Court orders man to pay wife four cows in unpaid dowry after ending marriage

A man has been ordered to pay four cows to his estranged wife as dowry debt after they ended their 26-year marriage.

Senior Principal Kadhi Ali Wako in Garrisa ordered the man (MAM) to alternatively pay his estranged wife (FOO) cash equivalent to four healthy cows.

“The Respondent (husband) shall pay the petitioner (wife) her unpaid mahr of four cows within 90 days from today, either by delivering four healthy, mature cows in Garissa or by paying the prevailing market value of four such cows in Garissa as at the date of payment,” said Wako.

The Senior Principal Kadhi ruled that the two may obtain a joint valuation from the livestock market office or two reputable livestock traders and if they disagree, either party may apply for directions from the court.

According to Islamic jurisprudence (Madhhab), unpaid mahr (bridal dower) is considered a binding and enforceable financial debt owed by the husband to his wife and it remains her exclusive property and does not lapse over time and must eventually be paid or forgiven explicitly by her.

The wife filed for divorce over lack of maintenance and cruelty by the husband, who, on several occasions, called her a prostitute in front of the children and threatened her with a knife.

The Senior Principal Kadhi dissolved the marriage after MAM and FOO failed to resolve their differences through Alternative Dispute Resolution (ADR) by the village elders and in-laws.

The two had divorced in 2007 but reconciled, however after 19 years, FOO called it quits again.

“The marriage contracted in 1999 between the Petitioner and Respondent is dissolved on the grounds of sustained ḍarar (cruelty/verbal abuse/threats) and failure of spousal maintenance, after unsuccessful ADR, consistent with Sharī‘a and Kenyan law,” said Wako.

The Senior Principal Kadhi ordered MAM to continue providing maintenance to FOO until she settles under (idda period), provided it does not interfere with his payment of the dowry debt. 

Further, the two were ordered to pursue child custody and maintenance in a competent children's court.

In his defense, MAM said that he paid the mahr “before the Kadhi” upon a 2007 divorce, and thereafter they reconciled.

However, he failed to produce a receipt, record, or call a witness to prove the payment of dowry.

Wako found that MAM declined to call witnesses who might have corroborated the alleged payment, and therefore failed to discharge the burden of proof of payment of the alleged dowry.

FOO accused MAM of only providing for the children and not her personal needs, forcing her to incur debts. 

MAM, however, claimed he meets family bills.

The Senior Principal Kadhi ruled that on a balance of probabilities, non-maintenance of the wife is established for material periods. 

Wako said MAM’s failure to provide for the wife (nafaqa), alongside proven cruelty, sustains dissolution of the marriage.

“Unpaid mahr is a Madhhab point. Unproven assertion of mahr payment “before the Kadhi” during the 2007 episode cannot defeat a clear contractual debt without evidence. The fact of reconciliation does not discharge mahr ipso facto,” said Wako.