- The petition for dissolution of the marriage was filed on April 9, 2009 over cruelty.
- But a magistrate declined to dissolve the marriage on grounds that none of the parties proved cruelty.
Image: FILE
A couple that has been forced to stay married got reprieve after a judge dissolved their union on Monday.
Justice Aggrey Muchelule dissolved the marriage of DMM and NHM saying there was no love and the two didn’t want to be with each other.
A marriage relationship, the judge said, is a voluntary contract.
“Where the parties to the marriage are living in separate houses, they are not communicating, no longer love one another, are no longer happy to live together as husband and a wife and attempts to reconcile them have failed, the court cannot, and should not, keep them together. The marriage has to be dissolved,” Muchelule said.
His judgment arose out of an appeal filed by the man protesting a magistrate court's decision which declined to dissolve their marriage on grounds that none of the parties proved cruelty as a ground for divorce.
And because of that magistrate's decision they had to stay married, the court was told.
On November 28, 2018 a magistrate dismissed the cross-appeal together with a petition for divorce filed by DMM and NHM.
The couple married on October 30, 1996 at registrar’s office in Nairobi. They were blessed with four children.
The petition for dissolution of the marriage was filed on April 9, 2009. Both parties in the divorce accused each other of cruelty.
The court was told that the marriage continued to deteriorate with little or no communication. The marriage broke down irretrievably.
After hearing the case the court found that neither the man nor the woman proved their case, hence it was dismissed.
Aggrieved by the court decision the man filed an appeal saying the magistrate erred in determining there was no proof of cruelty between the couple.
He also said that the magistrate was at fault in requiring them to produce evidence of cruelty yet this was elaborated in the pleadings as well as testimonies.
He said the particulars of cruelty such as hostility, rudeness, unfaithfulness in terms of transfer of property and wasting of property was sufficient.
On Monday, the judge noted that there was no evidence given about the incidents of cruelty.
He said no evidence was produced to show that the woman was engaged in an adulterous relationship.
The judge further observed that there was no evidence to prove cruelty though none of the two denied it in pleadings.
“I do not therefore fault the trial court when he found that neither party had proved cruelty against the other,” Muchelule said.