Chief Kadhi rules in favour of daughter's right to marry her Nubian lover.

A court has overruled a man’s demand that his 37-year-old daughter not marry a man from a different tribe.

The man, codenamed MOA, refused to grant his daughter permission to marry a man from the Nubian community, insisting she could only do so after his death.

Court documents reveal that MOA remained unmoved by the pleas of his children and friends, who tried to convince him to let the mother of two and divorcee enjoy a new relationship.

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Undeterred, the woman, codenamed HSM, took her father to the Kadhi’s court. She explained that the only issue her father had was the man’s different tribal background.

Chief Kadhi Abdulhalim Athman ruled that the court would assume the role of the ‘father’ and granted HSM’s wishes.

He stated that she should be allowed to enjoy her love life and that being a divorcee was not a barrier to remarriage.

“She is entitled to enjoy marital life. Having been previously divorced is not a hindrance for her to be married again. This right is fundamental and inherent and can only be limited by clear provisions of the law,” ruled Athman

Pointing out, “There is no legal basis for the respondent, the applicant’s father to deny the consent for her marriage. In the circumstances, the application be and is hereby granted. The court assumes guardianship and grants consent for the applicant’s marriage to IMO, on the dowry to be agreed between them.”

In the case, HSM stated that she works with the Kenya Revenue Authority, while her fiancé works at the Rural Electrification Authority.

According to her, the prospective husband, codenamed IMO, is of good character, and she wishes to marry him.

Failed to appear

MOA insisted that she should wait until his death before she could remarry. Despite being served with court documents, MOA did not respond or appear to present his side of the story.

Athman noted that all Muslim marriages require a father’s consent, but noted that all jurists except one Hanafi school of thought believe that a marriage without a father’s consent should be declared null and void.

He clarified that in Islam, a marriage is also illegal if it has not been witnessed by at least two competent persons, including a parent or legal guardian.

If a guardian disagrees with the woman’s wishes, a Kadhi is permitted to intervene.

“However, when the parent or guardian and the woman wishing to marry differ on the issue of consent, the guardian (waliy) of lesser degree or the ruler has been conferred with powers to solemnize the marriage, upon application duly served upon the guardian,” said Athman.