Could Marriage Bill rescue deprived children?

By  JECKONIA OTIENO

Could the Marriage Bill 2013 offer more hope for children, like this needy six-year-old, living with disability and suffering paternal neglect?  This is the question on his mother’s mind as she battles to get the man she says is the boy’s father to step up to his responsibilities. 

The boy has protections under the Children’s Act, while his mother has laws she can turn to in the current marriage law. The boy’s mother, however, holds out hope that the new law will make things easier for women in her position.

While existing laws allow unwed mothers to pursue a man for child support, some hope the new law will recognise cohabitation more easily and give them a shot at a man’s property in ‘divorce’ proceedings.

The six-year-old was born normal but at three months he developed cerebral palsy. This condition would set off a chain of events that would see his father leave an eight-year-old common law marriage in a huff this May.

Recognising marriage

“He said there was no possibility he could sire a disabled child,” laments Lydia Wambui, the boy’s mother. “So he left.”

She has now been struggling to be the sole parent and breadwinner.  Ms Wambui has to bear the burden of looking after the child, who is small for his age. He cannot walk, is not aware of his surrounding, nor is he able to stay on his own, thus making the mother work extra hard – alone.

Cerebral palsy is a disorder of movement, muscle tone or posture caused by injury or abnormal development of the immature brain, mostly before birth. Those experiencing it suffer from conditions related to brain abnormalities, such as intellectual disability, vision and hearing problems, or seizures.

The boy has another problem, which sees him in hospital twice every week to have fluid drawn from his chest to aid his breathing. This costs his mother Sh500 per visit, without including the money she spends on transport from Makutano to Machakos Level Five Hospital. The man who fathered the boy is not tied to Wambui by any civil, religious or customary union.

She says: “There was no customary marriage and even dowry has not been paid for the eight years we have been married.” She, however, sees their eight years together as a marriage or, at least, a promise to marry. The man, who works at a well-known hotel on the Nairobi-Mombasa Highway, is alleged to have abdicated his duties as a father.  He does not want anything to do with the disabled child. “Since May, he moved out of home and just spends his money with other women at Makutano,” states the distraught woman.

Sometimes, Wambui says, the man comes to a bar near her house – with a bevy of women in tow – yet there is nothing she can do about it. Ngina Mutua, an advocate of the High Court, says the fact that they lived together for two years and more makes her the wife under the current law.  “If neighbours can identify her as the wife of the man, then she is married,” states Ms Mutua. “The fact that they have lived together for eight years allows her the right to claim for maintenance of the child.”

Recognising the marriage is another matter: a cohabitation clause that generated heated debate was deleted before the current revised Act was passed. According to the proposed law, no proceedings may be brought to compel one spouse to cohabit with the other, but a spouse who alleges he or she has been deserted may refer the matter to a conciliatory body.  Legal experts argue that Wambui has every right to seek maintenance from the boy’s father. Mutua says if he denies the child is his, he can apply to the courts for a paternity test. Otherwise he is obliged to care for the child. 

Without much time to look for employment, Wambui does menial jobs in the neighbourhood so she can constantly be there for the boy.  “I wash clothes and clean houses for people around here,” she says. “I earn about Sh150 (a day) with which I have to survive.” When she and the boy’s father were together, Wambui had taken a small loan and started a salon to augment the family’s income.  Everything fell apart when the man left. Those who lent her the money came and took away all her equipment leaving her to her own devices.   “It is not that I cannot work,” she says, “but the stress of having to care for this boy is wearing me out and keeping me from doing a lot of things.”

Rachel Muthoga, an advocate of the High Court, says if the child’s father is denying the child then the court can order a DNA test to ascertain whether he is the father, after which he will be ordered to pay maintenance.  Says Ms Muthoga: “He cannot be forced to live with the woman but then he can be compelled to take care of his child.” The child’s father could not be reached for comment.