M V M P eKLR
|Civil Case 927 of 1977||18 Sep 1978|
Cecil Henry Ethelwood Miller
High Court at Nairobi (Milimani Law Courts)
M v M P
M v M P eKLR
M v M P
High Court, at Nairobi 14th, 21st, 23rd June, 18th September 1978
Civil Case No 927 of 1977
Divorce - ancillary provisions - divorce by talak - agreement as to ancillary matters - agreement providing for limited access to court - jurisdiction of court in respect of ancillary matters.
The applicant and the respondent, who were both members of the Sunni sect, were married according to Mohamedan law in November 1975. In 1977 the applicant filed a plaint seeking dissolution of the marriage. On the summons for directions, objection was raised to the jurisdiction of the court. Although the plaint was not formally withdrawn, a consent judgment was entered in July 1978 in the terms of a consent letter signed by the parties. The letter recited that the respondent had divorced the applicant by pronouncing the talak in accordance with Mohamedan law. The letter further stated that the applicant was to have custody of the child of the marriage (who was not to be taken out of the jurisdiction without the consent of the court), and that the respondent would pay maintenance.
Also, it stated that in the event of either party remarrying, the other party would have a right of access to the Court for a variation of the provisions as to custody and maintenance. In the last paragraph, the consent letter stated that the applicant relinquished all claims in relation to the marriage and its dissolution. On a subsequent application, the applicant sought the permission of the court, inter alia, to remove the child from the jurisdiction.
Refusing the application, that since specific provision had been made for matters appertaining to marriages between Mohamedans by the Mohamedan Marriage, Divorce and Succession Act, the Court was precluded from applying the general law in relation to ancillary matters relating to such matters; in the absence of any relevant rules, such matters should be approached as matters appertaining to contract and the provisions of the consent agreement should not be overridden.
No cases were referred to in the judgment.
M , the daughter of the late M S, applied to Court in Civil Case No 927 of 1977 for permission to take Mohamed Nabil, the child of her marriage to M P (the respondent), the son of M N, out of the jurisdiction of the court, for maintenance and for the payment of the Shs 10,000 haq mehr. The facts are set out in the judgment.
JM Khaminwa (instructed by Khaminwa & Khaminwa) for the Applicant.
YP Vohra (instructed by Vohra & Vohra) for the Respondent.
Cur adv vult