Witnesses testified that Madame H.T. insulted her husband’s co-wife and mother in law. The Appeal Court granted divorce to Monsieur Y.K. on the sole basis that by insulting his mother his first wife had harmed his husband honor and dignity and made marital life impossible. However, quarrels between co-wives do not characterize a serious insult in a polygamous marriage. Moreover, by asking for divorce from the first wife only, the husband committed a serious injustice and violated his duty of impartiality with his wives. Additionally, insults directed at the husband’s mother do not constitute a legal basis for divorce, according to the Code des Mariages et Tutelles (Code of Marriage and Tutelage). Indeed, the Code only considers insults directly addressed at the husband as a basis for divorce. The Court held that such insults were not proved in this case and could neither be inferred from the behavior of Madame H.T. with her husband’s co-wife and mother in law, nor from her confession of having insulted her husband’s co-wife.
Women and Justice: Court: Supreme Court of Mali
Madame H.T. v. Monsieur Y.K. Supreme Court of Mali (2007)
Monsieur A.T. v. Madame A.D. Supreme Court of Mali (2004)
Both parties were committed to each other in a monogamous marriage. This commitment entails for the wife and husband multiple obligations. Among them, the obligation of cohabitation; the wife must live with her husband and her husband must welcome her. In this case, the husband granted his wife authorization to visit her parents. While she was away, he introduced another woman into his home. Following his wife refusal to come back, he demanded a divorce. The Appeal Court of Kayes held that the husband had broken his monogamous commitment and that the wife’s decision not to go back to her husband’s home until the other woman had left did not qualify for desertion. Hence the divorce at the wife’s tort was not granted. Rejecting this analysis, Monsieur A.T argued in front of the Supreme Court that bigamy cannot be presumed and was never proven and that a presumed bigamy did not exempt the wife from her duty of cohabitation (derived from the Code of Marriage and Tutelage). The Supreme Court held that by marrying a second wife without the express agreement of his lawful wife, the plaintiff had broken the rules of monogamous marriage. As a result, the Court Appeal gave sufficient legal basis to its decision. Moreover, monogamous duties should not be imposed to the wife once the husband had broken his commitment. Conditioning her return to a departure of the other woman did not constitute a desertion. Consequently the Supreme Court ruled in favor of the wife and rejected the divorce request. This case protects women married under the monogamous regime and counterbalances the strong requirement of cohabitation by ensuring that no psychological violence will be endured by having to live under the same roof as another wife.