INTRODUCTION
In a recent decision by the Kadhi’s court, it was held that the presence of a bride in a wedding ceremony can be dispensed with as it was not a requirement for the validity of a marriage under Islamic law
The case is MIM (Miscellaneous Cause E268 of 2022) [2022] KEKC 6 (KLR). The advisory opinion broadly discusses the importance and role of proxies in Islamic marriages.
In this interesting case, the applicant, a Kenyan, married a Swedish national residing and working for gain in the United Kingdom on October 21, 2020. The marriage was conducted in Kenya while the bride was physically in the United Kingdom. The bride and her walii (guardian) gave their consent to the marriage.
The marriage certificate was registered and issued by the Kadhi’s Court in Nairobi. When the Marriage certificate was presented to the High Commission of the United Kingdom, questions arose on how the marriage could have been celebrated while the bride was not present at the ceremony. Finally, the Kadhi was advised to give an advisory opinion of Islamic law on the validity and legality of a marriage celebrated through proxy.
The advisory opinion read as follows:-
- Kadhi’s courts in Kenya were established under the Constitution 2010. Article 170(5) conferred the Kadhi’s Court with jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce, or inheritance in proceedings in which all parties professed the Muslim religion and submitted to the jurisdiction of the Kadhi’s courts.
- A valid marriage under Islamic law had to fulfill five key ingredients: consent of the bride and her waliy (guardian), husband and wife free from legal impediments, offer and acceptance, witnesses, and dowry.
- Strictly under Islamic law, the presence of the bride, was not a requirement for the validity of marriage provided her consent had been authenticated. The waliihad the authority to solemnize the marriage of his daughter, granddaughter, or niece as the case may be. Those powers may be delegated to a Sheikh, Muslim Marriage officer, or Kadhi.
- As long as the bride gave her free consent to dispense her presence in the marriage ceremony, the marriage was declared valid. The presence of the groom was, however, mandatory for the validity of a Muslim marriage but his presence could be dispensed if he appointed an attorney or proxy to represent him at the marriage ceremony.
- Islamic law allowed representation in transactions generally and in marriage contracts specifically.
- In the spirit of enhancing justice through technological solutions including but not limited to e-filing and virtual courts, proxy marriage through, the husband may also participate in the marriage virtually through video platforms. Marriage through proxy was valid and legal under Islamic law.
CONCLUSION
It is important to embrace technology in various aspects of life. In matters of the heart, marriage should not be bound to a physical place. It’s time to enhance family law jurisprudence.
