By Hameed Ajibola Jimoh Esq.
I seek refuge with Allaah against Shaytaan (the devil), the outcast! In Allaah’s name, the Most Beneficent, the Most Merciful!
In Nigeria, there have been several matrimonial causes (cases or legal issues) arising from some Muslims’ marriages. There are however, those Muslims in States of the federation which have not desired to establish Shariah Courts to settle and or handle those matrimonial causes, the situation which makes those Muslims in those States to suffer continuously with no rescue, especially the Muslim women who seek Khul’u (divorce initiate by a Muslim wife against her husband). I have had several consultation too from some of those Muslim women who seek rescue from their marriage complained about since their husbands have refused to pronounce a divorce ‘talaaq’ on them and they require to marry another man. Even some of these Muslim women alleged that they even took their matters before the Shariah Council in Lagos State (for those of them in Lagos State) but their husband refused to honour the invitation or summons by the Shariah Council. Also, worsen by the facts that the Shariah Council is not a court of law established by law to compel any person to appear before it for whatever reason except to an extent of those who have submitted to it as an arbitration panel. Even as an arbitration panel, there is no Shariah court to where any party to such arbitral panel could appeal the decision of the arbitration panel, which still renders the Shariah Council somehow ineffective for lack of jurisdiction on almost the entire Islamic personal matters. I had recently written an article on the topic ‘A CRITICAL HIGH TIME FOR THE ESTABLISHMENT OF SHARIAH COURTS IN THE STATES OF THE SOUTH-WEST OF NIGERIA’, which was published online e.g. thenigerialaw.com, etc., wherein I had encouraged those States not currently having Shariah courts to establish same through the legislative processes, since the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution– permits the establishment having regard to sections: 275 and 277 of the Constitution. Prior to that article of mine, I was already into research on how to solve the headache of those Muslim women and what solution could they utilize under the Islamic law? As at the time of that article, it was not possible for me to arrive at any possible solution, so, I engaged in a deep prayer for Allaah’s guidance! Alas! I am strengthened with some solutions as rescue which form the bases or foundation of this current article and that is the reason for this article. I pray and I am hopeful that these acts or efforts of mine would be rewarding by Allaah and would be able to guide Muslims in those States of Nigeria which do not have any Shariah Court to resolve their matrimonial causes! May Allaah accept these efforts as act of sadaqatun jaariyah (i.e. a continuous good deed) and I seek my brothers in Islam to also always remember me in their good prayers while I continue to pray to Allah for more knowledge, wisdom and understanding!
First and foremost, marriage in Islamic law is the basis of every matrimonial causes which the Islamic personal law covers. Matrimonial Causes is defined under the Matrimonial Causes Act, 2004 (though, those matrimonial causes under the Islamic law would be those envisaged by section 262 and or 277 of the Constitution) thus
“Matrimonial cause” means-
(a) proceedings for a decree of –
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights; or
(v) jactitation of marriage;
(b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by decree or otherwise or of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation;
(c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a) or (b) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act;
(d) any other proceedings (including proceedings with respect to the enforcement of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in paragraph (a), (b) or (c) of this subsection, including proceedings of such a kind pending at, or completed before, the commencement of this Act; or
(e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave;’.
That is why where there is no marriage, either party of such purported marriage might find it very difficult to benefit anything from such marriage. Therefore, this paper is only useful in respect of those marriages conducted according to the Islamic law and not otherwise.
Furthermore, there are two (2) scenarios which this paper addresses vis-à-vis: i. a situation where the marriage is conducted in those States not having the Shariah Court; ii. a situation where this paper advises that the marriage be conducted in those States that have Shariah courts in which case, the marriage contract would have to be moved to either of those States that has Shariah Court for instance, moving from Lagos State to Abuja (north central) to conduct the marriage because of the established Shariah courts in that State or territory.
On the first scenario, I am not yet able to find any solution yet than for the elders in that particular State to give sermon to the husband to for Allaah’s sake pronounce divorce on his wife, else, the woman might continue to stand oppressed by her husband with no solution in that State and probably nothing anyone could do to rescue her for now unless Shariah courts are established by the House of Assembly of that State pursuant to sections: 38, 42, 275 and 277 of the Constitution. This situation no doubt has lured some if not many of those women into disregarding the Islamic need for divorce in such situation and going ahead to marry another man in which case, it is an Islamic principle under the Islamic family law that there cannot be two marriages at the same time- one must be invalid or null. Therefore, the second marriage cannot be said to be valid while the first marriage is yet to be validly dissolved. Therefore, any purported marriage conducted while the first marriage is pending and valid is likely to amount to an act of adultery on the part of the Muslim woman whereas the man has the right in the Quran and Sunnah to marry additional woman or wife up to a maximum number of four (4) under his control. The other solution in this case is that under section 14(a) and (b) of the Area Court Act of Abuja, which is shall discuss below. I had considered with great sympathy for those women especially where their husbands refuse to pronounce divorce on them as to whether the Shariah Council, in Lagos State for instance, could declare the marriage divorced in order to save those Muslim women who stand as oppressed by their husbands, but, on my further research, I discovered and viewed that the concept of ‘khul’u can only be validly utilized under the said matrimonial causes in two ways: i. by mutual consent of the spouses to marriage; ii. By the established court of law having jurisdiction on Islamic law matters. In the case of Wapanda v. Wapanda (2008) 1 NWLR (Pt. 1068) 364 at Pp. 392-393, paras. B-E, the Court of Appeal of Nigeria has held on Khul’u thus
‘As adumbrated above, under Sharia principles, and I agree with the learned counsel for the appellant in his submission, that the appellant has a right to seek for divorce by way of Khul’ if she becomes apprehensive that she is not in harmony with the husband. The law requires her to redeem herself from the marriage tie by giving up whole or some part or equivalent to the dowry agreed to be paid to her by the husband before their contract was affected. I agree with the respondent’s counsel too, that the respondent, being appellant’s husband had right to be consulted and be heard on the issue of Khul’. I am not however, in full agreement with the learned counsel in his submission that the issue of Kuhl’ personal to the parties and that it is the acceptance of it that validates the divorce. I find myself in dire need to repeat what I once said in the case of Usman v. Usman (2003) 11 NWLR (Pt. 830) 109 at pages 129-130, thus:-
“From all the above instances, it is clear that dissolution of marriage through the process of Khul’u does not require the Kadi to compel the wife to explain her reasons for so requesting. The Prophet did not inquire into the reasons why the two wives of Sufyan wanted to free themselves from his marriage-tie. The two Caliphs did not require the complainants before them to give explanations. It is purely a matter of contentment. Once the wife is discontented with the marital life in relation to that husband to the extent that it appears to the Judge that harmonious co-existence between the spouses is no more feasible and they shall transgress the bounds of Allah, then dissolution of the marriage by TALAQ simpliciter or through the process of Khul’u is the only answer. There may be cases in which a wife may not like to disclose her reasons for the Khul’u. Khul can, in general, arise under two circumstances:-
- a) When both the husband and the wife mutually decide a separation. This happens where there is mutual consent from the spouses to separate. The husband can divorce the wife with no difficulty subject to such terms if any as may be agreed upon between them. Here again, if it is the wife who wants Khul’u and the husband agrees to dissolve the marriage on certain conditions agreed upon between the spouses, there shall arise no difficulty. The spouses may not even have recourse to a law court.
(b) When it is only the wife who wants to get a release from the marriage-tie. This is a situation where the husband may appear to be unwilling to Khul’u and insists on the subsistence of the marriage-tie in spite of the wife’s resentment to it. This is where difficulties arise and controversies set in. In this situation it is only the wife who is desirous of the termination of the marriage. If the husband refuses to agree to Khul’u or if the spouses cannot agree to terms on which the marriage is to be dissolved, as is the factual situation in the appeal on hand, then the natural questions arising are: can anything at all be done in such a case? Is the wife at all entitled to get a separation and if so, under what circumstances? Can the Kadi dissolve the marriage even though the husband does not agree to it?”
I went on to answer the questions posed. I observed as follows:-
“This establishes the law that a wife cannot dissolve her marriage under Khul’u by herself. She has to get it done through the agreement of the husband or through the judicial process. On the extreme end it will work stupendous injustice on the wife if Khul’u shall be allowed solely in the hands of the husband to exercise such power only within his own discretion and it is not demandable by the wife as a matter of right under Sharia. The cases decided by the Prophet (PBUH) and the Caliphs strongly lead to the view that the decision of such a case does not depend on the sweet will of the husband“.
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It has been observed in this appeal that even from the word ‘go’, the parties were not ready for settlement. Paragraph 1 of the 1st Panels report indicated that confrontations and levy of accusations and counter accusations ensued against each other by the spouses. Secondly, from the findings of the 1st Panel, Paragraph 4(ii) the appellant when counseled against her decision at a family meeting, she threatened fleeing the country, should the family insist. The 1st Panel advised that practices abound where wives commit suicide where forced to continue with marriage against their will. Permit me My Lords, to again quote from my dictum in Usman v. Usman (supra):
“Our second point is the role of the Kadi i.e. whether the Kadi is bound to dissolve the marriage if it is established that a harmonious married life is not possible. The wife may not be able to live a happy life with the husband and the husband may refuse to divorce her. Then, does Islam forces her to live a miserable life in perpetuity and provides no relief for her? Can it be theorized that the unhappiness on the wife is no concern to the Sharia and it would rather let the wife adopt an undesirable course of conduct than to dissolve the marriage? It would certainly be unreasonable to think that the Sharia prefers that a marriage shall not be dissolved even when the wife cannot live within the bounds of Allah and may, transgress the bounds enjoined on a wife and when the very ends of marriage shall be frustrated and brought to ridicule. The Qur’anic exhortations to keep a wife with kindness require that if mutual love cannot work, husband should release the wife from the bond of marriage. If in spite of the wife’s unhappiness, the husband refuses to give her a release he shall certainly be guilty of non-compliance with the Qur’anic injunctions. The Kadi shall give a relief to the wife by ordering the husband to divorce the wife and on his failure or refusal to do so the Kadi shall become competent to pronounce divorce of the wife on behalf of the husband. See AL-KASANI (1327 AH) Badal al-Sana’I Vol. II page 323, Cairo. This was what the Prophet (PBUH) and the two Caliphs referred to supra, exactly did. This is what the trial court did but the appellant in this case refused to collect the consideration offered by the wife.’.
The Court further went on to hold as follows
‘Agreed that some husbands may be at pleasure to put to hardship the wife who indicates her resentment in keeping the marital tie. It may also be vice-versa. What the law stipulates as general rules in this situation are two (a) that the law cannot help the wrong-doer or a transgressor and (b) that the party shall be helped by law which is less at fault of the two. Thus, it will be ridiculous, where it is apparent to the court that harmonious marital life is not practicable between the spouses, example of where a wife is ready to ‘forego paradise (ALJANNA) “than to keep on with the marital tie, and the Judge (Kadi) shall appear to be a toothless bulldog who can bark but not bite then his determination of the matter would become meaningless. In Bilqis Fatima v. Najmul Ikran (1959) PLD page 566 at 594, a Division Bench of the High Court of West Pakistan, Lahore, after discussing the matter of Khul’u extensively, came to the decision that the wife was entitled to dissolution of marriage on restoration of the benefit she had received from the husband if the Judge apprehends that the parties will not observe the limits of God.”
In the appeal on hand, there are threats from the appellant to flee the country if compelled to continue her stay with the respondent. Should the court encourage her to flee the country or commit suicide on an issue that the court has power to resolve? My answer is in the negative.
It is rather an unfortunate situation that a marriage that has lasted for over two decades and blessed with four children, that it will have to end in a chaotic manner. Although the appellant has refused to divulge the reasons why she wanted the marriage determined through Khul’. Well she is entitled to keep her reasons undisclosed. See the case of Usman v. Usman (supra). It must be restated that Islamic Law is a reasonable and rational law. It is organic and developmental. It grows with the society. It is humane and comprehensive. It takes care of all and sundry. It outlaws high handedness and oppression. It establishes justice and peace in society. It sets out rules for a harmonious co-existence between people and especially between spouses such that one does not oppress the other.
In the final result, I find merit in this appeal and same is hereby allowed. I set aside the decision of the lower court. I endorse that part of the decision of the trial court that the parties should get separated as husband and wife through the process of Khul’. This matter should be sent to another Upper Area Court to determine the marriage between the spouses through Khul’ as may be agreed upon by the spouses or as the Court may use its judicial powers to fix the amount of Khul reasonably without causing undue harm to any of the parties.’.
Now, the problem in this our present situation is that there is no mutual consent between the two spouses which means that the woman must have to approach an Islamic (Shariah) court to seek divorce where her husband has refused to pronounce divorce on her. Now, how would she achieve this goal of divorce where there is no Shariah Court in her State?! She is hooked up and become more depressed! May Allaah make it easy for these States to establish Shariah Court to enable these women to be able to seek rescue from the oppression of their husband (as well as in situations where it is the woman that is the oppressor oppressing her husband)! These are the only solutions that I have considered to handle this situation which is that the husband should be encouraged to pronounce divorce on the woman and this is where I see our Islamic leaders to have to be efficient and effective with due respect to them, to come to the rescue of these women.
This first situation leads me to the second situation which is a situation where this paper advises that the marriage be conducted in those States that have Shariah courts in which case, the marriage contract would have to be moved to either of those States that has Shariah Court for instance, moving from Lagos State to Abuja (north central) to conduct the marriage because of the established Shariah courts in that State or territory i.e. Abuja for instance. The use of Abuja as a case study is because Abuja is almost central to all the northern states. On this issue, I advise Muslims who are intending Islamic marriage contract (‘aqdun-nikaah’) to conduct their marriage in any State that has Shariah Court (even if they do not reside within that State) so that that particular Shariah court would have the jurisdiction to hear any matrimonial causes or other Islamic personal matters such as custody of the children of the marriage, succession or inheritance, maintenance, etc., arising from such marriage. I have used the Federal Capital Territory- Abuja as a case study. Section 1(1) and (2) and 14 of the FCT Abuja Area Courts (Repeal and Enactment) Act, 2010, is the authority for my submission which provide thus:
- (1) There is established such grade of Area Courts for the Federal Capital Territory, Abuja,
(2) An Area Court shall exercise the jurisdiction conferred upon it by or under this Act within the area and to the extent specified.
- All civil causes or matters shall be tried and determined by an Area Place of hearing Court which has jurisdiction over the area-
(a) in which the defendant is ordinarily resident;
(b) in which the defendant was at the time when the cause of action arose; or
(c) where the transaction occurred.’.
Also important are the provisions of sections: 10 and 11 of the Area Courts Act, which provide thus
‘10. (I) Subject to the provisions of this Act and of any other written law, any person may institute and prosecute any cause or matter in an Area Court
(2) A person who institutes or prosecutes any cause or matter in an Area Court under subsection (I) of this section shall, in that cause or matter be subject to the jurisdiction of that Area Court and of any other court exercising jurisdiction in that cause or matter.
- (I) Subject to the provisions of this Act and of any other written law, the following persons shall be subject to the jurisdiction of Area Court-
(a) any person who is a Muslim;
(b) any other person in a cause or matter who consents to the exercise of the jurisdiction of the Area Court.’.
It is my humble view that section 14(c) of the Area Court Act (supra) would confer the Area Court of Abuja (where the transaction (i.e. the marriage) occurred (even after many years)’ to try and determine such matrimonial causes between those Muslims. This is the rescue that this paper offers to the intending Muslims for Islamic marriage to move to e.g. Abuja or any State that has the same provisions as the Area Court of Abuja in section 14(c) (supra), else, they are likely to fall in the difficult category of the first situation narrated above in this paper. The other rescue is where the marriage is contracted and or conducted in that State that has no Shariah Court but at the time when the matrimonial causes arise or the Muslim woman (wife) requires khul’u, the defendant is resident in Abuja (relying on section 14(a) of the Area Court Act (supra) or the Defendant was in Abuja as at the time when the matrimonial causes arise or the khul’u matter arose (even if he later relocated out of Abuja, it would no more matter that he is currently not residing in Abuja). See: section 14(b) of the Area Court Act (supra).
Furthermore, there is another legal issue which I had considered too as to whether such Muslims must be physically present in the case of section 14(c) of the Area Court Act (supra) or the marriage contract could be contracted Using Instantaneous Electronic devices of Communication such as zoom, etc.? This would be the subject of another article by Allaah’s grace!
Finally, it is my humble view that section 14(c) of the Area Court Act (supra) would confer the Area Court of Abuja (where the transaction (i.e. the marriage) occurred (even after many years)) the jurisdiction to try and determine such matrimonial causes and or other Islamic law matters between those Muslims. This is the rescue that this paper offers to the intending Muslims for Islamic marriage to move to e.g. Abuja or any State that has the same provisions as the Area Court of Abuja in section 14(c) (supra), else, they are likely to fall in the difficult category of the first situation narrated above in this paper. The other rescue (for those women already in Islamic marriage and require rescue from the marriage) is where the marriage is contracted and or conducted in that State that has no Shariah Court but at the time when the matrimonial causes arise or the Muslim woman (wife) requires khul’u, the defendant is resident in Abuja (relying on section 14(a) of the Area Court Act (supra) or the Defendant was in Abuja as at the time when the matrimonial causes arise or the khul’u matter arose (even if he later relocated out of Abuja, it would no more matter that he is currently not residing in Abuja). See: section 14(b) of the Area Court Act (supra). This is what I advise our Muslim intending couples to do so as not to be in difficult situation sooner or later having regard to the challenge of not having Shariah Courts established in their States. Though, the solutions provided might be for a time pending when Shariah Courts would be established in all the States of the Federation or in the State where the Muslim who desires resolution of his or her matrimonial causes to be resolved.
Furthermore, I am open to consultation on how these Shariah/Islamic matters could materialize in the interest of justice, by any of the States that has no Shariah Court or any Muslim in need of my legal knowledge on these issues.
In conclusion, I accept every error of thought and reasoning and writing etc. in this paper as that of mine. I assure that the error is not made deliberately but as a human error and I accept responsibility for such error while I pray to Almighty Allaah to forgive me and overlook my shortcomings made in this paper and to accept it as rewarding deed for me and as a source of granting me Al-Jannatul Firdaws! Aamiin!
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