CHAPTER
ONE
GENERAL
INTRODUCTION
1.0.0 Introduction
In many societies particularly in Nigeria, marriage is
regarded as a prominent prerequisite for the establishment of a legitimate family[1]. However, where a country is inhabited by people of
different cultures and religions, it will also witness application of different
systems of law[2] pertaining to their respective customs and this
reflects mostly in the forms of their ceremonies including marriage and even
the dissolution. Nigeria is among such countries because about
half of the population in the country is Muslim, followed by a large percentage
of Christian, and a minority population of traditional religious practitioners
and atheists[3].
Islamic
Marriage is marriage conducted according to the tenets of Islamic law. Like
customary law marriage, no certificate is issued. It is also not limited to one
man and one woman. Indeed, a man can marry as many as four wives provided he is
capable of meeting the requirements and conditions stipulated under Islamic
Law. This research work, takes an in
depth look at dissolution of marriage in Islamic Law: Problems and
Prospects.
1.1.0 Background to the Study
Marriage customs vary in Islamic
majority societies. The Hanafi, Hanbali, and Maliki Islamic Jurisprudence
Schools all posit marriage is recommendatory, while the Shafi Islamic
Jurisprudence School considers marriage to be (mubah) preferable[4]. The general principle of the aforementioned
dictates center on the Prophet Muhammad and his efforts to enjoin his followers
to marry. The Qur’an says:
“And
among His signs is this, which He created for you mates from among yourselves
that you may dwell in tranquility with them, and He has put love and mercy
between your hearts.
Undoubtedly in these are signs for those
who reflect.” (30:21), and “And Allah has made for you your mates of your own
nature, and made for you, out of them, sons and daughters and grandchildren,
and provided for you sustenance of the best.” (16:72). Islamic law dictates
that marriage cannot be forced and is
recognized as a contract [5].
As written in the Qur’an, it is also
lawful for a Muslim man to take up to four wives, provided he treats them
equally: “If ye fear that ye shall not be able to deal justly with the orphans,
marry women of your choice, two, or three, or four; but if ye fear that ye
shall not be able to deal justly (with them), then only one, or that which your
right hands possess. That will be more suitable, to prevent you from doing
injustice.”
Islam recognizes dissolution of marriage
or divorce, yet it tries to discourage it by all mean. Mahmud
Abdul Malik Bappa[6], “the Prophet of Islam told the
believers that ‘among all the permitted acts, divorce is the most hateful to
God’” . The Prophet Muhammad also proclaimed:
“The
most perfect in faith amongst believers is he who is best in manners and
kindest to his wife”.
However, today there are separate rules
of dissolution of marriage for men and women under the laws of Sharia. The
inequity in dissolution of marriage lies in the idea that men seem to have
absolute power in obtaining a divorce. The interpretation of scholars in the past
has been if the man initiates the (talaq), then the reconciliation step for appointing
an arbiter from both sides is omitted. When a man initiates the three steps (initiation,
reconciliation, and completion) of dissolution of marriage, he must pay the
dowry in full or allow the wife to keep all of it if she has already been given
it in full. The Qur’an explicitly prohibits the divorcing husband from taking
back their marriage gifts to their wife:
“But
if you decide to take one wife in place of another, even if you had given the latter
a whole treasure for dower, take not the least bit of it back; Would you take
it by slander and a manifest wrong? [7]”.
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.
Like previously mentioned above, in the
laws of Islam (sharia) there are three ways to dissolution of marriage, each
with separate rules. When a man has initiated it, the procedure is called
talaq. 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.
1.2.0 Objectives of the Study
The
main objective of the study is to examine the dissolution of marriage vis-à-vis
who initiates the dissolution under the Islamic laws.
The
specific objectives are to;
assess
the adequacy or otherwise of the laws relating to dissolution of marriage in
Islamic Law
evaluates
the problems and prospects of dissolution of marriage in Islamic Law
examine
the rights of the husband and the rights of the wife
1.3.0 Focus of the Study
In
the discussion of the dissolution of marriage in Islamic Laws, attention will be focused on the
discriminatory aspects of the laws, that is to say, discrimination that exists
on the power vested on the husband who are entitled to initiate the dissolution
of the marriage (Talaq)
and is easily obtained, while the wife who initiated the dissolution of the
marriage (khul’i) is typically quite difficult to obtain.
In this connection, the research considers the following questions: Are women
entitled to some properties after dissolution of marriage in Islamic Laws?
1.4.0 Scope of the Study
The
study is limited to a discussion of the full range of the laws of dissolution
of marriage of the various Islamic laws.
This study is concerned with the problems and prospects of dissolution of
marriage in Islamic laws. In the same
vein, custody of the children will be discussed.
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[1] Abdulmalik, S. M.
(2008). “Double-Decker Marriage under the Nigerian Law”.vol. 1 No. 1 LCULJ, 170.
[2] Ambali, M. A. (2003).
The Practice of the Muslim Family Law in
Nigeria. 2nd ed. Zaria: Tamaza Publishing Ltd.
[3] Asein, J. O. (2005). Introduction to Nigerian Legal System.
Enugu: Ababa Press Ltd.
[5] Olufon, K. (1970). “A
critique of the Law relating to conversion of marriages in Nigeria”. vol. 5.The Lawyer.pp.26 – 33.
[6] Mahmud Abdul Malik Bappa (2008), A brief history
of Shariah in the defunct Northern Nigeria (Jos University Press
Nigeria).
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