Maina, J.: This is a second appeal. The appellant, Ahmad Saidi Kidevu, filed a suit in A the Primary Court for an order that his wife, the respondent Sharifa Shamte, be compelled to live with the appellant. The suit was dismissed. The appellant's appeal to the District Court was dismissed, and he has now appealed to this court.
The parties were married in 1986 under Islamic law. They lived together at the wife's B house, and when they started quarrelling a few months later, they separated. They have been living separately since 1987. The respondent wife sued the appellant for maintenance after the appellant had issued one talaka. The wife has consistently refused to live with the appellant. As both lower courts found, the marriage between the parties C is in serious trouble, and it is unlikely that the marriage can be saved.
The question now is whether the court can compel the respondent wife to live with her husband. I must state straightaway that the appellant's suit is misconceived and not D maintainable in law, in view of section 140 of the Law of Marriage Act which provides a follows:
No proceeding may be brought to compel a wife to live with her husband or a husband with E his wife, but it shall be competent for a spouse who had been deserted to refer the matter to a Board.
Marriage is a voluntary union of a man and a woman, and it is contracted with the F consent of the parties. It is intended that the marriage will last for their joint lives of the parties. However, when difficulties arise in a marriage, and one spouse decides to live separately from the other, the court cannot compel them to live together. Parliament, in its wisdom, enacted section 140 of the Law of Marriage Act, which clearly provides that G a court cannot compel one spouse to live with the other. The only remedy to a spouse who has been deserted is to commence divorce or separation proceedings.
In the present case, the respondent wife has refused to live with her husband, the appellant. The court cannot compel her to live with her husband. The appellant's remedy H now is to refer the matter to a Marriage Conciliatory Board, and then file divorce proceedings in a court of competent jurisdiction. The lower courts rightly refused to make an order compelling the respondent to live with the appellant.
I Appeal dismissed.