How can I punish my wife for cheating on me?
Remember that no person has the right to punish another because they hold no such prerogative.
Hi Wakili
I have suspected my wife of having an affair for some time now. My fears were confirmed when I secretly took samples of our last-born son’s hair and did a DNA test. The test results showed I am not the father. What legal actions can I take to punish my wife? I don’t want to divorce her.
Marriage and punishment are not relatives nor friends; neither do they fit in a relationship where two or more persons of the opposite sex willingly commit to each other’s feelings, desires, aspirations, and decisions to make a family and reach companionship. The Constitution of Kenya has equaled all people before the law.
Article 27 Clause 1 affirms this and even furthers equal access to protection and benefits that accrue from and by law to every person, irrespective of their faith, sexuality, gender, age, marital or health status, within a frame of many other identities, as emphasized in Clause 3. It should be stressed that equality before the law means full and equal enjoyment of all rights and freedoms, as given in Clause 2.
Punishment is not a responsibility given to anyone save for what the law provides. Every definable crime or offense, whether of a criminal or civil nature, is only remedied by the instructions and limits of the law. Before a competent judicial officer, the state has been given the prerogative and authority to execute punishment assigned by law for offenses or crimes proven by certain defined court evidence levels. However aggrieved a person may be, it is not provided for anywhere in law that they can punish another who might have offended them.
Suspecting that one’s wife or husband is having an affair is hearsay till it is proven. The aspect of adultery is only essential in marriage because the law has identified it as one ground that can be cited to occasion the separation or divorce of a legally married couple. Nonetheless, a few reminders of what marriage is and why punishment cannot be a functional vocabulary or term of that institution or union.
Article 45 Clause 2 of the Constitution teaches that marriage is a voluntary union of two consenting adults of the opposite sex. It further states that the parties within this union hold equal rights when establishing, maintaining, and dissolving it.
Readers must depart from your punishing mind since it is not your duty to do so. The Marriage Act allows you to take action of judicial separation or divorce. In several sections, enumerated in Part X and depending on the kind of marriage, grounds are defined which could lead to a party to launch such proceedings. Some of these include one or many acts of adultery by the non-complaining spouse; cruelty, whether mental or physical, inflicted by the accused party on the petitioner or their children; desertion by the non-complaining party for at least three years before the day the divorce or separation petition is lodged in court; and or exceptional depravity by the non-complaining party, besides an irretrievably broken marriage. If you consider judicial separation or divorce a punishment, then you have your options to choose from.
Since divorce is not on your table of options, here are a few comments about the maxims of equity that need to be applied to sort out this situation. First, equity follows the law. This has failed on your side since you have taken action with hair samples of your son and undertook a DNA, which, as you put it, indicates results that have nothing to do with you.
This takes us to the second maxim: the person who seeks equity must do so with clean hands. You have acted this way, yet there is not enough proof that your wife is unfaithful, in addition to how you have picked the hair samples for DNA testing.
In this context, you are left with trying to apply an Alternative Justice System that is acceptable in your community or to both of you. There are known, reliable, and credible councils of elders, paralegal networks, or mediation institutions that can be approached to give counsel to this fragile situation, as you have described it. A dual pathway can lead to mediation, either through a court-mediated process sanctioned by Article 159 Clause 2 paragraph (c), which directs the courts of Kenya to refer matters to alternative justice systems, including traditional dispute-handling mechanisms. This could also be a direct reach-out to an agency that carries out the mediation.
Please remember that no person has the right to punish another because they hold no such prerogative. If you do not like what your wife has done, please give her space to avoid unnecessary drama that has no legal, social, or moral backing. Similarly, the evidence law in Section 107 behooves you to prove that your wife is guilty of the allegations made. This provision also reminds us of the presumption of innocence until proven guilty.
