The High Court in Mombasa has ruled that a divorce may, in certain circumstances, be presumed where a marriage has effectively ceased to exist and the spouses have clearly moved on with their lives.
According to the court, the law must reflect the lived reality of parties whose marital relationship has effectively come to an end, holding that a marriage can subsist only for as long as both spouses mutually consent to its continuation.
"To hold otherwise is to conceive marriage as some form of prison and would be a denial of the constitutional promise of consent," the court said.
The court made the remarks while determining a dispute between a woman and her co-wife and children over the administration of an estate worth more than Sh200 million. The dispute pitted Ms R.B against Ms A.G and her children, Mr V.L and Ms Y.G, over the estate of Prem Lal Ramnath, who died on November 24, 2019.
In the ruling, the court found that there was "not much of a marriage" between the deceased and Ms A.G at the time of his death, observing that both parties had moved on with their lives.
The judge held that this was one of the rare instances in which a court should presume that a divorce had occurred despite the absence of a formal decree dissolving the marriage.
Contentious battles over alimony and property are often fueled by unhealed emotional wounds and personality clashes rather than legal necessity.
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"There was not much of a marriage between (the two) at the time of his demise. It would appear to me that each party had moved on. In my view, this is the one instance in which the court must make a presumption of divorce," the judge said.
The judge based the finding on Article 45(2) of the Constitution, which provides that every adult has the right to marry a person of the opposite sex based on the free consent of the parties.
Following the deceased's death in 2019, Ms R.B applied for letters of administration intestate three months later. In her application, she described herself as the widow of Ramnath.
She listed herself, Mr V.L and Ms Y.G as the beneficiaries of the deceased's estate. She also listed several properties belonging to the deceased and estimated the value of the estate at Sh200 million.
To prove her marriage to the deceased, Ms R.B produced a marriage certificate showing that she married him in 1999 at the Registrar's Office in Mombasa. The grant of letters of administration was subsequently issued to her after the petition was gazetted and no objection was received.
However, slightly more than two weeks after the grant was issued, Mr V.L, Ms Y.G and their mother applied for its revocation, alleging that it had been obtained fraudulently and asking the court to issue it to them instead.
The trio argued that the grant had been obtained fraudulently, saying they were never consulted despite being beneficiaries and that "no consent was obtained from the beneficiaries of the estate."
They also challenged the succession process, arguing that "the alleged Gazette Notice was dated 18th March 2019, way before the petition was filed," and accused Ms R.B of concealing material facts by failing to disclose Ms A.G as the deceased's lawful wife, omitting some assets and understating the estate's value.
Mr V.L maintained that his parents' Hindu marriage had never been dissolved and therefore the deceased "could not lawfully have contracted another marriage" with Ms R.B. He further claimed the marriage certificate was fraudulent because it described the deceased as "a bachelor" in 1999 despite his existing marriage.
Court rules that living apart can mean divorce.
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Mr V.L also alleged that Ms R.B had intermeddled with the estate, abandoned the funeral arrangements and that her kidney donation was "not an act of love but a business transaction" for which she had been richly rewarded.
However, during cross examination, he conceded that his parents had not lived together from 1999 until the deceased's death in 2019 and acknowledged that the deceased was living with Ms R.B when he died.
Ms R.B, however, insisted she was the deceased's lawful wife and had lived with him for two decades after marrying him in 1999.
She said she initially worked for the deceased as "a professional musician" before managing his businesses and was the one who cared for him during his illness, including donating a kidney to save his life in 2012.
She accused Ms A.G of mistreating and abandoning the deceased after relocating to Canada with their children, claiming the applicants "appeared to be waiting for him to die so that they could inherit his property."
Ms R.B also denied any wrongdoing in obtaining the grant, saying the application for its revocation "lacked merit."
During cross-examination, Ms A.G admitted she relocated to Canada in 2001 and returned to Kenya only once while the deceased was still alive, in 2014, before coming back after he died in 2019. She also appeared to concede that Hindu law permits polygamy.
Supporting Ms R.B's case, temple chairman Mr Lusher Narum Das testified that the couple were husband and wife and stated that "under Hindu law, polygamy is allowed."
A representative of Muljibhai Patel Budalgnal Hospital in Gujarat, India, also confirmed that during the deceased's treatment, Ms R.B was recorded as his wife and said there was no evidence that she had been paid to donate her kidney.
In analysing the dispute, the court noted that there was no dispute that the marriage between Ms R.B and the deceased had been celebrated and that the deceased "knew what he was doing" when he entered into it.
The judge observed that the deceased and Ms A.G had lived apart for many years. By contrast, the court found that Ms R.B cared for the deceased throughout his illness and donated a kidney to him.
The judge further observed that even after Ms A.G's reasons for relocating to Canada had ceased to exist, "she never returned" despite her husband's deteriorating health. The court also noted that the applicants themselves admitted during the hearing that the deceased lived with Ms R.B and that she played a significant role in his life.
"What flows from above is that I am unwilling to invalidate the marriage between the deceased and the petitioner. In my view, she was the deceased's wife," the judge ruled, adding that the relationship was known to Ms A.G and the family.
Having reached that finding, the judge held that Ms R.B had the legal capacity to petition for letters of administration and "was under no obligation to get the consent of V.L and Y.G."
The court also dismissed attempts to portray Ms R.B as a "gold digger," saying there was no evidence that she had been paid to donate her kidney. The court described the claim that the kidney donation was a commercial transaction as a scurrilous attempt to besmirch the woman's reputation so that she could be disinherited.
"I am not persuaded that she was. She risked her life to donate a kidney to the deceased, something the applicants, for whatever reason, failed to do. No evidence was adduced to show that Ms R.B was paid to donate her kidney," said the court in a ruling dated July 7.
The court also criticised Mr V.L's description of Ms R.B as a "mujra dancer," saying it reflected "classist thinking" that should not be acceptable in this day and age.
"Whereas she may as well have been, that, of itself, does not mean that the deceased was incapable of falling in love with her or that her station in life could not improve," the judge said, adding that there was no fraud in the manner in which Ms R.B obtained the grant of representation.
In dismissing the application, the court said the law must reflect "the parties' lived reality rather than be imprisoned by assumptions unchained from the facts."
The court said it would be unjust to allow a spouse who had abandoned the other for a lengthy period, living an independent life with no regard for their partner, to later return and seek to inherit property that the other spouse may have toiled to acquire during that long absence.
