Kenyan Court Overrules Father's Tribal Objection, Upholds Woman's Right to Intermarriage

A Kenyan court has recently upheld a woman's right to marry outside her tribe, nullifying her father's objections based solely on traditional tribal distinctions.

The case revolves around HSM, a 37-year-old mother of two and a divorcee, who sought legal redress after her father, MOA, refused to permit her marriage to IMO, a man from the Nubian community. After exhausting familial appeals, HSM brought her case before the Kadhi’s court, where Chief Kadhi Abdulhalim Athman presided. In a ruling that sought to affirm individual rights over traditional practices, the court deemed that MOA had no legal grounds to deny consent for the marriage.

“She is entitled to enjoy marital life. Having been previously divorced is not a hindrance for her to be married again. This right is fundamental and inherent and can only be limited by clear provisions of the law,” ruled Athman

Chief Kadhi Athman emphasized that being a divorcee does not hinder one’s right to remarry and that the fundamental right to marital life should not be restricted without clear legal parameters. The court assumed guardianship in this instance, thus allowing HSM to proceed with marrying IMO, contingent upon mutual agreement on dowry terms. Despite being served with court documents, MOA did not engage in the legal process by providing a response.

Athman added “There is no legal basis for the respondent, the applicant’s father to deny the consent for her marriage. In the circumstances, the application be and is hereby granted. The court assumes guardianship and grants consent for the applicant’s marriage to IMO, on the dowry to be agreed between them.”

Chief Kadhi Athman acknowledged the customary requirement in Muslim marriages for a father’s consent, noting that perspectives among Islamic jurists vary. While the majority of the Hanafi school of thought views marriages conducted without paternal consent as invalid, there exists a provision for court intervention when a guardian’s consent is denied. As such, the Kadhi has the authority to solemnize the marriage.