Legal minefield that's dowry negotiations

When a groom presents either money, or cows, or both or promises to pay in the coming years, it is a legally binding gesture of his willingness to marry a woman.

A promise to pay the dowry is a right that accrues to a woman and a man must fulfil even if the couple divorces.

This reality has dawned on many men who have been asked by the court to fulfil the pledge they made to their wives years back, even after nullifying the union.

If there’s one golden advice these divorcees would offer your men eager to conclude the dowry negotiations it would be ; do not make promises just to impress your father-in-law or bride. Better still, add a shrewd lawyer in the boy’s dowry negotiation entourage.

Swalleh Kanyeki, a lawyer says a dowry or bride price promise becomes like a debt that is due and owing.

“The payment could be immediate or delayed but it is a right,” he says.

In a divorce case in 2018, Justice George Dulu, sitting in Garissa granted Ms F.B.I. her wish to divorce a man named B.G.

Besides the divorce, the judge directed the husband to pay up a dowry of two cows, a promise he had made to the woman when asking for her hand in marriage.

The man, on his part, maintained that he paid two goats to the woman but the judge said in the ruling that he was confusing bride price and dowry.

According to Justice Dulu, bride price is a gift or payment made to the parents of the bride at marriage, while dowry is a gift given to the woman in a marriage, which becomes her sole property.

“The promise of dowry in the marriage is a contract and in my view is enforceable. The two goats of the respondent were not given to the appellant. Now that the marriage is for dissolution and the two cows promised to the appellant have not been paid, I order that the respondent (B.G.) give the appellant the two cows or the money equivalent of Sh16,500 per cow which translates to Sh33,000 as dowry within 60 days from the date of this judgment,” the judge said.

The man who had earlier sought redress at the Kadhi’s Court, had been given 80 lashes of the cane as punishment for lying that his wife had an affair, a claim he failed to prove.

Justice Dulu asked him to pay Sh5,000 as fine instead of the 80 whips imposed by the Kadhi.

“That punishment was handed down by the Kadhi without availing the respondent an opportunity to swear to prove his allegations on adultery of the appellant in the place of providing physical witnesses as required in Islamic law. The said punishment was a mistake and is thus herewith set aside,” the judge said.

27 years

In a different divorce ruling, Principal Kadhi Abdulhalim Athman granted a woman identified as S.M.H divorce and directed the husband, A.H.A. to pay a dowry of two cows after the court found that he failed to pay it, about 27 years ago, when he married her.

The Kadhi directed the cows to be handed to the chief in Merti, Isiolo. The court quoted a section of Islamic law saying: “The greatest sin before Allah is a person who married a lady and after fulfilling his desires divorced her and did not give her dowry, and a person who engaged a worker and did not give him his dues and another who kills an animal in vain.”

Before seeking a divorce, the woman who had 11 children, said they had lived separately for three years and the man did not care for her or provide sustenance and medication to his children.

Being an old couple, the court gave them another chance for reconciliation but which was not successful. The woman cited cruelty as one of the reasons for seeking to end her marriage. On his part, the man said his wife denied him conjugal rights claiming he is not Muslim.

He also blamed the elders saying they wanted to break their marriage and that if she insists on divorce, she should then refund the dowry, the children and pay the costs of the case.

The Kadhi ruled that assault and mistreatment of wives offend the fundamental rights of a wife under the law.

“It is inhumane and illegal. She is, I find and hold, entitled to a divorce. Accordingly, I grant her prayer for dissolution of marriage,” he said.

Refund dowry

In divorce cases where women have been asked to refund the dowry, Mr Kanyeki explains that a woman who wants out of marriage, not because of adultery or anything must refund what was paid to her family. It is known in Islamic law as Khulah.

For instance, in April, a Malindi High Court judge Reuben Nyakundi shocked many after refusing to overturn a decision, which directed a woman to refund a Sh150,000 dowry.

The woman, identified as Z.Y.J. rushed to court fearing arrest for failing to pay back her dowry as the deadline for repayment drew closer.

She told the court that she and her husband signed consent before a Mariakani Kadhi court last year, agreeing to terminate their marriage on condition that she refunds the money.

But in the appeal, she said she had no legal representation and knowledge of the repercussions when they appeared for the divorce hearing.

According to her, she signed the papers under duress and was intimidated by her estranged husband. She agreed to refund the dowry in three instalments of Sh50,000 and was given a grace period of one year.

The woman feared that she may be committed to civil jail if the estranged husband, moved to court seeking to enforce the order, after the lapse of one year.

But Justice Nyakundi dismissed the case stating that there was no mistake of law made by the Kadhi.

“This court finds it difficult to disregard the consent judgment and have it nullified without a proper factual or legal basis,” he said.

The woman was left with no option but to refund the money.

Christian marriage

The refund of dowry is not only for Islamic marriages.

In a divorce ruling five years ago, Justice C.B. Nagillah in Kisii nullified the marriage between R.K.M and her husband G.M.N and ordered the father of the man to refund Sh130,000 to the woman.

The couple agreed before the judge that their marriage was irretrievably broken. The husband, however, asked for a refund of the bride price he paid to her parents when asking for her hand in marriage. He claimed that he gave his in-laws three cows and Sh60,000 in cash.

The father-in-law, who also testified in the case, confirmed that the bride price was three cows and two goats and the Sh50,000, handed to him in cash. According to the father-in-law, the total amounted to Sh200,000.

Evidence presented in court showed that the couple married in October 2008 at a Seventh Day Adventist (SDA) Church, and had one child.

The marriage hit the rocks in 2011 and each started living separately. According to the woman, the man denied her conjugal rights and exhibited cruelty and abusive behaviour.

The man on his part claimed that she moved out of their matrimonial home when he discovered she was unfaithful.

The court directed the father-in-law to refund Sh130,000, putting the value of each cow at Sh40,000 plus the Sh50,000 which was paid in cash.