Ai Ahmadu Rungumawa V. Hantsi Muh’d Rungumawa (2001)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The appellant in this court Mrs. Ai Ahmadu Rungumawa filed a petition against her husband Muhammad Na Hantsi seeking for the dissolution of their six years old marriage on the grounds that her husband (the respondent before us) does not pray and he does not feed or clothe her and again he caused her to be arrested and detained on the alleged fornication with one of her brothers who came to pay salah homage to her mother. She spent a night in the police custody but later she was released on the order of the court.
The respondent therein denied the petition of the appellant and stated his own case denying specifically the allegation of failing to perform the prayer (salat). He confirmed that he reported the matter of adultery to the police and she was arrested but later released. He urged the court to order the appellant to return to his house. But If she insisted on the dissolution of their marriage he demanded for thirty thousand naira (N30,000)as the amount he spent on her.
The husband to the appellant’s mother came to court and testified that for the past seven months he was responsible for feeding and clothing both the mother of the appellant and herself. He told the court that he knows that the appellant is married to the respondent.
During the application of I,zar, the appellant said that he does not clothe her and the only one wrapper she was wearing was snatched and seized from her by the respondent, it was the court that intervened and ordered the respondent to return it to her.
The court then turned to the respondent and asked him if he has a witness or witnesses who can testify to the fact that the appellant’s mother invited one Iliya and Sada and put one of them in a room with his wife, Ai, and the mother of the appellant stood by the gate so that no one will get in. The respondent told the court that he has three witnesses to call they are:-
Altahiru, Baran and Usman Abdu. Three officers of the court openly in court testified to the fact that the respondent in an answer to the question put to him by the court said:
“he has witnesses to testify that his wife has committed adultery with one Iliya in the room of his wife’s mother, and that they are both FASIKUN Transgressors).?”
The respondent could not call any witness to confirm what he said about adultery, he only begged the court to cause his wife to go back to their matrimonial home.
The trial court rejected the evidence of the husband of the appellant’s mother because of their close relationship. He relied on the provisions of an Islamic book on Sharia called RISAIA.
The lower Sharia Court Judge entered judgment in favour of the petitioner Madam Ai and the marriage was dissolved after rebuking and reprimanding the respondent for making this wild allegation against his mother-in-law which allegation he cannot substantiate. The court then declared three months ldda period from 27th June, 2000.
Dissatisfied with the decision of the lower Sharia Court, the respondent herein appealed to the Upper Sharia Court Gwadabawa.
In the Upper Sharia Court, the decision of the trial court was set aside and the appeal allowed on the grounds that the trial court decided the issue before the evidence was concluded. It is clear also that that court did not properly evaluate the principles of Islamic law on the issues of feeding, clothing, accommodation, defamation and question of allegation of adultery or fornication. The Upper Sharia Court also rebuffed the trial court for not looking carefully at the Sharia authorities which are within the knowledge of any Judge of the Area Courts. The decisions of that lower Sharia Court are contrary to the dictate of Sharia. The Upper Sharia Court then ordered a trial denovo before the Judge of the lower Sharia Court.
The appellant was aggrieved by the decision of the Upper Sharia Court and lodged an appeal before the Sharia Court of Appeal Sokoto State. After considering the records of proceedings of both Upper and Lower Sharia Courts and after applying I,ZAR the court dismissed the appeal and affirmed the decision of the Upper Sharia Court.
The appellant, Madam Ai Ahmadu Rungumawa being dissatisfied with the decision of the Sharia Court of Appeal, Sokoto State appealed to this court and filed a Notice of Appeal containing a single ground as follows together with its particulars, as follows:
GROUND ONE
(a) The lower court (Sharia Court of Appeal, Sokoto State) erred in law when it dismissed the case without fair hearing.
PARTICULARS
(a) The Sharia Court of Appeal did not investigate the matter.
(b) No evidence was heard, the lower court rested on the decision of the Upper Area Court Gwadabawa.
(2) There was defamation (adultery) of character on the appellant by the respondent (Lian) which has automatically dissolved the marriage between them Islamically.
(b) Further grounds will be filed in a receipt of copies of proceeding of the lower Court.
I have considered the records of proceedings, the grounds of appeal and the authorities cited therein. It is to be noted that right from the lower Sharia Court of Appeal these four issues kept on surfacing. They are:-
(a) Lack of feeding of the appellant by the respondent;
(b) Failure to provide clothes to his wife through out the period of the marriage;
(c) Failure of the respondent to properly accommodate the petitioner; and
(d) The respondent, being a husband, defaming his wife (Qazaf) and accusing his mother-in-law of encouraging his wife to commit (Zina) adultery or even fornication.
In Islamic law of marriage, it is incumbent upon the husband to provide for his wife the following basic necessities; namely:
(i) To feed her;
(ii) To clothe her; and
(iii) To provide accommodation for her.
These necessities are compulsory on a husband to cater for his wife even if the wife is a millionaire but shall be within his means and capacity.
I refer to Suratul Baqarah verse 233. It was again emphasized by the Almighty in SURATUL DALAQ, verse six where Allah the most High ordered thus”
” Keep them (your wives) where you stay (as married (quarters) in accordance with your means.
See also verse 7 of the Surat Dalaq supra. The Prophet of Islam, Muhammad peace be upon him stated compulsory nature of feeding, clothing and accommodation during his farewell summons on Arafat. He warned muslims to be careful and sympathetic over their lawful wives and he singled out the feeding, clothing and accommodation.Detailed discussions on this matter could be found in FIQHUS SUNNA
BY SAYYID SABIQ VOL. 2 Pages 169 at 170 up to Page 184; The learned jurists profound deeply the issue of feeding a wife and other related matters according to various schools (Mazahib). In the famous authority called KITABUL FIQH ALAL MAZAHIBIL ARBAA’ BY ABDUR-RAHMAN AL-JAZIREE., VOL. 4 Pg. 553 at 563″.
That being the case, if a petitioner came to court and complained that her husband does not feed, clothe or accommodate her and she is able to call witness in proof, the court should grant the respondent about two months to comply and improve things. If after this period he failed to comply then the court shall dissolve the marriage. This is the import of what is contained in TUHFATUL-HUKKAM where he says:-
” If a husband was brought to court for failure to maintain his wife, the court should grant him two months grace. If afterwards he could not the court must dissolve the marriage, so also who cannot clothe his wife”.
There is no doubt that the respondent has no answer to allegations of the petitioner, the appellant herein, the trial lower Sharia Court Ilela should have ruled the petitioner has proved that the appellant was incapable of maintaining the petitioner and should have declared that marriage dissolved.
Another serious and fundamental issue was the issue of Zina Fornication. All the three courts have taken them lightly. The allegation of adultery levelled against the petitioner by husband must be proved by the testimonies of four unimpeccable muslims who must have seen the petitioner and the said paramour in the act. If one of the four gave a different version contrary to what is required by Islamic law then the accused will be acquitted and the other three will be punished severely for giving false evidence against the petitioner. The standard in proving adultery in Islamic criminal law is very high and rigid, it is hardly proved.
The fact that there was mentioning in passing that the appellant somehow agreed with the allegation of adultery is not enough. If there was a session of “Lia’n” then it must be proved by special oaths five times each has taken place in court or in a conspicuous place where a huge gathering of people will witness it. The issue of LIAN – where a husband will swear that he saw his wife making love with another man directly. This man must swear all in all five times that he saw her with his naked eyes having sexual intercourse with a man. Had he declined to take that multiple oath the punishment of Qazj, defamation, must be meted out on him. That is eighty lashes. The wife also must be made to take the multiple oath that her husband lied against her. See chapter 24 verse 6.
As I stated earlier on that on the allegation of fornication it cannot be proved with less than four male witnesses who saw them in the act (intimate or pants down), Failure to have such four witnesses testifying to the act would make those who made the allegation and the witnesses liable on conviction to 80 lashes of the cane to be administered in front of large gathering of people, God Almighty stated in Suratun -Noor,e chapter 24 verse 4 that:-
“Those who make allegation of adultery against their wives must produce four witnesses failing which they should be given 80 strokes of the cane, they are also disqualified from giving evidence any where forever, and they are real transgressors”.
All these facts were never thrashed out and determined by any of the lower or Upper Sharia Court. This is unfortunate especially when that State declared sharia to govern the life of moslems therein. This type of sensitive issues must be carefully and thoroughly applied. There is no point in rushing things up. It can be noted that in Islamic law where the punishment is severe, you always find procedure to establish same is rigid and cumbersome such that it may turn round to be formidable or even impossible to prove.
The Upper Sharia Court of Appeal cited in support of their stand the famous Books of Khirshee and Tahsiratul Hukkam and used the provisions therein wrongly. They then quashed the decision of the lower trial Sharia Court.
In the Sharia Court of Appeal Sokoto State, herein after called the court below,they made similar mistakes. The mere fact that somebody met them in a room does not prove adultery. The Sharia Court of Appeal, with tremendous respect cannot be right in dismissing the appeal without relying on cogent and hard evidence before the lower court.
Even though the parties have not engaged the services of any counsel this court is duty bound to go into the real issue and help the parties within the law.
My Lords, I have analyzed the relevant provisions contained in the Holy Quran, Khirshee the commentary on Tuhfatul Haukkam, the Tuhfatul Haukkam and Fiqh Sunah and other Islamic Books and I discovered that the petitioner, now appellant, has clearly established her case before the lower sharia court to warrant dissolution of the marriage.
The fact that the respondent failed to maintain his wife is never in doubt. It was proved by evidence. He too by his attitude admitted that he has not been maintaining his wife all that period. Even the lower Sharia Court failed to seriously rebuke the respondent for making dirty and wild allegation against his mother in law. This is unheard of. This is a very bad attitude anywhere in marriage life especially when it cannot be substantiated and proved. It would amount to punishing the wife to be abusing her parents and unnecessarily blackmailing them, that alone could ground a divorce What Almighty said and directed by the prophet of Islam in many of his authentic traditions are that there should be mutual respect among the husband and wife during their marriage life.
I have therefore held that the decision of the court below cannot stand. The appeal is meritorious, same is allowed. The decision of the court below is set aside. The decision of the lower trial court is restored. For the avoidance of any possible doubt, the marriage between the petitioner and respondent has since become an empty shell even before the appellant approached the court, same is dissolved. The appellant from today is free from the shackle of that marriage. Marriage is dissolved with no order as to costs.
Other Citations: (2001)LCN/1037(CA)
