CASE ALERT; “No Adultery, No Divorce “, Court Rules

Court has held that a husband cannot divorce his wife based on cruelty and desertion alone in absence of Adultery.

In the case of Zedekia Karokora v Kellen Karokora Divorce Cause No. 020 of 2020, Justice John Eudes Keitirima has set a strange precedent and denied a husband to divorce his wife on ground that the Husband did not prove adultery and that even if he had proved cruelty and desertion, that’s not enough.

In the Petition, the Huband Zedekia who has been married to Kellen since 1975, sought to divorce her on grounds that she denied him conjugal rights since 1999, has been cruel to him, each person cooks their own food, abuses him and she believes in which craft among others. That such conduct has adversely affected the man’s health by causing him mental anguish, depression, nervousness and has since developed hypertension and diabetes. The husband sought for divorce and disposal of their matrimonial property. The wife denied the allegations contending that she has never been cruel to her husband.

In the 9 page Judgment, Justice John Eudes Keitirima has held as follows;
“in this petition, the Petitioner stated that he has been denied conjugal rights by the respondent since 1999, the respondent has been cruel to him and does not receive any care from the respondent. In her evidence, the respondent denied the said allegations by the petitioner. Even if his evidence, the Petitioner could have proved cruelty and desertion on part of the respondent, those grounds alone are not sufficient to dissolve marriage. Cruelty or desertion must be coupled with adultery. The Petitioner has not proved adultery on the part of the respondent. In this case, the petitioner had to also prove adultery on part of the respondent on tp of the other grounds he raised in the petition. The grounds of cruelty and desertion cannot stand alone or even if they are coupled as grounds for divorce. Therefore the petitioner has failed to prove the grounds for divorce and the petition will be dismissed”

I have called this a strange judgment because it sets the precedent that the only ground that can dissolve marriage is “Adultery” and the rest of the grounds cannot stand alone. This is problematic as it comes at a time when jurisdictions are moving away from the colonial restrictions on divorce and are considering “irretrievable breakdown of marriage” as a justification for divorce where 2 parties can no longer live together as a couple.

I also find the judgment strange because it is per incuriam. A decision is said to be per incuriam if it overlooks a certain precedent. In our common law jurisdiction, High Courts are bound by decisions of the Supreme Court and Court of Appeal. The Constitutional Court and Court of Appeal has long settled the position that any of the grounds provided for in the Divorce Act is enough to dissolve a marriage.

Previously, Section 4 of the Divorce Act provided for grounds for divorce. It only allowed a man to divorce a wife on the ground of adultery. However, it required a wife to prove adultery plus any other ground such as cruelty, desertion, bigamy, bestiality, change of religion etc in order to divorce.

The said section was challenged in the Constitutional Court as being discriminatory against Women. In Uganda Association of Women Lawyers v. Attorney General Constitutional Petition No. 02 of 2002, the Constitutional Court found the said provision unconstitutional and held that all the grounds of divorce mentioned in Section 4(1) and
(2) of the Divorce Act are available to both parties to the marriage.

The effect of the above decision was considered in the case of Dr. Specioza Wandira Kazibwe V Engineer Charles Nsubuga Kazibwe Divorce Cause No. 03/2003. In the Kazibwe case court held that both adultery and cruelty are distinctive grounds, each in its own right, upon any of which a decree nisi may issue. That a petitioner could therefore obtain a decree for divorce after proving to the satisfaction of the court either the ground for adultery or cruelty or both.

The Court of Appeal got an opportunity once again to pronounce itself on what grounds should be proved to be entitled to divorce. In the case Rebecca Nagidde v Charles Steven Mwasa Civil Appeal No. 160 of 2018, the Court of Appeal held that “in light of Uganda Association of Women Lawyers v. Attorney General Constitutional Petition No. 02 of 2002, it is sufficient for either spouse to allege one ground for divorce as set out in Section 4 of the Divorce Act for a petition or cross petition to succeed.

Even though the judge cited both cases of Rebecca Nagidde v Steven Mwasa and Uganda Association of Women Lawyers v AG supra, the judge overlooked the principle set therein that one ground for divorce is sufficient.
As stated by Kanyeihamba in Paul K. Ssemogerere and Ors v Attorney General Constitutional Appeal No.1 Of 2002 “When a Court ignores or overlooks a binding precedent and decides a case as if that precedent does not exist, its decision is said to be a decision per incuriam.”

Therefore, in my humble opinion, the decision of Justice Keitirima is per incuriam in so far as it holds that “without adultery, there is no divorce”. Such a decision is to take us back to the ages at a time when Courts are focused on look at the facts in totality to determine whether a marriage has irretrievably broken down as held by Kainamura J in Julius Chama V Specioza Rwalinda Mbabazi Divorce Cause No. 25/2011.

Further, the decision of Justice Keitirima which was delivered today 18th August 2023, comes at a time when Parliament already amended Section 4 of the Divorce Act to provide that one ground is enough for divorce. This Section was amended by Section 18 of the Law Revision (Miscellaneous Amendments) Act 2023 which set out to harmonize various laws in our country in line with decisions of Court. Section 4 of the Divorce Act was amended as follows.;

4. Grounds for divorce
   A husband or wife may apply by petition to the Court for the dissolution of the marriage on the ground that since the solemnisation of the marriage, his wife or her husband;
   (a) has been guilty of adultery
   (b) has changed his or her profession of Christianity
   (c) has been guilty of bigamy
   (d) has been guilty of rape, sodomy, or bestiality
   (e) has been guilty of cruelty or
   (f) has been guilty of desertion.

The Law Revision (Miscellaneous Amendments) Act 2023 which amends Section 4 of the Divorce Act was assented to by the President on 10th May 2023. This means that the judge should have been informed of the change in the law and his decision should have been progressive in light of the evolving nature of relationships. It is wrong for Court to let people remain married when they do not want. It is time that our Courts and Parliament embraces the no fault divorce and let persons who come together willingly, divorce willingly. Kenya has already moved for no fault divorce as seen by the recent Amendment Bill.

All in all, I find that this judgment, if appealed will be overturned as per the above precedents which have been applied in many cases. That’s why I call this a strange judgment.

I dont know how you find it, but for the judge to hold that even if the wife or husband chops off one of your arm, you cant divorce her unless you find her kwepicha with another man is not logical.