Supreme Court Justice Reuben Nyakundi said nothing should stop the courts from dissolving such marriages if couples come to them with valid reasons that meet the standards of evidence required by law.
The judge clarified, however, that the reasons for the dissolution, given the importance society attaches to the institution of marriage, must be established to the satisfaction of the court.
The judge argued that couples do not hold divorce together, but separate it so that they can lead their separated lives.
He described such separation as a human rights reality in a marriage.
“If a marriage is irrevocably broken, let the courts decide it apart and leave the rest of the judgment to God, the alpha and omega of a marriage institution, ”said Judge Nyakundi.
The judge ruled in a case in which a man was divorcing on the basis of a uf desertion, cruelty, mental anguish, physical and psychological torture and extraordinary depravity.
The man identified because SKC had originally filed for divorce proceedings against nudists in a local court, but the proceedings were dismissed for lack of sufficient evidence, to justify a divorce.
The judge said SKC had a desertion from. not proven the marital home by the defendant.
SKC then went to the High Court to contest the Magistrate Court’s decision, saying nudists had left their marital home for more than seven years.
The judge was wrong
Justice Nyakundi accused the judge of not granting the divorce, arguing that overwhelming evidence had been presented to justify the dissolution of the marriage.
“To separate what God has joined would not have attracted the wrath of God over the trial judge. Because the complainant and the respondent had torn their institution marriage as a whole, “said the judge.
After the marriage in 2003, the SKC and FKK lived together properly as husband and wife.
According to court records, the marriage barely lasted two and a half years. Court documents show that the defendant (FKK) left SKC and the marital home for more than seven years.
SKC stated that FKK had continuously left the marital home with no intention of interfering with him reconcile or reconcile with him, adding that the love that once existed between them was extinguished.
“There is no compelling reason to consider the relationship valid. At no point did I condone the cruelty or desertion of the defendant. The marriage has since been irretrievably failed and irretrievably ruined, “added SKC.
” The judge, in truth and right, made a mistake in failing to pronounce the divorce on the basis of desertion, as included in my motion Has. The court also misunderstood the fact that we have not resumed living together since leaving the defendant’s marital home, “he added.
Section 65 of the 2014 Marriage Act provides that a marriage can be dissolved on the basis of desertion by either party for at least three years immediately prior to the date of filing the petition.
The judge found that the term desertion cannot legally be defined as exhaustive as facts and the circumstances of each Cases can vary significantly.
He further noted that the definition of desertion includes the willful neglect of one party in a marriage.
“So this means one of the parties has failed to fulfill their obligations in marriage, which has ruined them physically, psychologically and emotionally, “he said.
Justice Nyakundi said SKC had proven that he was not a companion, partnership ft, physical presence, working together at home, improvement activities and other fruits of marriage.
“It is undisputed that naturism has consciously withdrawn from living together and fulfilling marriage vows and obligations. As the law recognizes, it does not depend on the withdrawal from the marital home, but on the state of affairs “, concluded the judge.
” The one here between SKC and FKK under the African Christian marriage and Divorce Act (now repealed) is and is hereby ordered to be dissolved, “added the judge.
Justice Nyakundi said it was clear that the parties were no longer interested in the marriage and that we were each other mutually charged inclusive.