Every child, irrespective of how, why, where, and to whom they were conceived, has the right to be treated as a child.
Hi Wakili,
Suppose a married woman gets a child with a different man through adultery, who is the legal father of the child? Her husband or the biological father? What role should the biological father play in the child’s life, if any? Can the mother sue the man she cheated with for child support?
Adultery is a term with a dual connotation but with a singular interpretation in the context of family law. Historically, it has worn a gender discrimination lens, particularly used to demean women whom society accused of infidelity. Legally and strictly religiously, adultery implies that one spouse in an institution of marriage, as defined in Section 3 of the Marriage Act, has engaged in a sexual relationship with another person other than their wife or husband. This sexual relationship labelled illicit can be measured against all forms of marriage as prescribed in Sections 64-70 of the Marriage Act.
Every child, irrespective of how, why, where, and to whom they were conceived, has the right to be treated as a child. Article 53 Clause 1 paragraph (e) of the Constitution confers them with parental care, protection, and equal participation of the mother and father to provide for basic and other needs. These responsibilities are not dependent on the spouses' marital status. It is irrelevant whether they are married to each other or married to another person or if they still identify as spinsters and bachelors.
Whether by law or any other social structures and mechanisms, the biological father of a child never changes. The person who causes the conception of a child out of the work of their loins shall remain the father or mother of their product. However, the law can also confer someone the right to be a father by adoption and kinship care or marriage to a spouse who already has a child from another relationship.
The role of fathers and mothers, irrespective of how their relationship with the child has been constituted and functions, is guided by Article 53 Clause 1 paragraph (e). First, it should be acknowledged that within the confines of law, such people are referred to as parents. If the law recognizes one as such, then the biology or DNA does not count.
This is detailed in Section 31 of the Children's Act (2022), which assigns explicit meaning to the term parental responsibility as all duties, rights, powers, obligations, and authority which by law a parent of a child has about that particular child and its property in a manner that corresponds with their developing capacities of such child. These duties are listed to maintain the child, especially providing basic nutrition, shelter, water, and sanitation facilities.
Additionally, clothing, medical care, including immunisation, basic education, general guidance, social conduct, and moral values. Further, it is expected by law that more duties include protection from neglect, abuse, discrimination, and other differential or prejudicial treatment. It is also likely that the parent will have to provide parental guidance in religious, moral, social, and other values that are not harmful to the child.
Further duties consist of name determination of a child's name, registration of the child's birth certificate, appointing a legal guardian of the child, and receiving, recovering, and dealing with the property of the child for the benefit and best interest of that child.
Moreover, the parent has to facilitate or restrict the child's movement from or within Kenya. Upon death of a child, the parent must arrange for the interment of the child, including burial or cremation, besides any other acceptable method. Parents also have a role in ensuring that a child is committed to the care of a fit person in their temporary absence.
Can a mother sue the biological father of the child for the maintenance and support of the child? Constitutionally, Article 22, Clause (1) gives every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. This part of the law does not define the person by gender, marital or health status, sex, sexual orientation, or religious background.
In Section 102, Sub-section 91) of the Children's Act, it is given that on application by one or more persons who have care and control of a child and not being hospitals, hostels, or boarding schools, can receive an order of the court awarding them custody of a specific child. Since the court does not operate on its initiative, the persons referred could only be guardians and parents in their broadness.
