The institution commonly referred to as bridewealth remains
universally practiced among the Gusii of western Kenya. Gusii
bridewealth is "progeny price" in its principal legal implication.
What the bridewealth system as such is designed to primarily
protect is the husband's exclusive right over his wife's offspring.
All the wife's children, by whomever begotten, belong to her
husband as well as to his lineage, either during his lifetime or
after his death, unless the bridewealth is returned, in whole or
in part, to him or to his heirs by way of divorce. The major
disputes arising between the parties concerned from an impending
divorce are always related to the custody of children and the
repayment of bridewealth.
The first half of the paper examines 42 divorce cases heard
at Kisii Law Court in 1979-1980. The divorce suits filed by
women number more than twice those filed by men. What
primarily motivates a wife to initiate legal actions is her wish to
acquire the right of custody over her children. A divorce, if
granted by the court, also clears the way for her subsequent
lawful remarriage. All the couples involved in divorce cases
have been separated for a certain period, and their marriage is
irrevocably broken. A husband is much less eager to bring a
divorce before the court. This is because at any time he is
allowed to become a polygamist, and by refusing his wife a
divorce he continues to have a potential right over her offspring,
who may be under her physical custody. Far fewer husbands
than wives opt for a divorce suit and, if they do, they usually
pray for both divorce and receiving back their bridewealth,
thus from the outset waiving their right over children. This
attitude is in line with that of many other husbands who ignore
a summons from the court in a suit where a wife is claiming the
right of custody, and who consequently are forced to accept an
ex parte judgement totally in favor of the wife.
The magistrates' judgements at Kisii Law Court show a
marked tendency to grant the custody of children to the parent,
the mother in most cases, who has mainly brought up the
children until the time of the lawsuit. When a wife is granted
the custody of all her children, her father is ordered to return
the whole bridewealth to her husband. In the very few instances
where a husband is granted the custody of one or two children,
none or a portion of his bridewealth is returned, normally one
child remaining with him being offset by two head of cattle
deducted from the returned bridewealth. A husband sometimes
refuses a divorce at the hearing and then claims all children
his wife has had on the ground that he has not received back
his bridewealth. Such a course of action on the husband's
part is generally considered by the magistrates to be an abuse of
the customary law and, moreover, repugnant to justice and
morality.
The , second half of this paper compares those divorce cases
with others heard in 1950's at a Court of Review. The Court
of Review, presided over by a British judge, was created in 1951
to hear appeals from African Courts. The judgements at the
Court of Review invariably granted the custody of children to
their genitor, either a husband or another man, who had been
living with the former's wife. In cases where a husband-genitor
was dead, his biological children were given to the custody of
his nearest patrilineal kin, despite the same claim from his wife,
who was the genitrix of the children. The judges were well
aware of the long-established customary law to the effect that
the children of any irregular union between the wife and a man
other than the husband, as well as the children of the marriage,
belonged to the husband of the regular union. In their judgements,
however, the judges modified this customary law on the
ground that it was repugnant to the principles of natural justice.
The major trend in the changes that have occurred in
court judgements as to the custody of children since 1950's is
very clear : it may be summarized as the shift of prior emphasis
from a genitor to a nurturer. I maintain that this change has
been brought about not only by the national legal policy of
unifying customary laws of various ethnic groups, but also by
negative evaluations, among increasing numbers of Gusii men,
against the customary law that has served to this day primarily
to make them jural fathers of as many children as possible.
子の監護と婚資返却 : グシイにおける離婚訴訟の分析
KH_013_4_004.pdf
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