Midwa v. Midwa

The applicant, the respondent’s HIV-positive wife, alleges that her expulsion from her home and consignment to the servant’s quarter, as well as loss of her children’s custody, cannot be justified.

Decision | 01 January 2000
Case [2000] 2 EA 453 (CAK)

Facts

In January 2000, the respondent filed a petition before the High Court seeking a divorce from the applicant, his wife of ten years, on the grounds of cruelty. He alleged that the applicant, who had tested HIV-positive at the end of 1996, was endangering his life and he could no longer live under the same roof with her. On 6 June 2000, the High Court ordered that the applicant be expelled from the matrimonial home and consigned to the servants’ quarters and that the custody of her two children be awarded to the respondent pending the hearing in the case. The applicant subsequently filed a stay of execution of the lower court ruling to the Court of Appeals, contending that part of her salary contributed to payment of the mortgage on the house (in which she held a 50% interest) and that it was unjustified for her to be consigned to the servants’ quarters. Moreover, she alleged that there were no exceptional circumstances justifying granting custody of the children to the respondent.

Decision and Reasoning

The Court of Appeals held that the decision to expel the applicant from her own house was traumatising, dehumanising and likely to adversely affect her health. It stated that the High Court had failed to ensure that sufficient grounds existed before granting custody of the children to the respondent as no exceptional circumstances could justify depriving the applicant of her natural right to have her children with her. The Court ordered that the applicant be restored to the matrimonial home.