Beyond physical violence: When verbal abuse becomes a divorce issue

Cruelty in marriage is often associated with physical violence that leaves visible scars. But Kenyan courts have made it clear that alleging cruelty is not the same as proving it, and a recent High Court case shows just how high that bar is.

On June 12, 2012, a woman identified in court records as PMS petitioned the Nairobi High Court to dissolve her marriage to MDS, arguing that it had irretrievably broken down due to cruelty and adultery. She alleged that her husband had failed to be a companion, was insensitive to her needs, and had withheld love and affection, and that these actions amounted to cruelty.

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But in a judgment delivered on March 4, Judge W Musyoka held that merely alleging cruelty is not enough; the person making the claim must provide sufficient evidence.

"Cruelty is a serious allegation that borders on criminality and touches on the overall character of the respondent (MDS)," the judge observed. "The petitioner is, therefore, enjoined to prove the acts of cruelty as she has alleged against the respondent."

Under Kenya's Marriage Act (2014), cruelty, adultery and desertion are recognised grounds for divorce in all marriages except Islamic marriages, which are governed by Islamic law.

The court found that PMS had failed to establish cruelty. "I am afraid the petitioner has failed in that regard. She has merely alleged that the respondent was cruel to her without bringing before the court sufficient material to establish her case. Therefore, this court is not satisfied that the petitioner has proved the ground for cruelty," Justice Musyoka ruled. 

Although she had also cited adultery, she presented no evidence in court to support that allegation either.

After being served with the divorce petition, MDS denied all the accusations, insisting he had not been cruel to his wife and rejecting every particular she had listed. He then filed a cross-petition accusing her of both adultery and cruelty.

In his pleadings, he alleged that his wife had had an extramarital affair with a man identified as AG. According to court documents, he claimed to have followed the two to a hotel in Limuru, where they had allegedly booked a room together. He told the court the affair had caused him unbearable pain and agony, and that it was at this point he became convinced the marriage had come to an end.

He also set out what he considered his wife's acts of cruelty. He accused her of demanding unreasonable sums of money without accounting for how the funds were spent, and of routinely directing unkind, degrading verbal insults at him, which he said were intended to strip him of his dignity and undermine his role as a husband. 

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He testified that she had become emotionally and physically unavailable, creating a distance in the marriage that left him feeling alienated and unwanted. He further alleged that she neglected her marital duties by frequently staying away from the family home until late at night on weekends, and that at times she failed to return home altogether, causing him distress and anxiety over her whereabouts.

After reviewing the evidence, the court dismissed PMS's allegations of cruelty and adultery for lack of proof. It found, however, that MDS had proved both cruelty and adultery to the required standard.

The court noted that both parties agreed the marriage had irretrievably broken down. Having found it beyond reconciliation, Judge Musyoka dissolved the marriage, which had existed since June 29, 1993.

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