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JUDICIAL DIVORCE UNDER ISLAMIC LAW IN NIGERIA

CHAPTER ONE

INTRODUCTION

1.1        Background to the Study

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should he avoided. Initially no marriage is contracted to he dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Islamic law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However, in whatever manner the divorce is affected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. In the laws of Islam (sharia) there are three kinds of divorce, each with separate rules. When a man has initiated a divorce, the procedure is called talaq. [1]

When a husband accuses his wife of adultery without supplying witnesses and the wife denies it, the process is called li’an. When a woman has initiated a divorce it is called khul’i. Talaq is easily obtained, while obtaining khul’i is typically quite difficult.

TALAQ: is a verbal noun from Arabic verb talaaq. Which means to unties, to free. Technically, talaaq is a unilateral power vested in Muslim husband to repudiate his wife as and when he wishes. The word Talaaq is usually rendered as repudiation, its comes from the in roots ‘Talaaq’ which means to release (an animals) from the tether. The wife or free her from the bondage marriage in law it signifies the absolute power  which the husband possess of divorcing of his wife. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower). When the husband exercises his right to pronounce divorce, technically this is known as Talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize its differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in Islam. All that is necessary is that the husband should pronounce Talaaq; how he does it, when he does it, or in what he does it is not very essential. Among the Sunnis, talaaq may he express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

 In Talaq, (divorce) the husband does not have to use the exact words “I divorce thee” or “1 divorce you.” Shariah law allows for other phrases. Thus, there are two types of talaq declarations: 

-       Talaaq-Sareeh: This is a clear declaration of divorce such as “I divorce thee”

-       Talaaq-Kinaya: An unclear or indirect declaration of divorce, using words that are not exclusively prescribed for issuing divorce, but alludes and hints to it.

Islamic scholar Ibn Abdul-wahhab gives as examples of Talaq kinaya declarations: “you are divorce”, “you are clear”, “you are irrevocable”, “you are cut off”, “you are concluded”, “you are a free woman”, “you are forbidden”.

According to at least one school of Islam Talaq-Kinaya will result in irrevocable divorce (TalaaqBayyin) if the husband intended to give talaaq, but does not count if he did not intend to indicate divorce. [2]

1.2        Statement of the Problem

Right to maintenance of a wife is very fundamental in both Islamic and statutory laws applicable in Nigeria. Several researches have been conducted and many books published on this topic in the two legal systems. However, every now and then, you find cases of dispute between spouses arising from violation of such right to maintenance which in many instances leads to divorce. The question is do the husbands allow their wife‟s to freely enjoy these rights if they are aware of them? And to what extent Islamic and Statutory laws provide for wife‟s right to maintenance? If there are clear provisions then why is it that cases are repeatedly seen between spouses due to lack of maintenance? These and many other problems are going to be examined in this research.

1.3        Aims and Objectives

The main aim of this research is to find out the judicial divorce under Islamic law and the statutes respectively with the view to achieve the following objectives:

i.  To examine the provisions on divorce under Islamic and statutory laws.

ii.  To find out the differences and similarities of divorce and family maintenance under Islamic and statutory laws.

1.4        Justification

This research was embarked upon to clarify a lot of misunderstanding among spouses as to the issue of divorce and family maintenance that can go against divorce and also to provide additional material for students and other interested persons.

1.5       Research Methodology

The methodology adopted in this research is doctrinal as well as empirical. The Qur‟an and Sunnah, being the primary sources are relied upon, even though references to some  secondary sources is made occasionally i.e. deductions from books, journals, and articles. And questionnaires were also administered and data analysed.

1.6       Literature Review

Some good literatures on the subject are available. Though they deal with only one aspect or the other of this topic and not particularly centred on this topic. So research has to be undertaken with recourse to various sources to bring about this work.

Hammuda Abdal Ati in his book titled: The family structure in Islam[3]made some contribution on this topic. Hetalked about maintenance and its component, where he made reference to residence only. He also brought the issue of other component of maintenance where he talked on the issue of maintenance of a sick wife, maintenance in recalcitrance and maintenance on poverty. The writer however did notemphasis on other issues such as, maintenance of a working wife, maintenance during absence of the husband.

 In Sheikh M. T. El-Imairi‟s Personal status in Islamic law,[4] He discussed the issue of maintenance at length even though he left out some important aspect. He discussed the scale of maintenance of a wife, conditions of entitlement to maintenance but did not go into details in his discussion. He also discussed maintenance when due and when accumulated. However, the writer left out issues like maintenance of wife under special circumstances such as, maintenance of a wife in the absence of a husband, maintenance of wife during poverty of husband, and maintenance of a sick wife. Under this subtitle, the writer only discussed maintenance of a working wife and a disobedient wife.

 Muhammad Aminu Gurin in his book titled An introduction to Islamic family law[5] also contributed in this area of study. He also discussed the conditions of entitlement to maintenance, the incidence of maintenance, accumulation of maintenance. However, the writer also left out some issues regarding maintenance of a wife under special circumstances

Another good literature is the LL.M thesis of Muhammad Arsalan Muhammad titled: The Rights and Obligation of Spouses under Islamic Law.[6] Thewriter discussed maintenance of a wife under Islamic law at length. He discussed maintenance, condition that must be fulfilled before a wife is entitled to Nafaqah, wife‟s right to medication, wife‟s right to burial expenses

and also her right to education.

Abdullahi,M.J in his book titled; Al- kawaakib ad-Darriyyah Fi Fiqh al Malikiyyah[7],also contributed to this literature. He classified wife‟s into two categories those whose marriage is consummated and those whose marriage is not consummated. The financial status of the spouses, and the circumstances in which the wife loses her right to maintenance. the writer did not discuss maintenance of a wife during the iddah period, maintenance where the wife is sick, and during absence of the husband. This literature will cover all these areas that the writer fails to cover.

Another writer that contributed to this literature is Abubakar Al Jaza‟iri in his book titled: A book of greed, manners, character, act of worship and other deeds[8].The writer discussed those that are obliged to give maintenance and those that must give it. He discussed maintenance generally i.e. the wife from her husband either married or divorced revocably, a pregnant woman who is divorced irrevocably, and went further to discuss maintenance of parents by their adult children. The writer also discussed the quality and quantity of maintenance of a wife which is based the financial status of the husband. He further discussed when maintenance is not required, a recalcitrant wife, a pregnant divorced wife when she gives birth, and an irrevocably divorced woman. The writer however did not discussed when maintenance becomes due to a wife, maintenance of a sick wife, maintenance of a working wife, maintenance of a wife when the husband is absent

 Also, the LL.M thesis of I.N. Sada titled: Dissolution of Marriage in Islam[9] contributed to this literature. The writer discussed maintenance of a wife during iddah period and also what will be the consequences of lack of maintenance of a wife. Other aspect of maintenance of a wife under Islamic law that the writer left out are, conditions for entitlement to maintenance, when maintenance becomes due and maintenance of a wife under certain circumstance.

 Jummai Audi also made some contributions to this literature in her LL.M thesis titled: The Rights of Spouses in Marriage under the Statutes and Islamic Law in Nigeria[10]. She discussed maintenance of wife under statutory law and Islamic law, the extent of maintenance i.e. the financial ability of the husband, the standard of living of the wife prior to the marriage and the prevailing customs and practices of the people of the community of the spouses. Also discussed are the conditions for entitlement to maintenance such as maintenance of a recalcitrant wife, maintenance during arrest, maintenance of a working class wife, maintenance due to poverty of husband and maintenance during the waiting period. The writer did not discuss some aspect of maintenance of wife under statutory law such as the criteria for consideration of the award of maintenance of wife and the common law duty to maintain a wife.

In Nigerian Family Law by E. I. Nwogugu[11], the writer also contributed in this subject. He explained maintenance of wife at common law where he discussed a wife as an agent of necessity, he focuses on maintenance of a deserted wife and where the husband drives her out of the matrimonial home. He further discussed termination of the husbands liability, i.e. where the wife commits adultery, on desertion and on the death of the husband. Also discussed are the criteria for consideration of the award of maintenance under the Act i.e. means of the parties, earning capacity of the spouse, conduct of the parties and all the relevant circumstances. And lastly he talked on maintenance of a wife after divorce and maintenance of wife by agreement. The writer however failed to discussed in detail maintenance of a wife generally. i.e. at common law.

 In Broomley‟s Family Law[12], the writer did not vividly explained maintenance of wife under statutory law. The writer discussed the duty to maintain a wife at common law and the current position of maintenance of a wife which the statutes entirely govern. He also discussed the enforcement of the duty to maintain a wife at common law briefly and went further to discuss the wife as an agent of necessity. The writer however left some loopholes by not discussingthe assessment of maintenance orders which shall bediscussed in this thesis.

 Another author that contributed to this literature is Margaret C. Onokah in her book titled Family Law19. The writer briefly discussed maintenance under the statute. Also discussed is the spouse‟s agreement to maintenance and settlement, maintenance pending the disposal of proceedings, maintenance of the divorced spouse as contained in section 70 (1) of the matrimonial causes Act, and lastlythe assessment of maintenance orders. Thegap left by the writer is the common law duty to maintain a wife.

Chinwuba Obi in his book Modern Family Law in Southern Nigeria[13] made a discussion on maintenance of a wife though briefly. He discussed the duty of maintenance under the general law, maintenance orders under the general law, maintenance orders and enforcement of maintenance order. The wife‟s liability to maintain her husband under English law was also discussed in the book. The writer however did not discussed the criteria for consideration by the court to grant maintenance and agreement to maintain a wife.

 However, this literature intends to cover the gaps bridged by authors of the books used. This literature will discuss issues like maintenance of wife under special circumstances which include; maintenance of a sick wife, maintenance of wife in the absence of the husband, maintenance of wife during poverty of the husband, maintenance of wife during iddah period. Other aspect which the writer intend to cover are: conditions for the entitlement to maintenance and maintenance of wife when due .Under the statutory Laws, this literature will cover up gaps left by other authors such as; Criteria for consideration of the award of maintenance, assessment of maintenance orders and common law duty to maintain a spouse.

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