Why denial of kiss and touch can end a marriage

That morning kiss, the touch on the neck, the tickle on the ear, the massage on the legs, and the sex that keeps love’s embers burning—if denied—could now be grounds for divorce.

In a landmark judgment that adds to the growing list of reasons why a Kenyan may seek divorce, Justice Reuben Nyakundi ruled that withdrawing affection or ceasing to do what one once did for a spouse amounts to desertion or cruelty. Such behaviour, he said, can justify the claim that a marriage is irretrievably broken.

According to him, when love is no longer served on the plate of a marriage, one does not have to have a bitter ending while fighting to prove infidelity, physical desertion or physical harm to part ways.

Instead, he explained, seemingly small matters—occasional quarrels, outbursts of anger, or a consistent pattern of abusive behaviour—can be signs of a marriage already dead.

Justice Nyakundi stressed that one should not be compelled to live in the shell of a marriage merely to satisfy family, community or religious dictates that insist only God can separate two people.

“Since marriage is a matter of free choice, individuals should equally have the freedom to end it willingly. I am aware that from an ecclesiastical perspective, this may be considered controversial, as it might be seen to encourage hasty divorces or dissolutions of marriage over minor differences or incompatibilities, potentially promoting immorality. However, that critique is far from the truth. There should be no coercion by the court to force two individuals who once loved each other like Romeo and Juliet to sustain a marriage that exists only on paper or, in the case of many customary marriages, remains unregistered and lives only in the shadow of the community,” said Justice Nyakundi.

He added that marriage is a relationship of “give and take”, often difficult but requiring constant adjustment. For instance, he said, if a woman goes to her parents’ home with her husband’s knowledge but deliberately overstays, such absence may amount to desertion and misconduct. Similarly, withholding conjugal rights—or making intimacy impossible—can also be treated as constructive desertion.

Justice Nyakundi was ruling on a divorce appeal involving a couple whose marriage appeared, outwardly, to be intact. Their case had first been dismissed by a magistrate’s court, but on appeal the High Court found that the lower court had failed to consider the evidence of a collapsed union holistically.

“This court must make it clear that desertion within a marital union is not merely a withdrawal from a place, but a withdrawal from a state of things in which there is a legitimate expectation to meet both the written and unwritten obligations necessary for the survival of the marriage. The essence of desertion lies in the rejection of all marital obligations,” he said.

The judge further noted that mental cruelty can be particularly devastating in a patriarchal society where men are still regarded as heads of families.

The two got married in 2012 and had four children.

The man accused his wife of cruel treatment, neglect and desertion, citing instances such as locking their children in the house for three days, quarrelling, disrespect, and failing to perform family responsibilities.

The woman claimed her husband had subjected her to domestic violence, including scalding her with hot water on her breast while she was breastfeeding. She said she left the matrimonial home to seek medical attention but later returned. She further accused her husband of abandoning spousal responsibilities, forcing her to seek financial and medical help from her family, and of engaging in harmful beliefs—including witchcraft—that created a hostile and emotionally distressing environment..

She admitted, however, that they had not been intimate since 2020.

In reflecting on the matter, Justice Nyakundi drew on scripture: “In God’s eyes it is not good for man to be alone, hence a man leaves his father and mother and clings to his wife so that they can become one flesh.”

Yet he acknowledged that marriages are sometimes not meant for death do us part.