Court Marriage And Muslim Marriage: Revisiting The Case Of Muhammed Vs. Muhammed
By: Abdulrasheed Ibrahim, LL.M,Notary Public
Recently and precisely on 3rd August 2022, the Kwara State Sharia Court of Appeal (SCA) unanimously came up with a decision that a Muslim man that married a woman under the Marriage Act must first legally put an end to that before being at liberty to marry other women under the Islamic Law. This decision went viral and has generated a lot of interests and controversies as to its propriety. Under our judicial system in this country, the best place to test the propriety and soundness of a decision is at the Court superior to the court that delivered a decision which a party is aggrieved or dissatisfied with. In the present circumstance, the Court of Appeal is the best place to test the decision under review. The decision in APPEAL NO: KWS/SCA/CV/AP/IL/14/2022- NIKE MUHAMMED & 1 OTHER Vs. MAIMUNA MOHAMMED & OTHERS came before the SCA as an appeal lodged by the Appellants against the dismissal of their preliminary objection challenging the jurisdiction of the Upper Area Court 1, sitting in Ilorin to entertain the suit brought before it by the Respondents. Upon my reading the decision on my Class Whatsapp Platform, I said :
“This judgment is a very sound one. Some Muslim men always make the mistake that having married under the Act and being Muslims they are still entitled to more than one wife. They get it wrong. As long as they surrender to the marriage under the Act, they have disentitled themselves from that right. They cannot eat their cakes and still have it.”
I came across some opinions that thought otherwise and disagreed with the decision of the SCA under review. Before going on to justify my position; there is the need to express these words of caution to every one of us. While one must appreciate the right of individual to the freedom of speech and expression, it will amount to gross abuse of such right, if it is carried to the extreme rather than being objective and constructive in our criticism. I vehemently oppose the style adopted by the Learned Senior Lecturer from the Faculty of Law of Kwara State University in his critique as it depicted an act of attacking a particular judge (Kadi) in a Three-Member Panel that gave the unanimous decision of the SCA. The attack was even extended to some of the Scholars that authored the books referred to in the decision. The disclaimer contained in the critique is an admission of that and did not serve any purpose. One thing that is becoming too rampant in the legal profession today is that many of our colleagues are not heeding the advice that had been given by those that matter in the profession. It was the late Justice Candid Ademola Johnson, a former Chief Judge of Lagos State who sat as the court of first instance in the celebrated case of Fawehinmi Vs. NBA that said :
“I cannot end this ruling without placing on record the court’s appreciation of the assistance it has derived from the research and industry put into the preparation and presentation of the respective cases of the parties by the learned counsel in the matter. I must however sound a note of disappointment and regret about what I believe is the over-reaction of the plaintiff to the whole episode by the violence of his language particularly in describing the steps taken by the learned SANs as dishonest. I must say that the beauty of language particularly among the members of this honourable profession is the restraint exercised in its use .It is the tool of our profession and we must show leadership in the caution with which we blend and use it. I do hope the plaintiff would take note of this for the future”.
Now coming to the issue at stake, .I must admit first that the few pages here will not be sufficient to discuss exhaustively the concept of the Marriage under the Act vis-a vis under the Islamic Law, but I will try as much as possible to limit myself to the area relevant to the issue on the decision under review. For the purpose of easy understanding by those who are not lawyers I will adopt the explanation given in the book titled YOU AND YOUR RIGHT published by the Reader’s Digest of London to depict the Marriage under the Act :
“The law gives special rights and protection to the partners in a marriage but only if the marriage is legally valid. Simply living together confers few of those rights. In a legally valid marriage, a man and a woman unite as husband and wife, and in many respects they may be treated as one. They accept the duty to live together, behave reasonably towards each other, and support each other. Each has the right to be maintained by the other and to have reasonable sexual relation – to the exclusion of anyone else .Marriage must be entered into voluntarily , but it cannot be ended merely by agreement .Unlike any other contract, it lasts for the life unless it is dissolved by a court decree.”
The fact that the Marriage under the Act is often referred to as Court Marriage is apparent from the above explanation that is, it is a marriage that cannot be ended merely by agreement and that unlike any other contract it can only be dissolved by a court decree. On how marriage can be dissolved under some native law and custom, the Court of Appeal of this country has made the point clearer in the case of NWANGWA & ORS Vs. UBANI & ANOR. (1997) 10 NWLR (Pt. 526) 559 , where it was held that : “Unlike the English law, dissolution of marriage under native law and custom can be extra-judicial .No grounds for divorce need be alleged or proved .It is sufficient for a husband to arrange a meeting where he duly informs his parent-in-law of his intention to bring the marriage to an end”.
It needs also to be pointed out here again as emphasised in the decision under review that unlike under the Marriage Act where a wife enjoy the exclusivity of her husband, the relationship being strictly monogamous in nature, such exclusivity does not available to a wife under the Islamic Law of Marriage as the door is left open to a Muslim husband to embrace polygamous marriage if he has the capacity to do so and where there is no capacity to do so, he can decide to remain monogamous. As mentioned earlier, the issue that came before the Kwara State Sharia Court of Appeal was an appeal filed by the Appellants after the dismissal of their preliminary objection challenging the jurisdiction of the Upper Area Court 1 to entertain the suit of the Respondents that the deceased (Major Muhammed Adeniyi) having died as a Muslim, his properties should be shared under the Islamic Law. The main contention before the Upper Area Court was that it has no jurisdiction to hear the suit, the deceased having married earlier to the 2nd Appellant (Evangelist (Mrs.) Olabisi Muhammed) under the Marriage Act and which marriage was not legally dissolved before he married other women. It should be noted that a similar suit was already pending before the High Court of Kwara State. In deciding the appeal before it, the SCA had this to say:
“… The foregoing represent a capsule review of the respective submission of the parties on this vex issue of whether the trial court has jurisdiction to entertain, the suit before it from the angle of the applicable law to the estate of the deceased Major Muhammed Adeniyi .It is noteworthy however, that the parties’ arguments extensively touched on some core aspects of the merit of the suit before the court below. The court below was also cut in the same web of dwelling on the merit of the substantive case, instead of limiting itself to the preliminary objection. On our part, we shall however try to limit ourselves strictly to issue of the jurisdiction and refrain from delving into the merit while resolving it. The jurisdiction being question here is strictly on which law is applicable…”
From some opinions that disagreed with the decision (Ruling) under review, due regard was pay to the above portion of the decision and therefore they equally felt into the error of dwelling into the merit of the case which was not the actual issue before the SCA. The Court stated it clearly and specifically that the deceased being a Muslim, Islamic law would have been applicable as shown by some of his last acts on the earth but because of his earlier involvement in a marriage under the Act which he did not legally dissolved during his life time, he had by that singular act deprived himself of his estate being subjected to the Islamic Law. The Court even rightly observed at a stage that: “Unarguable , the issue calling for resolution under this head involves conflict of laws so to speak.” The sentiment being expressed by those that disagreed with the decision was as if the court had decided the merit of the case which was not the issue before the Court but the issue of jurisdiction considering the facts of the case.
Some have cited provisions of the Constitution as relate to the jurisdiction of the Sharia Court of Appeal without considering the facts that the provisions of the Constitution cannot be applied or interpreted in isolation from the facts of the case on the ground. From experience in the Matrimonial (Divorce) cases, it has been observed that some couples, particularly the husbands allowed themselves to be beclouded by the spirit of “Love in Tokyo” that they did not think seriously on the consequence when embarking on the voyage of marrying under the Act. Some men would lie and claim ignorance of what the Marriage under the Act was all about as if they were not told during the marriage.
I had expected coming across several case authorities and opinions of prominent scholars from the leading Islamic Schools of Thoughts to buttress their points against or to contradict the decision under review; I am yet to come across any authority from their opinions capable of dislodging the soundness of the decision. Are the Scholars on the other side suggesting or declaring that a matured Muslim man who deliberately and voluntarily contracted marriage under the Marriage Act can still turn round to marry more women under the Islamic Marriage System while the one under the Act still subsisting? Will it be tenable for such a man to argue that since his Fundamental Rights to Freedom to Private Life and Family as well as that of Association are guaranteed under the Constitution of the Federal Republic of Nigeria he can marry more wives without first legally dissolving the earlier one under the Marriage Act ? If this is so , the same man would have argued earlier while being dissuaded on the implication of the Marriage under the Act that his similar Rights guaranteed was being denied him against his will.
As interesting and pathetic this case is, one is honestly and seriously disturbed looking at the entire facts of the case. In the circumstance of the case, will it be proper and lawful to disentitle other family members or beneficiaries of the deceased from sharing in his estate? I strongly believe that this is the area where the energy and legal firework should be directed to rather than engaging in unnecessary sentiment and condemning those that are performing their judicial duty and ignoring the careless act of the deceased that brought about this ugly incident. While it will not be proper speaking ill of the dead which is not what we intend to do here but to make other men to see reason and learn lessons. While conceding to the fact that a submissive Muslim cannot die intestate since the Holy Quran has stipulated how his estate is to be shared. Where a submissive Muslim intends to write a Will, he cannot will out more than One Third (1/3) of his estate and his Quranic heirs will not be subject or featured in that Will.
On the deceased in the present case that earlier married under the Marriage Act and by so doing submitted to the English Common Law principles, if he had written a Will under the English Law wherein he shared his estate among all his beneficiaries, I do not think that his earlier Marriage under the Act can disentitle those his beneficiaries from taking what he has given to all the beneficiaries. But the situation on the ground now is that the deceased died without writing a Will under the English Common Law under which he contracted a marriage under the Act with the first wife who is now claiming with her child or children to be entitled to all the estate of the deceased to the exclusion of other children of the deceased. This is where the court that will hear the merit of the case will be expected to do substantial justice as Section 42 (1) (2) of the Constitution must come in . Will those other children or other members of the family of deceased be entitled or disentitled to share from his estate? As I have said earlier this where serious legal firework will be required from those that will be involved in the legal battle before the court. This is a case where the potency of the Matrimonial Causes Act, Child’s Right Act, Administration of Estate Law and the Constitution of the Federal Republic of Nigeria will be tested. That is why I said earlier that this is going to be a very interesting case for the development of our law and jurisprudence. Since the case is still pending before the court that will hear it on merit, I will not want to go beyond this boundary. I absolutely agree with the Kwara State Sharia Court of Appeal that since there was an earlier suit already filed before the High Court of the State, it will amount to an abuse of court process going before the Upper Area Court 1, to institute another suit with similar parties and issues for the determination of the Court.
NOTE: Anyone is at liberty to disagree with my above submissions as I will surely appreciate a balanced, fair and objective rebuttal.
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