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A COMPARATIVE STUDY OF WIFES RIGHT TO MAINTENANCE IN ISLAMIC AND STATUTORY LAWS IN NIGERIA: A CASE STUDY OF ZARIA AND SABON-GARI COMMUNITIES OF KADUNA STATE

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 Format: MS WORD ::   Chapters: 1-5 ::   Pages: 56 ::   Attributes: Reviews ::   253 people found this useful

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CHAPTER TWO

2.0       MARRIAGE UNDER ISLAMIC AND STATUTORY LAWS

2.1        Introduction

 Nikah in its primitive sense means carnal conjunction. Some have said that it signifies conjunction generally. Legally, it implies a particular contract used for the purpose of legalising generation.[1] It is also defined as an institution ordained for the procreation of society and in order that human being may guard themselves from foulness and unchastely.[2]

Marriage under Islamic Law is a divine institution which is both contract and covenant made between a man and a woman which once conducted give rise to certain rights and obligations. For these rights and obligations to accrue, certain conditions must be satisfied. Some of these conditions pertain to the contract itself and others to the contracting parties.Allah

(S.W.T.) described marriage in the Qur‟an as a solemn covenant between Allah and the human parties and between the parties themselves.[3]

 The relationship of marriage is regarded to be based on strong bond and challenging commitment .It is a commitment to life itself, tosociety, and to meaningful survival of the human race. It is a commitment that marriage partners made to one another as well as to God. It is a kind of commitment in which they find mutual fulfilment and self –actualisation and realization, love and mercy, compassion and comfort. Allthese are because marriage is regarded in Islam first and foremost as righteous act and that of responsible devotion.[4]

Marriage is an important means of protecting moral virtues of the society from deterioration and total collapse, this is based on the fact that sexual urge is naturally satisfied through marriage.

 Marriage was instituted to ensure the permanence of the marriage relations by which foulness may be prevented thereby promoting a normal family life. It is also an institution by which procreation of children is allowed and the legitimacy of the children is established .The Holy Quran 30:20 states: “And among his signs is that he created for you mates from among yourselves that you may dwell in tranquillity with them, and he has put love and mercy between your hearts, verily in that are sings for those who reflect[5].

The traditional principle upon which the institution of marriage is founded is that a husband has the obligation to support a wife, and that a wife has the duty to serve. This means that the husband has the duty to provide a safe house, to pay for necessities such as food and clothing, and to live in the house. A wife's obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. 

 A statutory marriage may be celebrated either in a church duly licensed for the celebration of marriages or at a marriage registry or in any other place indicated as a special license where this is used.[6]A marriage may be celebrated in a church by a recognized minister of the denomination or body to which it belongs and in accordance with the marriage rites or usages of the said church, denomination or body.[7] The ceremony must take place with the doors open, and in daylight hours, to wit, between 8 o‟clock in the morning and 6 o‟clock in the evening, and in the presence of at least two witnesses apart from the officiating priest.

The certificate must then be signed in duplicate by the officiating priest, the married couple and two or more witnesses to the marriage. The married couple must be given one of the certificates while the other is sent to the local registrar of marriage.[8]

2.2       The Purpose of Marriage under Islamic Law

 The general purpose of marriage is that the couple can provide company to one another, love one another, procreate children and live in peace and tranquillity to the commandments of Allah.[9]Itserves as a means to emotional and sexual gratification and as a means of tension reduction mechanism. It is also a form of ibadah because it is obeying Allah and his messenger

i.e. Marriage is seen as the only possible way for the sexes to unite.[10]

Marriage beinga strongcovenant[11], it is not a matter which can be taken lightly. It should be entered into with total commitment and full knowledge of what it involves, that is why Allah

(SWT) says in the Holy Qur‟an 30:20, the call is addressed entirely to mankind to be dutiful to Allah who created him from a single soul, and from it created its mate, and from the two of them scattered abroad, many men and woman[12] with the creation of men and women by Allah love for one another, procreation of children and living in peace and harmony with one another would have been a nightmare without marriage. Qur‟an 16:72 provides thus:Allah has given you wives from among yourselves, andthrough them He has provided you with good things: will they then believe in falsehood and deny his favours?”[13]

Apart from the above and many other Qur‟an provisions on the purpose of marriage, there are also a lot of prophetic traditions further explained and buttressed the purpose of marriage institution. The Prophet (SAW) was reported to have advised in one tradition: “O you young men, whoever is able to marry should marry for that will make him to lower his gaze and guard his modesty”.[14]

 Marriage therefore can be regarded as the first cohesive force that makes civilization of man a practical reality without which there would have been no family, kinship, forces of unity, civilization, etc. It is through the institution of the family that humanity is united and civilization made possible. The home is, in fact, the first training ground for love and service. Marriage therefore apart from its role as a religious sacrament can as well regarded as a social contract.

2.3        Requirements of a Valid Islamic Law Marriage 

 Marriage as a contract under Islamic Law between two parties rest its validity on certain requirements without which there cannot be valid and lawful marriage. These requirements are: offer and acceptance, guardian, witnesses, dower and the parties.

2.3.1 Betrothal (Khitbah)

 There are preliminary steps taken as soon as a man thinks of getting married. From the period that the man made up his mind that he would marry the proposed wife; some steps must be taken before the final conclusion of the marriage. These steps are referred to in Arabic as Khitbah. The man should acquire as much knowledge as possible about the woman he intends to marry. If however he is convinced that the woman he is proposing would be his suitable mate, then it is recommended that he should look at her in accordance with the stipulation of the Holy Quran. He should look at her face and her hands only so as to gain sufficient idea about her personality and beauty.[15]It is forbidden for him to gaze at her in a passionate way as both sexes are ordered by the holy Quran to lower their gaze and guard their modesty and chastity. Quran 24:30 states: Say to the believing men and women to turn away their eyes (from what is unlawful) and to restrain their sexual desires .This will make their lives purer. Allah has knowledge of all their actions.”[16]

 The suitor may be allowed to sit in a room with the proposed woman provided she is decently dressed and with a mahram i.e. near relative that is within the prohibited degrees of marriage, such as father, mother, brother, sister etc. needs to be present with them. The prophet

(PBUH) has said: “A man and a woman should not be alone in a secluded place because the Satan will be theirthird.[17]

The man should also consider the quality of the woman he desired to marry. It is reported that the Prophet (SAW) said “A woman is married for her wealth, herfamily, herbeauty, and her piety.[18]Also, the lady to be betrothed must be lawful for the suitor to marry i.e. there should be no marriage impediments between them and she should not be betrothed to another man upon whom she has already inclined. This practice is peculiar to some ladies, most times a girl will have so many suitors at a time and all are willing and ready to marry her. This practice is prohibited as it will create enmity between the Muslim brother. The Prophet (SAW) was reported to have said: “A believer is a brother to a believer; hence it is not lawful for him to bargain upon the bargain of his brother, nor propose the hand of a girl/woman upon the proposal of his brother, until the latter (voluntarily) withdraws the proposal”.[19]

 


[1] The Hedayas (1979) Commentary on Islamic  Law, Hamilton, New Delhi. p. 25

[2] Ameer.A(1976) Mohammadan Law, 7th ed. p. 241

[3] Cited in Hamuda .A.A (1982) The Family Structure in Islam. Op.cit p.60

[4] Hamuda A.A,(1978) Islam in Focus, International Islamic Federation of Students Organisation. p 128

[5] Zayid,M.Y(1980) Op.cit p.297

[6] Chinwuba Obi S.N (1996) op.cit

[7] Sec 22 of the Marriage Act, Cap.M6 LFN 2004

[8] Ibid Sec. 25.

[9] Concept of Marriage in Islam. http://www.islamawareness.net/marriage/marriage _article001.html retrieved on 18/4/2014

[10] ibid

[11] Gurin. A. M (1984) Prerequisites of Marriage under Islamic Law: Their Application in the Northern Nigeria. LL.M Thesis unpublished

[12] Zayid, M. Y. (1980) Op.cit p.297

[13] Ibid p.195

[14] Al-Jaza’iri,A(1976).Hadith of the Messenger of Allah (S.A.W), Minhajul Muslim, p. 372

[15] Dasuqi.M.(n.d) HashiyatadDasuqiAlasharh al-kabir,Dar al Fikir,Beirut,Lebanon.vol.2,p.215

[16] Zayid,M.Y(1980) Op.cit p.256

[17] Sabiq.S (1983) Fiqh as Sunnah,Dar al-Fikir,Beirut,Lebanon.Vol.3,p.27

[18] Ibid Vol.2 p.18

[19] Al-Sabunie ,M.A (1991)Azzawai al islamie almubakkirsa’adatanwahasanahDarulQalam, Dimashq. Cited in M.M Arsalan (2015) Islamic marriage rights and obligations,Ahmadu Bello University Press Ltd, Zaria, Kaduna State.


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