KENYA: A Khadhi's court in Mombasa has ordered a woman who separated from her husband of 12 years to marry another man to return to the first marriage.

But the court has also forbidden the couple from sleeping together for some time, until it can be ascertained she had not conceived in the second marriage, which the court dissolved.

The landmark proceedings before Mombasa Principal Kadhi had attracted immense attention among local Muslims and non-Muslims who were eager to know the outcome.

The woman has since filed an appeal seeking to overturn the ruling of the Islamic court.

The Kadhi declared in the ruling that the woman did not demonstrate valid reasons under Islamic law or sharia to justify fleeing from her legal husband to live with another man.

He further ruled if she wished to leave her estranged husband, she can only do so after following due process, including demonstrating that there are irreconcilable grounds.

The Kadhi, in annulling her second marriage, accused Rehema Dzuya of entering into a second illegal marriage with Rashid Karisa.

 After failing to get divorce from her estranged husband, Salim Twota Mutwiwa, she falsely presented herself to a Muslim official, Sheikh Hassan Suleiman, claiming to be a virgin.

The Kadhi, Abdulhamin Athman, said Rehema therefore used false pretences to cause Sheikh Suleiman to register her second marriage.

"The marriage certificate is hereby cancelled," said Athman, who noted that polyandry is illegal under Islamic law.

And the Kadhi observed in his ruling that although "two human beings cannot be forced to live together", it would also be unfair to force a man to divorce a woman he still loves even after accusing her of sexual infidelity.

Besides, the Kadhi said divorce cannot be granted outside the law for "the defendant (Rehema) is legally the wife of the plaintiff".

"She ought to return to the matrimonial home and the plaintiff shall provide for her accommodation, sustenance and healthcare," the Kadhi ruled.

Monday, Rehema, a native of Rabai in Kilifi who lived with her estranged husband at Buxton in Mombasa until April this year, applied for a review of the order issued by the Kadhi.

She admits leaving Salim Twota Mutwiwa for Rashid Karisa on April 17, this year, but alleges that its her estranged husband who abandoned her for six years and refused to agree to an amicable divorce.

"The plaintiff (Salim) stayed away from me for about six consecutive years unfairly and only made technical appearances whenever he felt like," says Rehema in an affidavit dated October 26 contesting the Kadhi's order on October 22, in which she also sought a review. Salim sued Rehema in October.

Rehema also wants the court to review the judgement, which has nullified her marriage to a second husband because she is not willing to go back to Twota.

"The notice of motion application filed herewith is extremely urgent on its nature. And I therefore request the same to be immediately and expeditiously heard on the extreme reasons that the plaintiff has already obtained judgement," said Rehema.

MATRIMONIAL HOME

Mombasa Principal Kadhi ordered Rehema to return to their matrimonial home in Buxton within one week, saying parties must observe their marital obligation.

The Kadhi gave the order following an application by Twota, who had complained in the court that Rehema had abandoned and left him suffering in absence of love and conjugal rights.

But in her application following the judgement, Rehema admits she was married to Salim under the Islamic laws, but her first husband started neglecting her.

"It is true that we were married under the Islamic laws but due to reasons best known to Twota, he unreasonably started habits of abandoning me," said Rehema.

She claims the man never used to take care of her and she had fended for herself for six years.

Twota admits they were childless but said that did not mean the marriage had collapsed.

He said he still loves Rehema and has been waiting for her anxiously to return to their matrimonial home at Buxton following the judgement.

Twota complained that despite the judgement, which ordered her to go back home, she has instead filed a notice for divorce, which was unfair.

He pleaded with the court not to give Rehema audience because her application was frivolous and full of falsehoods.

However, Rehema says she abandoned Twota for neglecting her.

"In the circumstances, I was lured by my own self to enter into marriage with another man not knowing for sure that my previous marriage with Twota was still in force and valid," said Rehema.

She wondered what she was expected to do when Twota remained silent, leaving her to continue to suffer until April this year when she fell for someone else.

"When he heard that someone else had given me his hand in marriage, it is when he started embarrassing and blackmailing me. At first, he demanded from me Sh150,000 through blackmail or else he takes court action against me," said Rehema.

In his judgement, the Kadhi said Twota is legally married to Rehema and should return to her matrimonial home because she had failed to demonstrate that the husband had failed in his responsibilities.

Rehema says she is ready to relinquish both the dowry and Edda rights if the court will allow her to divorce the first husband because she had found it impossible to live with him.