The Status of an Islamic Marriage in which one of the Parties had Converted to Christianity

M S R v N A B [2017] eKLR

High Court of Kenya at Malindi

Divorce Cause 5 of 2016

S. J. Chitembwe J

February 21, 2017

Civil Practice and Procedure – Jurisdiction – Jurisdiction of the High Court – Jurisdiction of the Kadhi’s Court – where the parties had entered into an Islamic Marriage – where one of the parties in the marriage converted to Christianity – where one of the parties of the marriage sought to dissolve the marriage in the High Court - which Court, between the High Court and the Kadhi’s Court, had the jurisdiction to dissolve an Islamic marriage in which one of the parties had converted to Christianity – whether the Kadhi’s Court had the jurisdiction to determine issues on matrimonial property where one of the parties of the marriage had converted to Christianity - Constitution of Kenya 2010, article 170(5) – Kadhis’ Court Act, section 5 – Marriage Act, section 3.

Family Law – Marriage – Islamic Marriage - where the parties had entered into an Islamic Marriage – where one of the parties in the marriage converted to Christianity – what was the status of an Islamic Marriage in which one of the parties had converted to Christianity

Brief facts

The Petitioner and the Respondent had entered into an Islamic marriage. At the time they married, both parties professed Islamic faith. During the course of the marriage, the Petitioner converted from Islamic faith to Christianity. She then filed the instant divorce cause in the High Court in which she sought to dissolve the marriage. The Petition was based on grounds of cruelty and desertion.

The Respondent filed a preliminary objection in which he claimed that it was an abuse of Court process to have a marriage that was formalised under Islamic law to be dissolved in the High Court and not the Kadhi’s Court. He claimed that the circumstances of the instant petition restricted the jurisdiction of the High Court to an appellate court and not a court of first instance. 

Issues

1. What was the status of an Islamic Marriage in which one of the parties had converted to Christianity?
2. Whether the high Court had jurisdiction to dissolve a marraige solemnised under the Islamic Law.
3.  
4. Whether the Kadhi’s Court had the jurisdiction to determine issues on matrimonial property where one of the parties of the marriage had converted to Christianity.

Relevant provisions of the Law

Constitution of Kenya, 2010

Article 170 (5)

Kadhis’ courts

(5)       The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

Kadhis’ Court Act

Section 5  

Jurisdiction of Kadhis’ Courts

A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.

Marriage Act

 Section 3

Meaning of marriage

(1)       Marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act.

(2)       Parties to a marriage have equal rights and obligations at the time of the marriage, during the marriage and at the dissolution of the marriage.

(3)       All marriages registered under this Act have the same legal status.

(4)       Subject to subsection (2), the parties to an Islamic marriage shall only have the rights granted under Islamic law.

Held

1. The wording of section 5 of the Kadhi’s Court Act was to the effect that nothing in that section would limit the jurisdiction of the High Court or Subordinate Courts in any proceedings which came before it. The jurisdiction of the High Court was not limited by the provision of section 5 of the Kadhi’s Court Act. Article 170(5) of the Constitution limited the jurisdiction of the Kadhi’s Court to four issues namely; personal status, marriage, divorce and inheritance.
2. Section 3 of the Marriage Act that provided that only persons who professed Islamic faith could be governed by Islamic Law in matters relating to matrimonial property did not expand the jurisdiction of the Kadhi’s Court as provided under Article 170 (5) of the Constitution.  Section 3 of the Matrimonial Property Act only gave discretion to a person who professed the Islamic faith to have issues relating to matrimonial property governed by Islamic Law. 
3. No reference was made to the Kadhi’s Court under section 3 of the Marriage Act. The effect was that a dispute involving the matrimonial property of someone who professed Islamic faith could be determined by any other court provided that the basis of the determination was Islamic Law.  Thus, section 3 did not oust the jurisdiction of the Subordinate Court or High Court in determining matrimonial property disputes involving a Muslim.
4. Parties to a marriage were deemed to be still married before the dissolution of a marriage. It was the act of dissolution of the marriage which brought the marriage to an end. Dissolution of a marriage was done through divorce proceedings. Before the marriage herein was dissolved, it was still being regarded as an Islamic marriage. The reverting of the Petitioner to Christianity had not changed the status of the marriage and therefore, the parties were still lawfully married under the Islamic Law. Until the marriage was dissolved, the parties were deemed to be still married even if the marriage only existed on paper.
5.  Since the petitioner converted to Islam and submitted herself to a marriage under the Islamic Law, the issue of the dissolution of the marriage would best be handled by the Kadhi’s Court. Issues relating to the dissolution of a marriage celebrated under Islamic Law were to be governed by Islamic Law as stated under section 71 of the Marriage Act. 
6. The High Court had jurisdiction to deal with marriages celebrated under Islamic Law.Divorce matters were civil in nature and the High Court had original jurisdiction to deal with civil disputes. Appeals emanating from the Kadhi’s Court, whether the appeals dealt with marriage, inheritance or divorce, were by law dealt with by the High Court.
7. It was prudent that the Divorceproceedings in the instant matter be  handled by the Kadhi’s Court. However, the Kadhi’s Court was only to deal with the issue of dissolution of marriage. Once the divorce was granted, the Petitioner would have ceased to be governed by Islamic Law and section 3 of the Matrimonial property Act would not apply. In the event of issues relating to property ownership arose, the Kadhi’s Court was to limit itself to issues relating to dissolution of marriage.
8. The parties to the instant petition were engaged in litigation before the Environment and Land Court over issues of matrimonial property. That was the wrong forum. Issues relating to matrimonial property were dealt with by the High Court. Not all matrimonial properties involved land.
9. Though the High Court had the jurisdiction to determine the divorce petition, the dispute relating to the dissolution of marriage was first to be handled by the Kadhi’s Court. Doing so would not be subjecting the petitioner to Islamic Law. The petitioner’s marriage was yet to be dissolved and the same was contracted under the Islamic faith. The petitioner was to exit the marriage through the same door the petitioner entered into the marriage.

Preliminary objection upheld. Divorce petition struck out.