Missing love: Divorce granted for lack of sex in couple's marriage

Missing love: Divorce granted for lack of sex in couple's marriage (Photo: iStock) From the morning kiss to the soft caress, the laughter to the intimacy that binds, the withdrawal of these simple gestures, a judge has ruled, may be enough to dissolve a marriage. For one Nairobi couple, love turned into a battlefield of accusations, including scalding with hot water during breastfeeding, financial neglect, contempt, desertion, and even witchcraft. Justice Reuben Nyakundi of the Milimani High Court brought their decade-long dispute to a close, granting divorce and offering a landmark reflection on what it means when affection fades in marriage. In a judgment that adds to the growing list of reasons why a Kenyan may seek to dissolve a marriage, Justice Nyakundi ruled that withdrawing affection or ceasing to do what one once did for a spouse amounts to desertion or cruelty. Such behaviour, he said, can justify the claim that a marriage is irretrievably broken and can, in law, be grave enough to end a union. According to the judge, when love is no longer served on the plate of a marriage, one does not have to endure a bitter ending by fighting to prove infidelity, physical desertion, or bodily harm to part ways. Instead, he explained, seemingly small matters, occasional quarrels, outbursts of anger, or a consistent pattern of emotional neglect can amount to conduct that satisfies the legal threshold for cruelty or desertion under Kenyan family law. "Marriage is a union of companionship, intimacy, and mutual support. The absence of these duties over a sustained period may properly be construed as desertion," Justice Nyakundi stated. He added that withholding conjugal rights or making intimacy impossible can be treated as constructive desertion, too. The remarks of the judge stemmed from a case filed by a Nairobi man, only identified in court documents as JM, against his wife, AK, which reached the High Court on appeal after the trial court had declined to dissolve the marriage. JM argued that the lower court had erred in failing to grant a divorce, attempting to force him and his wife to live together, while their marriage had irretrievably broken down. The two got married in 2012 under Nandi and Embu customary laws and had four children. During the subsistence of their marriage, the man accused his wife of cruelty, emotional abuse, contempt, and desertion, insisting that her conduct had irreparably damaged their union. "She treated me with contempt, emotionally abused me, and failed in her duties as a spouse," he told the court. The man further alleged that his wife had once locked the children in the house without care for three days, neglected her marital responsibilities, and created a hostile environment that justified dissolution. He further claimed that she deserted the matrimonial home and left him to shoulder the burdens of the family alone. "I fulfilled all family obligations, including purchase of food, payment of school fees, electricity, salon for my wife and daughters, and so forth," he told the court. On cruelty, JM claimed that AK had treated him with contempt and emotional abuse, undermining him in front of their children and relatives. He accused her of creating an environment where respect was absent and hostility became the norm. He insisted that the evidence showed cruelty and desertion by the respondent and that the decree of divorce should therefore have been granted in his favour. But his wife, AK, countered that it was JM who had committed acts of cruelty, neglected his responsibilities as a husband and father, and subjected her to emotional torment that no marriage could withstand. Her case, upheld at trial and defended before Justice Nyakundi, was that it was the husband, not she, who had engaged in acts of cruelty and neglect. She admitted that they had not been intimate since 2020. On cruelty, counsel for the woman submitted chilling evidence. The husband, it was alleged, subjected the wife to domestic violence, including a harrowing incident in which he scalded her with hot water on her right breast while she was breastfeeding. The injury was serious enough to require medical treatment, and the woman left the home only temporarily to seek care before returning. "On the contrary, credible evidence emerged at trial that it was the man who subjected his wife to acts of domestic violence, including scalding her with hot water on her right breast while she was breastfeeding, resulting in serious physical injury," the court papers state in part. On desertion, the respondent's case was that she never abandoned the marriage but only sought temporary refuge after being assaulted. Citing Sections 65(c) and 66(d) of the Marriage Act, her counsel argued that desertion requires proof of wilful separation for at least three years with no intent to return. In this case, she had returned home, thereby negating the appellant's claim. On neglect, she turned the tables. Her husband, she said, had failed in his duty to provide for her and their children, forcing her to rely on her family for medical and financial support. Physical blows Beyond abandonment of responsibilities, the man was also accused of engaging in "harmful beliefs, including witchcraft," which created a hostile and emotionally distressing environment in the matrimonial home. On cruelty, JM claimed that AK had treated him with contempt and emotional abuse, undermining him in front of their children and relatives. He accused her of creating an environment where respect was absent and hostility became the norm. But his allegations, Justice Nyakundi noted, were not backed by the "statutory elements required to support such a claim." The physical violence allegation stood out sharply in the proceedings. The respondent's account was not only graphic but also corroborated by medical evidence. For the court, this was not merely a passing quarrel or isolated incident, but an act that spoke to the depth of cruelty that can make cohabitation impossible. Justice Nyakundi observed that cruelty in matrimonial law need not always be physical blows. It can be "occasional quarrels, outbursts of anger, or a consistent pattern of abusive behaviour." But when physical injury is added to the mix, the legal threshold is clearly met. Neglect emerged as another flashpoint. JM accused AK of contempt, refusing to respect him, and emotionally destabilising the family. According to the judge, no one should be compelled to live in the shell of a marriage merely to satisfy family, community, or religious statutes that insist only God can separate the two people. Ultimately, the High Court dissolved the marriage between the couple, which had existed for over a decade. "I am satisfied that the learned magistrate was wrong in coercing and forcing the Appellant and the Respondent to continue sustaining a marriage that is on life support. As a consequence of all this, the appeal is allowed and the marriage is decreed as dissolved with no orders as to costs. It is so ordered," the judge ordered For the couple, the judgment closed a bitter chapter marked by violence, neglect, and recriminations.

Missing love: Divorce granted for lack of sex in couple's marriage

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