|Civil Case 132 of 1971 (OS)
|Adalja v Adalja
|11 Mar 1971
|High Court at Nairobi (Milimani Law Courts)
|Adalja v Adalja  eKLR
|Mr Shah for the Respondent
|Mr Shah for the Respondent
Adalja v Adalja
High Court, at Nairobi March 11, 1971
Chanan Singh J
Civil Case No 132 of 1971 (OS)
Divorce - institution of proceedings - leave to present a petition within three years of the marriage - grounds of exceptional depravity - instances of exceptional depravity – circumstances in which leave ought to be given - grounds for abridgement of the statutory period before commencement of proceedings for divorce - effect of finding of fact that a ground exists.
The applicant sought leave to file a petition for the dissolution of the marriage before the statutory three years since the celebration of the marriage had expired, and alleged continued adultery as well as cruelty and desertion by the respondent. The adultery alleged was with one woman and was not denied, and was supplemented by acts of cruelty. The respondent had no feelings for the applicant and his affections lay for another girl with whom he was going about openly. The applicant was cut off from her relatives who were all outside Kenya. There was no suggestion that the marriage could succeed.
1. Unless three complete years have elapsed between the date of the marriage and the date of filing a petition for divorce, leave must be obtained to present the petition within three years of the marriage; and the court may abridge the three years’ period if it is satisfied that the case is one of exceptional depravity.
2. That the continued adultery of the respondent supplemented by acts of cruelty amounted to exceptional depravity, and it was useless to make the parties wait for the statutory three years to expire before proceedings for divorce could be instituted by the applicant.
3. At the hearing of an application for leave to file a petition for divorce before the statutory period, the court only makes a provisional finding of fact that a ground exists for abridging the statutory period.
The application was allowed.
No case referred to.
No statute referred to.
Mr Shah for the Respondent
|One party or some parties represented
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 132 OF 1971
This is an application by the wife for leave to file a petition for the dissolution of her marriage before the statutory three years.
The applicant alleges continued adultery as well as cruelty and desertion by the respondent. The respondent himself makes the following statements in his affidavit in reply:
“I did not wish to get married to her and ... my affections lay for the girl referred to in paragraph 17 of the applicant’s said affidavit, namely Kanchan Shah ... I was reluctantly forced into this marriage ... and I underwent the ceremony of the said marriage with a view to saving my family’s honour… [S]he well knows that I have no feelings for her and that I never had any feelings for her.”
Strangely enough, the respondent opposes the grant of leave to petition for divorce within three years of marriage. The applicant holds, I am told, a master’s degree of a university, and the respondent is a doctor. Continued adultery of the respondent and he does not deny it, does, in my opinion, amount to exceptional depravity as required by law. The adultery alleged - and not denied - is admittedly with one woman, but it is supplemented by acts of cruelty alleged by the applicant.
The quotation I have given above from the affidavit of the respondent leaves out certain other statements which are to the effect that the applicant knew before the marriage that he was in love with another girl, and the applicant agreed to share his affections with her. This is, of course, denied by the applicant.
The applicant has to live as a single woman cut off from her relatives who are all in India. There is no suggestion that this marriage can succeed. The respondent is going about openly with the other girl - so the applicant says. To expect the applicant to bear this for another eight months would in my opinion, constitute exceptional hardship.
All I am required to do at this stage is to make a provisional finding of fact that the case is one of exceptional depravity or exceptional hardship. I do find that this is certainly a case of exceptional depravity in which adultery is combined with cruelty.
The applicant also says that she is working as a teacher and that her work permit expires in May, 1971, and that it is desirable that her petition be heard while she is still in this country. The position may well be, as Mr Shah explains, that the immigration department will not ask her to leave so long as her marriage subsists. Whatever may be the position under the Immigration Act, it is to be hoped that the applicant will be allowed to remain here until her petition is finally disposed of. Mr Shah also argues that the applicant has allowed two years and four months to pass and that she can without any additional hardship wait another eight months. In view of the social position of the parties and in view of the clear statements made by the respondent which cut out all possibility of reconciliation, I think it is absolutely useless to make the parties wait for another eight months.
The question of the effect of the magistrate’s order on the right to divorce will probably arise but it does not fall for consideration at this stage.
Accordingly I allow the application with costs.
Dated and Delivered at Nairobi this 11th day of March 1971.