In Kenya, an adult’s right, among others, is to marry a person of the opposite sex. The marriage must be based on the free consent of the parties.[1] The right to marriage is also internationally recognized.[2] As a culturally diverse society, parties to an intended marriage are free to marry under different systems but must register their marriages, failure to which the marriages are voidable.[3] Marriage is a voluntary union of a man and a woman, whether in a monogamous or polygamous union, registered under the Marriage Act.[4]
A customary marriage is celebrated according to the customs of the communities of one or both parties to an intended marriage.[5] On the other hand, an Islamic marriage is one contracted by persons professing the Islamic faith.[6] A Hindu marriage is entered into by persons who profess the Hindu faith.[7] A Hindu marriage is monogamous, while customary and Islamic marriages are presumed to be polygamous or potentially polygamous.[8] However, customary marriages are only recognized so far as they are consistent with the Constitution.[9]
Consent to marriage is so indispensable to a relationship that a lack of it renders a union void[10] i.e. the marriage does not exist from the start. Where a person is influenced by coercion or fraud, is mistaken as the nature and purport of the ceremony or is suffering from any mental condition, permanent or otherwise, or is intoxicated, or is under the influence of drugs so as not to appreciate the nature and purport of the ceremony then the person will not be said to have freely given consent.[11]
It has often been said that marriage involves two individuals and two families.[12] It is for this and other reasons, as will be apparent, that the consent of both the parties to an intended marriage, together with the consent of their parents, was required before parties could enter a union.
The doctrine of parental consent traces its origins in the common laws of nature.[13] In traditional and pre-Islamic societies, the law only recognized and favored males. Females were treated not as human beings but as chattels. In that regard, marriage was for the enjoyment of sex and the procreation of children. Females were the property of their fathers before marriage, whereas they became the property of their husbands after marriage.[14]
The solacement of women came with the advent of Islam. The Prophet Mohammed required a man to give a dower to a woman and ask for marriage from her parents. In that regard, Parashar argues that the dower was a sign of respect for the wife. Further, “the most essential was the consent of a woman for marriage and consent to free consent.”[15] A new meaning of marriage (nikah) thus emerged in Islamic law. It is now not just a social contract[16] but an institution that provides married women with noble status.[17]
Comparatively, the law overlooked women in 19th-century England. They lacked skills and could not be enrolled in colleges. Their only solace was marriage, which has been argued, was their ‘career’ for which they ‘trained and spent their lives working in their separate but not equal private sphere’.[18] Brides did not consent to the marriage but agreed with their fathers’ choice of suitors.
According to the doctrine of coverture, a wife’s identity was fused with that of her husband, creating a single legal identity. This meant that wives could not hold any assets. Put differently, they were ‘civilly dead’.[19] Concerning minors, they could be married off with the consent of their fathers. Wives had little to no role in their children’s marriage. However, they would become minors’ guardians after their husbands’ death when the husbands declared that they assumed guardianship. Where husbands made no declaration, the courts assumed the role of guardian over the minors.[20]
- Marriage under Islamic Law
It is trite law that the formal validity of a marriage is tested by recourse to the law of the place where the marriage is celebrated, while its essential validity is tested by recourse to the law of the parties’ domicile at the time of marriage.[21] In Islam, certain conditions must be fulfilled for a marriage to be valid i.e.
- Capacity.
- The parties must be of sound mind.
- Parties’ consent to the marriage.[22]
- There must be payment of dowry.
- Parental Consent (waliyy).
I will consider the elements separately as below.
- Capacity
Capacity means that a party is major. In Islamic law, a girl becomes a major and can be married off, when she attains the age of 15 or when she attains puberty at an earlier period.[23] On the other hand, section 4 of the Marriage Act sets the minimum age of marriage at 18 years. It, therefore, means that a party who is below 18 years cannot contract a marriage.
Someone might be tempted to argue that the provision of Section 4 does not apply to persons professing the Islamic faith in light of Section 49(3) of the Marriage Act which enacts that provisions of the Act which are inconsistent with Islamic law and practices do not apply to persons who profess the Islamic faith.
However, the reading of Article 45(2) gives the impression that adults are the only persons with the right to marry. The High Court held in Council of Imams and Preachers of Kenya, Malindi & 4 others v Attorney General & 5 others[24] that marriage with a minor is void since the law only allows majors to marry.
- Competence
Competence in marriage means that the party is mentally sound. It is worth noting that a party who is incompetent for insanity could legally marry where they had a marriage guardian (waliyy).[25] The marriage guardian safeguarded the interests of the insane party. Nonetheless, the Marriage Act renders voidable a marriage contracted by a party who was and has remained subject to recurrent attacks of insanity.[26]
- Consent
Islamic marriages must have ijab (offer) and qubool (acceptance) as in other contracts. Ijab is a manifestation by a party to contract a marriage with another. The boy or his guardians normally do Ijab. On the other hand, the girl must accept the offer from the boy. Where the girl is a minor or incompetent, the qubool can be given by her guardians.[27] According to the Hanafi, the parties’ parents cannot compel them to contract a marriage.[28]
Witnesses are required to attest to the offer and acceptance for the Sunni.[29] A marriage will nonetheless be valid (sahih) even where there are no attesting witnesses for the Shia sect.[30] To the Hanafi, a marriage without attesting witnesses is irregular (fasid) and can be completed by consummation.[31]
- Dower (mahr)
Dowry is defined as ‘any token of stock, goods, sums of money or other property given or promised in consideration of an intended marriage’.[32] In Islam, it is “a sum of money or other property promised by the husband to be delivered or paid to the wife in consideration of the marriage”.[33] It is worth noting that dower and bride price do not mean the same thing in Islam. The distinction between dower and bride price was made in the case of FBI v BG[34] in the following terms;
“Bride price and dowry are two different things, though the two have often been confused to mean the same thing. Bride price is a gift or payment made to the parents of the bride at the marriage, while dowry is a gift given to the woman in marriage which becomes her sole property”.
Every Muslim wife has a right to a dowry, the sole property she can dispose of at will. Since Muslims cannot contract marriage without dowry, it cannot be relinquished.[35] This is not to say that dower must be in monetary terms. It may be paid at the time of consummation or later during the subsistence of the marriage.[36]
- Parental Consent (waliyy)
A bridegroom must obtain waliyy from the guardian of the bride for a marriage to be held valid according to the Hanbali, Shafi, and Maliki schools.[37] For the Hanafi school, consent of the parties alone is enough to constitute a valid marriage, provided they have the capacity.
Similarly, the Imamiyyah School of the Shia sect holds that a mentally sound woman is free to contract marriage without her parent’s consent.[38] The Zahiri conception of marriage is that it is between two families and not two individuals; hence it requires the consent of the bride and her guardian to be obtained.[39]
The Prophet declared that any woman’s marriage without her guardian’s permission was invalid.[40] This stems from the presumption that a female lacks legal capacity due to youth and inability to manage her property after marriage (safah).[41]
A woman’s marriage guardian is usually her father.[42] In the absence of the father, either the paternal grandfather or brother can act as waliyy[43] but cannot compel the marriage of a bride, according to the Maliki.[44] For women Muslim reverts the Kadhi is their waliyy.[45] Nonetheless, a widow or divorcee is not bound by the decision of a waliyy.[46]
- Marriage under Hindu Law
Marriage in ancient Hindu law was a “religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure”. The marriage involved conveying a bride as a gift from one guardian to another. The bride was regarded not as a party to the marriage but as the subject of the gift.[47] To Tanika Sarkar, a Hindu marriage “was an indissoluble, divinely ordained union to which the consent of the two parties was irrelevant”.[48]
As far as validity is concerned a Hindu marriage was valid where the parties had consented to the union together with their parents.[49] The bride played a passive role, and her consent was not required.[50] Marriage to a minor was legal in that it was her guardian that consented to the marriage.[51] As it was the duty of fathers to find suitors for their daughters, section 5 of the repealed Hindu Marriage Act 1955 required the consent of the marriage guardian or parent.
Even though parties of majority age had some form of autonomy, they would still go through a marriage ceremony without their consent.[52] Nonetheless, a marriage was voidable under the repealed Hindu Marriage and Divorce Ordinance 1960, where the required consent of the parties or their guardians was obtained by force or fraud.[53] This was aptly captured in Kanta Devi v Siri Ram Kaluram thus:[54]
“It is no marriage in law where one of the parties was induced to enter into a matrimonial alliance under coercion, duress or fraud, evidence of want of free Consent. A marriage procured by abduction, terror, or coercion has no sanctity”.
In modern Hindu law, marriage is a contract rather than a sacrament. This is bolstered by the Marriage Act, which only requires the consent of the two parties to an intended marriage. It means that the current law gives weight to party autonomy in marriage hence parental consent has no place in Hindu marriages. In addition, a minor cannot contract a valid marriage under modern Hindu law since they cannot consent.
- Marriage under Customary Law
A customary marriage is celebrated according to the customs of the communities of one or both parties to an intended marriage. This paper will consider Kamba, Kikuyu, and Luo customary marriages.
A Kamba customary marriage is one celebrated following Kamba customs. The eminent jurist Dr. Eugene Cotran outlines the following as the essentials of a Kamba customary marriage:
- Capacity
- Consent
- Slaughter of a billy goat
- Dowry
- Cohabitation
Capacity implies that the parties are of majority age and sound mind. Consent of the parties and that of their parents is a prerequisite. A man has to ask the woman to marry him, and if she agrees, they begin living together.[55] The groom is responsible for paying the 3 billy goats (mbui sya ntheo) to the bride’s family. The goats must be slaughtered.[56]
The groom’s father has to pay dowry or bride price in the presence of some elders. In his absence, dowry is paid for by the groom’s guardian.[57] It was established in Andrew Manunzy Musyoka (Deceased)[58] that the slaughter of the 3 billy goats and not the consent of the parties is the most important element which concludes a marriage, even with non-payment of dowry in Kamba Customary marriage.[59]
However, unlike Islamic law, where dowry is paid to the wife and is different from the bride price, dowry or bride price means the same thing under customary law and is paid to the bride’s parents.[60]
The essential elements of a Kikuyu customary marriage are capacity, consent of the parties and that of their parents, ngurario, ruracio, and commencement of cohabitation.[61] If a groom marries the bride without the consent of the bride’s father, then a fine (uici) is imposed on him. In Nderitu Ndirangu v Patrick Mwago Wanjau[62] it was held that the slaughtering of the ngurario ram seals a Kikuyu customary marriage, and there can be no valid marriage without the ngurario.
On ngurario, Koome J (as she then was) had held in James Njuguna Kangiri v Mary Wambui Njuguna[63] that customary law is not static and lack of performance of ngurario does not invalidate a marriage if other ingredients such as capacity, consent, payment of dowry, and commencement of cohabitation are proved.
It was similarly held in MWK v AMW[64] that the failure of certain formalities does not render a customary marriage invalid if there is enough evidence to show that a customary marriage was intended and certain substantive prerequisites performed.
For the Luo, the essentials of a marriage are the capacity of parties to marry, consent of both parties and their parents/families, dho ikeny (bride price), and cohabitation.[65] A marriage is invalid if a part of the dho ikeny is not paid.[66] A man needed to obtain his father’s permission before marrying since the father gave out cattle to be paid as dowry.[67] It is accepted these days that a bridegroom can marry without the consent of her parents or family if he is independently able to pay the bride price without the assistance of the family.[68]
The above discussion shows that parents played an essential role concerning the intimate affairs of their children such as in marriage. As it was expected that children obey their parents most decisions as to the children’s marriage were therefore made by their parents specifically the fathers. This position stemmed from the argument that ‘marriage was too important a matter to be left in the hands of emotional youth’.[69]
This paper asks us to rethink the place of parental consent in customary and Islamic marriages in Kenya. To begin with, marital consent is an individual choice.[70] This individual autonomy is drawn from the inherent dignity of every person which must be protected and respected.[71] The Constitution, in addition, guarantees every person the right to freedom of conscience, thought, and opinion and that no person should be compelled to act or engage in any activity that is contrary to the person’s belief.[72] It is submitted that although parties always seek the wise counsel of their parents or their families, the opinion of the parents or families cannot override individual choice.
Secondly, parental consent licenses parental tyranny over their children. With that parents may coerce their children into unwanted marriages, withhold their consent or payment of dowry until the children chose partners whom they favoured.[73]Under parental consent, it is presumed that parents own their children, particularly brides, hence they must acquiesce to the marital demands of their parents.[74]
Thirdly, the binding nature of the authority of a marriage guardian in Islamic marriage has no Quranic backing. This view is supported by contemporary Muslim jurists such as Ibn Rushd al-Qrtubi and Abd al-Ati. According to Ibn Rushd al-Qrtubi marriage guardianship has no place in the validity of an Islamic marriage but may have a ‘supervisory role for the care of the ward’.[75] Similarly, Abd al-Ati argues that guardianship in marriage finds no support from either the Quran or the Prophet.[76]
Suffice to add, an interpretation of section 3 of the Marriage Act yields the conclusion that marriage is between two individuals who must be male and female and not between two families. This means that the Kenyan law of marriage does not recognize arranged marriages where the fathers of brides find suitors for their daughters. Arranged marriages, it is submitted, are akin to a coerced marriage which negates consent thus void. This position is supported by Adal Ati who proposed that “if coercion in religion is forbidden in the Quran, how much more so for marriage!”[77]
Lastly, parental consent is contrary to international human rights law. For instance, the Universal Declaration of Human Rights requires marriage to be ‘entered into only with the free and full consent of the intending spouses’.[78] Similarly, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), calls on states to eradicate discernment against women in all issues germane to marriage and family relations and guarantee that men and women have the same right to choose a spouse and enter into marriage only with their free and full consent.[79]
- Conclusion
In summation, consent to marital engagement is indispensable to the validity of a marriage, and the lack of it profane a marriage. Equally indispensable to some kinds of marriage is parental consent. However, parental consent is only supplementary to the consent of the intending spouses and cannot substitute the consent of the intending spouses.
In so far as marriage should be voluntary, freedom of marital contract ought to prevail to ensure that parties pledge their faith only on their own free will. Marriage properly so called requires the mutual agreement of a husband and wife to love each other but not to demarcate boundaries in their bed.
The author is a 3rd Year LLB student at Mount Kenya University Parklands Law Campus. He can be reached via chokiman566@gmail.com
[1] Article 45(2), Constitution of Kenya.
[2] See Article 16(2), Universal Declaration of Human Rights.
[3] Section 12(e), Marriage Act.
[4] Ibid, section 3.
[5] Ibid, section 43.
[6] Ibid, section 48.
[7] Ibid, section 46.
[8] Ibid, section 6.
[9] Article 45(4), Constitution of Kenya.
[10] Section 11 (1) (e), Marriage Act.
[11] Ibid, section 11 (2).
[12] Anshul Parashar, Nikah under Muslim Law, 432.
[13] John Witte, ‘Honor Thy Father and Thy Mother? Child Marriage and Parental Consent in Calvin’s Geneva’, Journal of Religion 86 (2006): 580-605, 581.
[14] Anshul Parashar, Nikah under Muslim Law, 432.
[15] Ibid, 433.
[16] In re Estate of Ramadhan Hassan (Deceased) [2014] eKLR.
[17] Ibid.
[18] Heather Nelson, “The Law and the Lady: Consent and Marriage in Nineteenth-Century British Literature” (2015).
Open Access Dissertations. 525, 4. Available at <https://docs.lib.purdue.edu/open_access_dissertations/525>.
[19] Ibid, 10.
[20] Ibid, 11.
[21] Brook v Brook 65 ER 746.
[22] SMK v RHH (2015) eKLR.
[23] Anshul Parashar, Nikah under Muslim Law, 438.
[24] (2015) eKLR.
[25] Kadi Inuwa Gombe, Void and Voidable Nikah (Marriage), 7.
[26] Section 12 (a) (ii), Marriage Act.
[27] Anshul Parashar, Nikah under Muslim Law, 437.
[28] SMK v RHH (2015) eKLR.
[29] Syed Ameer Ali, Mohammedan Law (6th edition).
[30] In re Estate of Ramadhan Hassan (Deceased) [2014] eKLR.
[31] Ibid.
[32] Section 2, Marriage Act.
[33] Abdul Kadir v Salima (1886) 8 All. 149, [Mahmood J].
[34] (2018) eKLR, [40].
[35] Kadi Inuwa Gombe, Void and Voidable Nikah (Marriage), 10.
[36] Ibid, 11.
[37] RWK v AMA [2016] eKLR, [33]. See also Gulam Bibi v Mohammad Shafi (1940).
[38] B Immenkamp, “Marriage and Celibacy in Medieval Islam : A Study of Ghazal’s Kitab Arab Al-Nikah.” King’s
College, Cambridge, 1994. Available at < https://core.ac.uk/download/pdf/1333650.pdf >.
[39] E Alami, “Legal Capacity with Specific Reference to the Marriage Contract.” Arab Law Quarterly 6, No. 2 (1991):
190–204. Available at < https://doi.org/10.2307/3381835 >.
[40] Juzay Ibn (N.D), Alqawanin al-Fiqhiyyah. P.172. Dar al-Fikr, Beirut.
[41] Mohammad Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the
Maliki School”, Journal of Islamic Law, Vol.3:1 1998, 10.
[42] Shamsiyya Alh. Sale v Alh. Sale Gadawo (UR). Appeal No. GMSJ/SCA/CVA/DB/08/16.
[43] Muhammed Zaman v Naima Sultan PLD 1952.
[44] Mohammad Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The Case of the
Maliki School”, Journal of Islamic Law, Vol.3:1 1998, 6.
[45] RWK v AMA (2016) eKLR.
[46] Muhammad Farooq, “Walayah (guardianship) and kafa’a (equality) in Muslim marriage versus the woman’s
consent,” 3.
[47] P Saksena, The Hindu Marriage Act, 1955. Lucknow: Eastern Book Company (2nd edition).
[48] T Sarkar, ‘Rhetoric against Age of Consent: Resisting Colonial reason of a child-wife’, Economic and political weekly 27 1993, 36: 1869-78, 73.
[49] Sushil Kumar Tewari, Nullity of Marriage in Modern Hindu Law, 263.
[50] Ibid, 258.
[51] Naumi v Narotam 1963 AIR HP 15. See also Singh v Singh (1971) P 226; section 3(d) repealed Kenyan Hindu
Marriage and Divorce Act 1960, Cap 157.
[52] JDM Derrett, Introduction to Modern Hindu Law, 185-186.
[53] Section 11(1) (b) (iii), Kenyan Hindu Marriage and Divorce Ordinance 1960.
[54] 1963 PU 235, [238].
[55] Anna Munini & Another v Margaret Nzambi (1984) eKLR.
[56] In re Estate of Joseph Muoki Ndiro (Deceased) [2019] eKLR.
[57] Anna Munini & Another v Margaret Nzambi (1984) eKLR.
[58] [2015] eKLR.
[59] See also In Re Estate of Stephen Kimuyo Ngeki (1998) eKLR.
[60] Raphael Ratemo & another v Emily Nakhanu Musinai [2017] eKLR, [24].
[61] Eugene Cotran, Restatement of African Customary Law, Vol.2, 15.
[62] (2011) eKLR.
[63] (2006) eKLR.
[64] (2017) eKLR.
[65] Eugene Cotran, Restatement of African Law, 175.
[66] Rosemary Aoko Munjal v Noel Namenya Munjal [2015] eKLR, [23].
[67] K Shaw, Some preliminary notes on Luo marriage customs, 40.
[68] ASA v NA & another (2020) eKLR.
[69] Bjorn Bandlien, “The Church’s Teaching on Women’s Consent: A Threat to Parents and Society in Medieval
Norway and Iceland?” in Lars Ivar Hansen (ed.). Family, Marriage and Property Devolution in the Middle Ages
(Tromso, Norway, 2000), 55.
[70] See Abdul Kadir v Salima (1886) 8 All 149.
[71] Article 28, Constitution of Kenya 2010.
[72] Article 32, Constitution of Kenya 2010.
[73] Sara Butler, “I will never consent to be wedded with you!”: Coerced Marriage in the Courts of Medieval England, Canadian Journal of History, August 2004, 247-270, 250.
[74] See Ford v Stier (1896) P 1.
[75] Hashim Kamali, Shariah Law: Questions and Answers, London, UK: One world Publications, 2017, 155.
[76] Hammudah Abd al-Ati, The Family Structure in Islam (4th edition). American Trust Publications, 1995, 83.
[77] Hammudah Abd al-Ati, The Family Structure in Islam (4th edition). American Trust Publications, 1995, 83.
[78] Article 16(2), Universal Declaration of Human Rights 1948.
[79] Article 16, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
