A Kadhi court in Mombasa has dissolved a marriage and ordered the woman to return half the dowry she was paid after finding that the marriage was never consummated.
The woman's family was outraged by the order that they refund part of the dowry and vowed to appeal the judgment.
The marriage between Omar Ahmed Salim, 25, and Khadija Abdulnassir, 20, was declared broken on Thursday last week by Chief Kadhi Sharif Al Muhdhar.
The two married on August 7 last year under Islamic law and were issued with a marriage certificate, according to court documents seen by The Standard which also indicate that "they lived together as spouses for one month" in Chaani, Mombasa.
After a month in the union, Khadija left her matrimonial home and returned to her parents. She reported that her husband did not have sex with her during the period and that she believed he was impotent. She then filed for divorce.
"The plaintiff filed this divorce case asking for dissolution of the marriage on ground that the defendant is impotent. As of the filing date, there was no sexual intercourse between two of them (sic)," says the Kadhi in his ruling.
When the case began, Khadija produced two medical reports from two doctors showing that she was a virgin to demonstrate that her marriage was sexless. One document from Mewa Hospital in Mombasa dated May 5 this year says: "This is to certify that I have examined the above patient and found her virgin."
In reply, Omar denied that he is impotent and further claimed that after a month in marriage, he left his new wife for studies at Kenyatta University. Despite the two medical reports demonstrating Khadija's virginity, Omar maintained that he "had sexual intercourse (with her) and (that) he has no erectile dysfunction."
To counter Khadija's claims, Omar uttered his own medical report signed by a Dr Rohit Devani alleging he underwent comprehensive medical examination and was proven to be "medically fit".
The report by Devani shows that Omar was examined in "May 2014 at Saifee Hospital (in) India."
"I had the occasion to examine him today and I can certify that Omar is medically fit," says Dr Devani.
Besides seeking divorce on grounds of impotence, Khadija also asked the court to order Omar to pay her Sh500,000 "as wedding damages and costs of this suit."
She also asked the court to order Omar to pay her Sh500 per day or Edda maintenance for the days they had lived together.
Meanwhile, Omar did not object to Khadija's plea for divorce but asked the court to order that she returns gifts that he gave her. He also demanded repayment of the Sh100,000 dowry that he paid Khadija.
"The defendant has no objection to dissolve this marriage on lack of attraction, intimacy and affection...," said the judge in his ruling.
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The magistrate ruled that although the husband and wife had each provided medical evidence in their defence, Khadija had a stronger case. He said it was evident the marriage was never consummated.
"In a case like this, (the) woman's statement has more possibility of being the truth than that of a man," said Muhdhar who then ruled: "the marriage between the two parties is hereby dissolved before consummation with effect from 31-5-16."
He also ruled that Khadija "shall give back half dowry paid to her...sum of Sh50,000 to the defendant unless he forfeits. The magistrate also ruled that because the marriage was never consummated, Khadija was not entitled to Edda maintenance payment. He declined to order Khadija to return the gifts given by Omar.
Khadija's family intends to appeal within 28 days. The family is challenging Omar's medical report, arguing that the alleged examination occurred before the marriage in May 2014.
The family also claims the kadhi ordered Khadija to return the dowry by basing his judgment on the wrong verse of the Koran. They argue that the kadhi could only have reached the verdict if she was sued by Omar.
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