevocable divorce upon expiry https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/14/eng@2023-07-10 2

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of the edda period which is approximately (90) days from date of pronouncement of the divorce under Q.2.228. It provides: “ and divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the last day. And their husbands have the better right to take them back in that period, if they wish for reconciliation.’ 10. The verse provides both the normal edda period and rules relating to revocable marriages. Abu Abdallah Muhammad ibn Ahmad ibn Abubakar al Qurtuby in his ‘al Jami’ liahkam al Qur’an’ Encyclopedia of rules of Qur’an on interpreting the above verse state: ‘there is consensus among Muslim scholars that a free husband is more entitled to return his free wife into the fold of marriage (without need of new marriage contract), if divorces his wife in a consummated marriage, provided it is before the expiry of iddah, otherwise the divorced wife becomes alien to him and cannot be returned into the marriage (merely by the husbands’ declaration) except with a new marriage proposal and contract, with consent of waliy and witnesses.’ 11. Expounding on the issue, Abu al Qassim Muhammad ibm Ahmad ibn Juzzy al Maliki in his ‘Al Qawanin an Fiqhiyyat’ Laws of Islamic jurisprudence’ at page 368 categorizing types of divorces and their efiect stated: ‘There are four situations of irrevocable (or irreversible) divorce: divorce of wife whose marriage is not consummated, Khul’ and three divorces. These are irreversible by consent of Muslim scholars. The fourth one is what is efiected by our contemporaries, where the husband delegate the power to efiect divorce to the wife. Some scholars, in agreement with Ibn Al Qassim, consider it one divorce and not Khul’ and the husband may return her to his marriage; others consider it in the power of three divorce. Revocable divorce is other than the above situations. The husband, in a revocable divorce, is entitled to take her back in marriage before the lapse of the idda period. During this period, he is obligated to provide for her sustenance and clothing. Upon its expiry the divorce becomes (minor) irrevocable; he cannot retake her into the marriage except with her consent. He is no longer obligated to provided her with sustenance and clothing. An irrevocable divorce on the other hand becomes efiective immediately upon its pronouncement.’ 12. In a minor irrevocable divorce, parties may remarry but only under a new marriage contract; but the divorced wife is at liberty, if she so desires, to be married to another husband other than her previous husband. These provisions are clearly elaborated in the Kadhis bench book sections 377 -388. Expounding on this, SC Sircar, in ‘al – Shari’a, Sunni and Imamiyah code’ at page 383 states: ‘Repudiation or divorce is ether revocable (raj’i) or irrevocable (ba’in). In the ahsan or best from, the single repudiation that is pronounced is revocable before the completion of the iddat, after which it is irrevocable or irreversible; in other forms, the first and second are revocable, with respect to an enjoyed wife, and the third is always irrevocable.’ 13. In the instant application, the first divorce was revocable (within the iddat period) upon its expiry on February 11, 2016 without remarriage or reunion of the spouses, it changed to minor irrevocable divorce and the applicant was therefore free to marry another husband. She was married to OM on June 26, 2021, more than five (5) years after the expiry of the iddah period from the marriage to ASI . https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/14/eng@2023-07-10 3

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There was thus, which we hereby find and hold, no legal impediment by reason of existing marriage to this second marriage between the applicant and OM . It is therefore valid and legal. 14. No orders as to costs. DATED AND DELIVERED AT NAIROBI ON 10TH DAY OF JULY 2023 HON. ABDULHALIM H. ATHMAN SENIOR PRINCIPAL KADHI https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/14/eng@2023-07-10 4

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