Impact of Religious Diversity on Marriages
By Dr. Hassan Nandwa-
College for Shariah & Islamic Studies
The terminology personal law emerged in the sphere
of International Law with regard to anomalities associated with
application of the territorial Laws.
That is to say that the personal law of an individual is preferred
to the law of the country in which he resides.
The rationale for this preference is that personal law enshrines
matters and issues which are akin to believe and cultures that differs
from an individual to another on advert of increased immigration
and continuous interaction between people of different nationalities
it became necessary to allow individuals to apply their own personals
law to achieve harmony and give individuals some kind freedom even
when he/she is in freedom country.
Personal law comprises family law which essential
marriage and divorce and law of succession in addition to incidental
matters like spouses’ rights, custody and guardianship of
Therefore application of personal law of individual
is expected to be flexible and dependent on his belief or religion
changeable wherever he/she adapt anew believe or religious.
It should be also be observable that different
religion provide for different rules regulating matters of personal
Therefore adopting a new religion implies automatic
submission to the rules of that religion regulation personal law
Given that this is international standard contained
in the Universal Declaration of Human Rights, the International
Convention on Social, Cultural and Economical rights of the United
We shall examine closely its application in the
Kenyan legal system.
diversity is a social reality beyond human reach.
factors that influence individuals to elect a particular religion
include ideological argument in that particular religion, the sentiment
shared in that community however the chief consideration is the
individual choice of a person concerned
the influencing factors may be presented to an individual and nevertheless
elect not to accept that influence.
is therefore true to say that no state can successfully eradicated
religion at its own will.
It is being the case co-existence of religions is an inevitable
reality in any given community.
appreciated this reality;
is no compulsion in the religion verily the truth is clear from
Islam enjoined good treatment of non-Muslims"
God does not prohibit you to do justice to those non-Muslims who
did not fight you.
shariah restricted intermarriage between Muslims and non-Muslims.
It prohibited intermarriage between Muslims and non-Muslims at the
comprises all non-Muslims
including Jew and Christians.
The rationale for this prohibition is that for stable family which
is practicing Islam with an aim of upbringing children in accordance
with the Islamic norms and virtues it is recommended to be built
on common religion understanding.
a later verse accepted Jews and Christian women.
"This day (all) good food have been made lawful and the
food of these who were given the scripture is lawful for you and
your food is lawful for them .And ( lawfully in marriage are)chaste
women from among those who where given the scripture before when
you have them their due compensation desiring chastity ,not unlawful
sexual intercourse or taking (secret) lovers .And whoever denies
the faith –his work has became worthless and he is hereafter
will be among the losers."
(Al Maaidah: 5)
verse is explicit in legalizing a marriage between a Muslim man
and a Jewish man or a Christian lady on a condition that the lady
should be morally upright-chaste lady.
is a mere exception from the prohibition of Muslims and non-Muslims
and therefore a Muslim lady can not be married by a non-Muslim neither
can a Muslim man marry a non-Muslim other than lady Jewish or Christian.
should be observed that this verse 5:5 is the latest revealed in
relation with the two previous verses in Baqara and Mumtahinah.
“And do not marry polytheist women until they believe. And
a believing slave woman is better than a polytheist, even though
she might please you. And do not marry polytheist men (to your women)
until they believe. And a believing slave is better than a polytheist,
even though he might please you.
Those invite (you) to the fire, but Allah invites to paradise and
to forgiveness, by his permission,
And he makes clear his verses (i.e. ordinance) to the people that
perhaps they may remember.” (Al Baqara :221)
you who have believed, when the believing women come to you as emigrants,
examine (i.e. test) them. Allah is most knowing as to their faith.
And if you know them to be believers, then do not return them to
the disbeliever’s, they are not lawful (wives) for them, nor
are they lawful (husbands) for them,
give them (i.e. the disbeliever’s) what they have spent. And
there is no blame upon you if you marry them if you have given heir
due compensation (i.e. mahr)
hold not to marriage bonds with disbelieving women, but ask for
what you have spent and let them (i.e. the disbeliever’s)
ask for what they have spent. That is the judgment of Allah; He
judges between you. And Allah is knowing and wise.”
Omar could not comprehend why Jewish and Christian ladies were entitled
to this exemption
He should to say:“ I don’t know any disbelief greater
than a person saying that Jesus is my lord.”
the era of Omar some swahabahs married Jewish ladies and were ordered
by Omar Ibn Khatab to divorce them but they challenged Omar that
it was lawful to marry them
Omar explained that they may be spies for the enemy besides the
ordinary Muslim being tempted to emulate the example of those greater
in all the restriction by Omar does not reach the level of prohibition.
the other hand Shafi scholars have argued that the Jewish or Christian
lady must have entered into Christian or Jewish faith before the
prophethood of Muhammad or her family embraced Christianity or Judaism
before the Prophethood of Muhammad (May peace be upon him)
I am afraid to say that this idea is baseless.
Jews and Christians present at the time of Prophet Muhammad had
all present elements of disbelief- calling Jesus God or Son of God
and not accepting the prophethood of Muhammad.
Quran used to call them people of the book.
“They have certainly disbelieved who say God is The Messiah
son of Maryam---
of Marriage under the Kenyan System
There are several kinds of marriages recognized under the Kenyan
They can be classified into two main categories Statutory and Non-
These are the marriages celebrated under written laws of Kenya which
include Cap 150 Marriage Act Cap 150, African Christian Marriage
and Divorce Act Cap 151 and the Hindu Marriage Act Cap 157. These
marriage shares the same features of monogamous and binding nature
in the sense that the can only be dissolve by the court of competence
Hindu Marriage and Divorce Act Cap 157 govern the Hindu marriage
and it is monogamous and binding in nature. The Act comprises of
the Hindu formalities of solemnizing a marriage at section 5 of
the act. The application of this Act is restricted to the Hindu
only, however a marriage under this Act bears the same features
of Monogamous and bindingness nature with only the High Court have
jurisdiction to dissolve it.
There is no provision to its conversion to the African customary
or Islamic Marriage.
It should be observed that the Act avoided the confusion caused
by the Marriage Act Cap 150 and the Matrimonial causes Act Cap 152
in regard to a marriage between parties who are within the prohibited
relations whether it is void or voidable.
Non Statutory marriage:
In the broad classification of marriages Islamic and African Customary
Law besides cohabitation can be termed as Non-statutory marriages.
marriage is solemnized according to Islamic Family Law which is
not codified in Kenya.
Mohammedan Marriage and Registration Ordinance (Act) Cap 155 enables
registration of such marriages.
was thought that Islamic marriages are subjected to marriage Act
Cap 150 and therefore Islamic Family Law is subordinately to the
English Law contained in the Marriage Act Cap 150.
This was the holding in the case of Fatuma Bint Athuman vs.Ali Bakari
In which case the court was of the opinion that marriage of minors
recognized under Islamic Law is void since Marriage Act Cap 150
avoids such marriages and the marriage Act is the supreme Law of
ruling prompted the enactment of the Mohammedan Marriage, Divorce
and Succession Ordinance Cap 156 to provide that Islamic Marriages
are not under the Marriage Act Cap 150 and therefore the age restriction
on Cap 150 does not apply to Islamic Marriage.
Act defines Mohammedan Marriage at section 3 to mean any marriage
contracted in accordance with and recognized as valid by Mohammedan
This definition leaves a lot to be desired.
Law besides providing for celebration of marriages under its provision
it also recognizes marriages contracted or solemnized under other
is no doubt that a marriage contracted under and in accordance to
provisions of the Islamic Law is an Islamic Marriage.
However the clause “and recognized as valid by Mohammedan
Law” restricts the application of Act to marriages contracted
under Islamic Law only since all marriages contracted under Islamic
Law are recognized to be valid under it.
believe the Legislature intended “or” instead of ‘and”
the conjunction ‘and” shall be replaced by ‘or”
then the definition will concur with the provisions of Islamic Law
which recognize marriages under other legal systems.
is a mistake that calls for amendment of the Act.
a Muslim man can marry a Christian or Jewish lady under this Act
since such marriage is recognized under Islamic Law.
is worth to note that the Act gives the High court, the jurisdiction
of adjudicate on matrimonial disputes arising from the marriages
contracted under this Act.
the Act does not bar the Kadhi’s courts from entertaining
such disputes as at section 3(5)
should note further that the Kadhi’s court has jurisdiction
only on matters where all parties profess Islamic faith. Which means
that marriages between a Muslim man and a Christian or Jewish woman
fall outside the jurisdiction of the Kadhi’s courts as provided
for at section 5 of the Kadhi’s courts Act Chapter 11 which
reiterates section …..of the constitution of Kenya.
should observed that section 5 of the Mohammedan, Divorce and Succession
Ordinance Cap 156 incapacitates a person married under Marriage
Act Cap 150 in accordance with the Law of any Christian country
to marry under the Act Cap 156 without having first obtained a lawful
a person shall be liable to imprisonment for a term not exceeding
five years and the Islamic Law shall not have any application to
6 of the Act Cap 156 extends the same incapacity to persons who
are already married under African Customary Law.
Marriage is characterized by being potentially polygamous and can
be terminated by Talak at the discretion of the husband.
are also many other rights and benefits provided for under Islamic
Law that are not available under the matrimonial Causes Act, however
such rights and relief dissevered
a separate discussion irrelevant to this paper.
provisions at Section 5 and 6 have a very serious impact on persons
who have married when they were non-Muslims and subsequently revert
to Islam and think to marry another woman for one reason or the
should also be noted that the High court although it adjudicated
upon Muslim marriages, knowledge of Islamic Law is not a requisite,
and the parties bear the onus of proof of such Islamic Law.
leaves the door wide open for the parties to mislead the court since
the Judges are likely to be ignorant of Islamic Law.
Mohammedan Marriage, Divorce and Succession Ordinance does not make
any reference to the (Mohammedan Marriage and Divorce Registration
Act) provides for registration of all marriage recognized by Islamic
Law at section 9.
Therefore a marriage between a Muslim and a Christian or Jewish
lady can be registered under Cap 155 (The Mohammedan Marriage and
in such marriage the presence of a party who is not a Muslim automatically
ousts the jurisdiction of the Kadhi’s Courts as provided for
at section 5 of the Kadhi’s Courts Act Cap 11 .
African Customary Marriage.
African Customary Marriage under the African Customary Law which
is also not codified in Kenya.
is also no Act to enable the registration of such marriage.
The African Customary Marriage is potentially Polygamous and can
be dissolved by Council of leaders or a Subordinate Court.
marriage Commission of 1969 made an attempt to codify the African
Customary Law which efforts calumniated into a contran’s book.
the book has only persuasive value since it is not an enactment
Also closely related marriage to the African Customary Marriage
is the Cohabitation which is a Judge made marriage.
such circumstances the court infers existence of a marriage owing
to long cohabitation.
Law governing such Marriage is not clear, is it the Christian Marriage
and Divorce Act or the African Customary Law.
absence of Clauses recognizing such marriage under the Marriage
Act Cap 150 and the African Christian Marriage and Divorce Act such
marriage can only get room under the African Customary Law.
have pointed out the system governing marriage and Divorce is supposed
to be flexible and prune to be altered or changed upon change of
faith or religion.
Kenya, this is not the situation.
we have pointed out that the marriages under the marriage Act Cap
150, the African Christian Marriage &Divorce Act 151 and the
Hindu Marriage &Divorce Act are of similar nature monogamous
and binding the point of converting one marriage to another does
issue of conversion of a marriage from a system to another will
only arise in regard to Islamic and African Customary Marriage since
both are of the similar nature, monogamous and can be dissolved
than by the order of the Court.
Islamic Law avails to parties to the Islamic Marriage rights and
relief not available under any system of marriage in Kenya.
the need to convert a marriage under Cap 150 or Cap 151 is apparent.
There is no provision in the Acts Mohammedan Marriage, Divorce and
Succession Act to enable such conversion.
a marriage under Cap 150 and Cap 151 cannot be converted in to Islamic
Marriage neither can it be brought under African Customary Law.
same situation applies to the Hind Marriages under the Hindu Marriage
and Divorce Act Cap 157, cannot be converted to Islamic or African
one hand a subsequent celebration of a marriage under Cap 150 or
Cap 151 during the subsistence of the Islamic or African Customary
Marriage will amount to its conversion into a Monogamous binding
is demonstrated in the case of Ayoob V. Ayoob
the other hand a subsequent celebration of a marriage under the
African Customary Law or Islamic Laws Cap 155 and 156 has no legal
affect at all.
These provisions fall short of the International Standards of the
Cultural and Social Human Rights which provide for people’s
freedom to choose a religion at their own will to govern their personal
life besides their faiths and beliefs.
The law of marriage is dependent on the faith of an individual.
2) The law of marriage should be changeable at the instance of the
person concerned (the individual)
3) Islam tolerates other faiths and recognizes marriages under laws
of those faiths.
4) Islam accords Christian and Jews special status consequently
allows marriage between Muslim men and Christian or Jewish Women.
5) Such marriages (between Muslim men and Christian or Jewish Ladies)
are Islamic through recognition.
6) There are numerous systems of Marriages in Kenya. The Christian
Marriages contained in Cap 150 and 151 at the apex followed by the
Hindu Marriage and then the Islamic and African Customary Marriage
7) The Islamic and African Customary Marriages can be converted
in to Christian Marriages under cap 150 and 151.
8) The Christian and Hindu Marriages under Cap 150, 151 and 157
respectively cannot be converted into Islamic or African Customary
9) The African Customary Marriages can be converted into Islamic
by subsequent registration of such marriage under Cap 151.
10) An Islamic Marriage either celebrated under the Act 156 or recognized
through registration under Cap 155 falls outside the jurisdiction
of the Kadhi’s court if party to it is not a Muslim.
11) A revertee to Islamic from Christianity; Judaism or Hindu cannot
extend provisions of Islamic Law to his marriage prior to the reverse.
2- Al-Imam Ibn Kather Tafseer AL-Quran AL- Adhim .. Daarul- Qalam
3- Eugene Cotran Casebook on Kenyan Customary Law Professional Books
Ltd & Nairobi University Press 1998
4- Eugene Cotran Restatement of African Law – The Law of Marriage
& Divorce Sweet & Maxwell 1968
5- Constitution of Kenya Cap 1
6- Kadhi’s Courts Act Cap 11
7- Marriage Act Cap 150
8- African Christian Marriage & Divorce Act Cap 151
9- Matrimonial Causes Act Cap 152
10- Mohammedan Marriage & Registration Act Cap 155
11- Mohammedan Marriage, Divorce & Inheritance Act Cap 156
12- Hindu Marriage & Divorce Act Cap 157