Why Should the Kadhi Court Pursue Jurisdiction on Child Maintenance, support and Custody

 

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Child maintenance and support can be a difficult issue to navigate during divorce proceedings, particularly for Muslim women. Under Islamic law, the father is required to provide complete support for their children, regardless of marital status. This acknowledges the moral right of the mother and her children to receive the necessary support, regardless of their situation. However, mainstream laws mandate that both parents share the cost of their children's needs following a divorce.

In Islamic law, child maintenance and support during separation and divorce are mandatory obligations for the father. The father is required to provide for the needs of his children, regardless of whether the parents are married or divorced. The mother's right to receive child support is recognized, and it is considered a moral obligation for the father to provide for the children's needs.

Islamic law places a significant responsibility on the father to ensure that the children are adequately cared for and provided for financially. This includes providing for the children's food, clothing, housing

On the other hand, Article 170 of the Constitution of Kenya established Kadhi courts to handle disputes related to Islamic law for Muslims. The jurisdiction of Kadhi courts is limited to Muslims and their personal status matters, including marriage, divorce, and inheritance, as well as matters related to Islamic religious practices. These subjects the separating or divorcing couple to proceed to normal children’s court for child maintenance, custody and any other child matters therein. For the Muslim women who have pursued children matters through the children court, this scenario can be incredibly distressing and traumatic for Muslim women who may not have had prior work experience or be prepared for this type of subjection.

This is because, child maintenance and support is governed by the Children's Act 2022, which provides for the rights of the child and the obligations of parents and guardians towards their children. The Act defines maintenance as the provision of food, clothing, shelter, and medical care. Under the Children's Act, both parents have a legal obligation to provide for their children, whether or not they are married. This obligation lasts until the child reaches the age of 18, or is no longer dependent on their parents, such as when they get married or become self-sufficient. The children court, therefore, will require both parents to cost share to cater for the needs of the child, contrary to the Islamic law which requires the father to provide for the children’s needs.  It is important to note that child maintenance and support is not just a legal obligation but also a moral one where both parents are expected to contribute towards their child's upbringing, regardless of their marital status or relationship with each other.

Since the Children Act 2022 is upholding the best interest of the child, then it could be an opportune time to rethink and let the child maintenance and support cases for Muslim children be handled together with the separation or divorce cases at Kadhi court.  Although the Kadhi court's jurisdiction is currently limited to handling divorce and succession matters, it is crucial to extend its reach to at least manage child maintenance and support. This will guarantee that the child's best interests are considered and that Islamic law is applied. Moreover, the Kadhi court is more efficient and less costly in dealing with such matters.

Kadhi courts in Kenya have been mandated to handle cases involving personal law matters for Muslims, as provided for under the Kadhi's Courts Act. This includes marriage, divorce, inheritance, and other related matters. However, the Kadhi courts have been limited in their jurisdiction, with child maintenance and child support cases falling outside their purview. In recent years, there has been a growing call for the Kadhi courts to be allowed to handle child maintenance and child support cases. This is because many Muslim families are finding it challenging to navigate the mainstream court system, which often operates under a different legal framework that may not be compatible with Islamic law.

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One of the primary reasons why the Kadhi courts should be allowed to handle child maintenance and child support cases is that it would ensure that children’s needs are covered by the father as per the Islamic laws and beliefs. It will also provide a more accessible and familiar legal forum for Muslim children where their best interest is. Muslim women would be more comfortable presenting their cases before a Kadhi court, where the judges are well-versed in Islamic law and customs, especially when it comes to the men providing for their families; than before a civil court where they may feel alienated and misunderstood.

Furthermore, the Kadhi courts have a better understanding of the unique needs and challenges facing Muslim children and their families. They are better equipped to handle cases involving issues of religion, culture, and tradition, which are often intertwined with matters of child maintenance and support. Allowing Kadhi courts to handle child maintenance and child support cases would also be beneficial in reducing the backlog of cases in the mainstream court system. Many cases involving Muslim families are currently clogging up the civil courts, where they may take years to be resolved. By transferring these cases to the Kadhi courts, which have a more streamlined and efficient system, they can be resolved more quickly, reducing the burden on the mainstream court system.

Permitting the Kadhi court to handle child maintenance and support would be a significant victory for the children. It would guarantee that their best interests are taken into account according to Islamic law, which requires the father to provide for their children. This would also be an essential step towards ensuring that Muslim women and their children are safeguarded and treated equitably in divorce proceedings.

Finally, it is worth noting that child maintenance and child support cases are not explicitly excluded from the jurisdiction of Kadhi courts under the Kadhi's Courts Act. Therefore, there is legal precedent for the courts to be allowed to handle these cases. Hence, allowing the Kadhi court to manage child maintenance and support during divorce proceedings is critical. It will ensure that the child's needs are met in their best interest, and Muslim women and their children are treated fairly and protected according to Islamic law.

In conclusion, the Kadhi courts in Kenya should fight to be allowed to handle child maintenance and child support cases. This would provide a fairer and just treatment as provided in Islamic law for the father to provide for his children. It also provides an accessible and familiar legal forum for Muslim families, allow for a better understanding of the unique needs and challenges.

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