Midwa v. Midwa

(2003) AHRLR 189 (KeCA 2000)
Download Judgment: English
Country: Kenya
Region: Africa
Year: 2000
Court: Court of Appeal at Nairobi
Health Topics: HIV/AIDS
Human Rights: Right to family life, Right to property
Tags: HIV, HIV positive, People living with HIV/AIDS, PLHIV

The parties were husband and wife married under the African Christian Marriage and Divorce Act. They had two sons, ages seven and ten. In 2000, the husband petitioned for divorce on the grounds of cruelty, claiming that the wife, having tested HIV positive, was endangering his life. The superior court ordered that the wife be expelled from her house and confined to the servant quarter. It also ordered that she be separated from her children.

The wife sought a stay of execution suspending the order of the superior court.

The Court granted a stay of execution to the wife and ordered that she return to the matrimonial home.

The Court held that it is basic law that children of tender age should be with their mother. The Judge who gave full custody of the children to their father failed to consider the welfare of the children as the most important principle in deciding their custody.

The Court decreed that the husband should not desert his wife. Although the court sympathized with the husband’s argument that the wife posed a grave risk to his life, the court reasoned that the wife was still paying the mortgage of the house.

“The ruling of the learned Judge, on its face, smacks of insensitivity and total inconsideration of the facts presented before her. It is not denied that the wife is 50% holder of the entire property and that her salary services the mortgage. It is traumatising and dehumanising to order her to live in the servants quarter of her own house. We agree with Ms Ali that in such conditions her health is likely to be adversely affected.” Para. 8.

“It is trite law that, prima facie, other things being equal, children of tender age should be with their mother, and where a court gives the custody of a child of tender age to the father it is incumbent on it to make sure that there really are sufficient reasons to exclude the prima facie rule . . . The learned Judge, in our view, did not correctly direct herself on the principle that in cases of custody of the children the paramount consideration is their welfare. Moreover, as the record shows, there were no exceptional circumstances shown to justify depriving the mother of her natural right to have her children with her.” Para 2.

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