Aishetu Mayaki & Anor V. Alhaji Nda (1992)
LawGlobal-Hub Lead Judgment Report
OKUNOLA, J.C.A.
This is an appeal against the judgment of the Kwara State Sharia Court of Appeal, Ilorin delivered on 21/11/89. The facts leading to this appeal emanated from the Bacita Area Court where the respondent herein sued the 1st appellant claiming the paternity of her twins. On appeal, the Upper Area Court Ilorin ordered a retrial before the Lafiagi Area Court. At the retrial before the Lafiagi Area Court, the Respondent herein as plaintiff called 3 witnesses while the appellant herein called one witness now the 2nd appellant. It will be recalled that before this suit, the 1st appellant had sued the respondent for divorce at the Bacita Area Court which was granted by the court on 28/2/84. A medical report was issued by Shanga Medical Centre on 30/4/84 (i.e during the period of Iddah). Following the divorce, the 1st appellant contracted a new marriage with the 2nd appellant on 3/5/84 and the 1st appellant gave birth to twins on 26/10/84. (Vide Exhibit D). Thus, from the date of divorce to the date of 1st appellant’s marriage to the 2nd appellant was 64 days or 9 weeks or 2 months four days. Similarly from the date of the 2nd marriage to the delivery of the twins was 176 days or 25 weeks and one day while from the date of divorce to the delivery of the twins had 240 days or 34 weeks 2 days between them.
It suffices to say that at the trial of the disputed paternity claim at Area Court Grade II Lafiagi, the plaintiff/respondent called 3 unimpeachable witnesses to prove his claim while the1st appellant called one impeachable witness (i.e the 2nd respondent) to prove her claim. The 2nd appellant did not call any witness. At the end of the trial, the Lafiagi area court presided over by Alhaji Mohammed Dangana awarded the twins to the Respondent. Dissatisfied with this decision, the appellant appealed to the Kwara State Sharia Court of Appeal which dismissed the appeal and affirmed the judgment of the trial Lafiagi Area Court. Again dissatisfied with the Sharia Court of Appeal judgment, the appellant has appealed to this court on four grounds including the omnibus ground. From these four grounds, the appellant has formulated the following 4 issues which agree with those of the respondent for the determination of this court viz:
(1) Was it right for the Lafiagi Area Court to reject the Medical Report of the Maternity Centre (Exhibits C and H)?
(2) Was it right for both the Area Court Lafiagi and Kwara State Sharia Court of Appeal, Ilorin to hold that the marriage of the defendant/first appellant to the plaintiff/respondent terminated only 5 months before delivery?
(3) Was the validity of the marriage of the defendant/first appellant to the plaintiff/respondent an issue and properly addressed before the Lafiagi Area Coun and the Kwara State Sharia Court of Appeal, Ilorin?
(4) In view of the facts that:
(i) from the date the defendant/first appellant saw blood in the house of the plaintiff/respondent (which remained for 16 days) to the date of divorce (28th February, 1984) to the date of delivery was 286 days (ie 16 days + 30 days + 64 days +176 days) OR 40 weeks and 6 days OR 9 months 16 days:
(ii) from the date the Maternity Centre Shonga examined the first appellant to the date of delivery was 6 months less one day;
(iii) from the date of the second marriage of the defendant/first appellant (to the second appellant) to the date of delivery was 176 days or 6 months less 3 days.
was it right for both the Area Court Lafiagi and the Kwara State Sharia Court of Appeal to say that the marriage was terminated 5 months before delivery?
The respondent added one other issue viz:
(iv) Whether the parties to a proceeding are competent witnesses in Islamic law procedure?
However, before dealing with those issues, it is necessary to observe that the respondent had filed a preliminary objection on the same day he filed the respondent’s brief touching inter alia, on the jurisdiction of this court to entertain the present appeal. Since jurisdiction deals with the basis of adjudication I shall first deal with this objection, the outcome of which will determine whether or not to consider the substantive appeal. In this regard, it is pertinent to observe that the preliminary objection raised the following issues for the determination of this court.
These are:
- Grounds 1 and 2 of the amended grounds of appeal filed are raised for the first time in this court and are therefore constitutionally defective.
- The amended grounds of appeal filed are not covered by the brief of argument filed in this matter.
- The issues formulated in the appellant’s brief of argument are at variance with the grounds of appeal filed. Hence the brief is fundamentally defective and should be struck out.
- The 3rd ground of the amended ground of appeal is a ground of fact and is not envisaged by section 223 of the 1979 Constitution.
Both parties nave filed their briefs which incorporated their reaction to this preliminary objection. Both counsel relied on these briefs and addressed us viva voca on the preliminary Objection. At the hearing of the preliminary Objection, learned counsel to the respondent Mr. T.J. Daniel withdrew grounds 1-3 of his Notice of Preliminary objection which in the absence of objection from the appellants were struck out, thereby leaving ground 4 of the objection relating to Ground 3 of the additional grounds of appeal. In another development, learned counsel to the appellant, Mr. Yahaya Mahmood withdrew ground 3 of his additional ground of appeal which was also struck out. In this way all matters in the preliminary objection were laid to rest. The court was thereafter faced with the substantive appeal.
On the substantive appeal, learned counsel to both sides adopted their briefs and addressed us viva voce to highlight some points.
Learned Counsel to the appellant, Mr. Yahaya Mahmood referred to page 8 Lines 21-25 of the judgment of the Sharia Court of Appeal where the court emphasised on the fact that the delivery of the twins was done 5 months after the marriage was terminated. Counsel submitted that that was the main reason by the Shaira Court of Appeal for giving paternity to the respondent. Counsel further submitted that from the date divorce was granted on 28/2/84 to the date of the 2nd marriage was 64 days. He also contended that from the date of the 2nd marriage to the delivery of the twins was 176 days (i.e six months less 1 day.) He pointed out that there was no where in the evidence before the Sharia Court of Appeal that from the dissolution of the 1st marriage and the delivery of the twins was 5 months. Counsel contended that the six months period of separation in Islamic law refers to Islamic lunar months which are different from the conventional months.
By way of reply Mr. T.J. Daniel, learned counsel to the respondent after his brief submitted that the burden of proving whether Iddah has been observed is on the appellant because the claim is theirs but this burden has not been discharged. According to counsel, the only attempt to do so is contained in the statement of 2nd appellant at p.8 lines 5-8 of the records, which does not amount to evidence under Islamic law. Refers to Abdullahi Mogaji Mayoluko v.lta Alamu (1990) 1 LR65 p.73, and submitted that the 1st appellant did not observe her Iddah before she contracted her 2nd marriage. He maintained that from Ch.65: 1 of the Holy Quran the Iddah period must be observed in her matrimonial home. Cited Doi, Sharia Islamic law p. 202. He submitted further that as from the time of marriage between the 1st and 2nd appellants i.e 3rd May 1984-26th October 1984) to the delivery of the twins is not up to the minimum period of gestation. Learned counsel further contended that Ogbolu’s case cited supra is not relevant to this matter as it was based on Customary law and Evidence simpliciter. He urged the court to dismiss the appeal.
By way of reply, learned counsel to the appellant Yahaya Mahmood Esq. contended that since at p.1 of the records, the respondent sued the appellant to court, the burden of proving that the 1st appellant did not observe the Iddah lay on him. He submitted that where divorce was granted on the ground that the husband was not maintaining his wife, the Holy Quran did not say that the Iddah should be observed in the husband’s house as nobody would maintain her if she stays there. He urged the court to allow the appeal.
I have considered the submissions of both sides on the issues. It would appear that the basic issue that emerges for consideration in the present appeal is the status of the 2nd marriage vis-a-vis the period of Iddah. Arising from this also is whether or not the twins were born within the period of gestation recognised by Islamic law. It is my considered view that answer to these two posers will dispose of this appeal.
In dealing with the first issue relating to the status of the second marriage in this case vis-a-vis the observance of the period of Iddah it is necessary to examine some basic principles of Islamic law of divorce on this point to fully appreciate the issue involved. It is trite in Islamic law that after either party has obtained a judicial divorce, it becomes mandatory for the wife to observe a waiting period of three months (otherwise known as the period of Iddah) before final severance of the marital tie between the parties. This was provided for by the Almighty Allah in the Holy Quran Chapter 65 verse I thus:
“Prophet, when you do divorce women, divorce them at their prescribed periods, and count(accurately) their prescribed periods: and fear God your Lord and turn them not out of their houses, nor shall they (themselves) leave except in case they are guilty of some open lewdness. Those are limits set by God; and anyone who transgresses the limits of God does verily wrong his (own) soul. Thou knowest not if perchance God will bring about thereafter some new situations”.
From the above, Iddah which literally in Arabic means number, is the term of probation incumbent upon a woman in consequence of a dissolution of marriage either by divorce or death of her husband. It is for 3 months in case of divorce and four months and ten days after the husband’s death. The wife will remain under the maintenance of the husband till the end of her waiting period. The next question
to ask is whether a woman observing her Iddah can get married to another person.
The answer to this has been provided by the Holy Quran which makes the following prohibition as regards marriage to wives observing Iddah. “But do not make a secret contract with them except in terms honourable, nor resolve on the tie 2 marriage till the term prescribed is fulfilled”
See the Holy Quran Chapter 2 Verse 235
See also Ruxton, Maliki Law Ch. V. pages 90-91.
The purport of this prohibition becomes clear when is it realised that during this period, the marriage is merely dormant but not dead as there is room for reconciliation between the parties. The concept of the Iddah as a post-divorce reconciliatory measure is clearly stated by the Almighty Allah in the Holy Quran Chapter 2 verse 288 thus:
“Their husbands are best entitled to take them back as their wives during this waiting period if they desire reconciliation”.
This is one of the main reasons why the husband is mandated to provide for her maintenance during the period as laid down in verse 24 I of the same Chapter 2 of the Holy Quran. Thus, since Islam forbids polyandry, a man is forbidden from marrying a woman who is already married or who is observing Iddah since the stamp of marriage is still on her. See M.A. Okunola, Interaction between Islamic Law and Customary Law of Succession among the Yoruba People (1984 University of Lagos Ph. D thesis hereinafter referred to as M.A. Okunola) page 208. In the instant appeal, I have gone through the records as well as the submissions of both counsel to the parties. It was noted that between dissolution of the marriage between the 1st appellant and the respondent on 28/2/84 and the solemnization of the marriage between the 1st and 2nd appellant on 3/5/84 there were 64 days. The point was not controverted by either side as it even agrees with simple arithmetical calculation. From the Islamic law principle outlined above the Iddah of the 1st respondent should be for 3 months from 28/2/84. It therefore follows that the marriage between the 1st and 2nd appellant contracted 64 days after the dissolution of the marriage between the 1st appellant and the respondent was contracted within the 1st appellant’s period of Iddah. The effect of such a marriage in Islamic law is nullity as the marriage is void having been contracted during the period of Iddah of the 1st appellant. See Holy Quran Ch. 2 verse 235; Al Hashiyat al Dasuqi Vol 2 page 218 and Ruxton, Maliki Law Ch.V pages 90-91 quoted supra.
Having dealt with the status of the marriage between 1st and 2nd appellant, it is necessary to examine the 2nd issue- whether the twins whose paternity are here being disputed were born within the period of gestation recognised by Islamic law.
The starting point for the considerationof this issue is the consideration of the Islamic period in gestation for purposes of determination of paternity or otherwise in Islamic Law. The legal presumption that a child born to a married woman is the legitimate child of her husband is based on the Arabic maxim “Al-walad-Lil-Firash” which means that “the child belongs to the marriage bed”, It will be observed that the emphasis of Islamic law is on the date of conception and not on the date of delivery hence the presumption operates only within the limits of what the law recognises as the minimum and maximum period of gestation. Thus, the minimum period of gestation according to all Sunni schools is six months. It has been suggested that this calculation is probably due to the Sunni schools understanding of the combined express Quranic Provisions of verse 15 of Suratul Ahkaf (i.e Ch and verse 14 of Suratul Lukman (i.e Ch ) fixing 30 and 24 months respectively for the minimum and maximum periods of gestation. Subtracting 24 from 30 they got 6 months, hence the idea of fixing 6 months as the minimum period of gestation by the Sunni schools of Islamic Jurisprudence, See Hashiyat Dasuqi Vol 2 p. 459. In effect the law attributes to the husband the paternity of a child born to his wife not less than six months of marriage and within not more than seven years of the termination of the marriage, provided, of course, that in the latter case the birth of the child represents the end of the wife’s Iddah period. It is necessary to observe here that the Iddah of a divorced pregnant woman ends with the birth of the child under the traditional Islamic law and not three months after the termination of the marriage as stated supra. However, it has been-noted that contemporary medical science generally regards one year as absolute limit of pregnancy (See M.A. Okunola supra p. 235).
However, N.J. Coulson late University of London Professor of Islamic law at page 26 of his “Succession in the Muslim Family”, London CUP, 1971 at page 26 opined that “in the more conservative areas of Islam, such as Nigeria and Saudi Arabia, the excessively long periods of gestation recognised by the traditional Islamic law as possible, are still very much of a reality both in popular belief and in judicial practice”.
However, in any situation where paternity of a child is in dispute and where the mother has already contracted a second marriage as in the instant case, the essential thing to establish is how long is the period from the date of the 2nd marriage and the delivery by her of the child. This statement of Islamic law was succintly restated in Haddabu, Commentary on Muhtassar Volume IV, page 148 as follows:
“If a woman gives birth to a child within a period that did not exceed the maximum period of pregnancy the child delivered will be said to belong to the first husband unless he waives the paternity through mutual impercation (Iian).”
Also in Commentary on Taudih, the same author stated that this rule is limited to women who did not remarry or who remarried and gave birth to the child before the first six months of the marriage. If this happens, her subsequent marriage becomes voidable, because the woman has married while observing her Iddah; and she will be ordered to go back to her first husband. But if the woman gave birth after six months from the date the marriage was contracted, then the child will be that of the second husband.
In the instant appeal, it was observed that the twins were born by 1st appellant within less than six months of the alleged marriage between the 1st and 2nd appellants inclusive of the period of Iddah. Although learned counsel to appellant emphasised that the birth of the twins took place within six months and less one day of the alleged marriage between the 1st and 2nd appellant, it is crystal clear that if the fact that the marriage took place within the period of Iddah (i.e 64 days after dissolution of the 1st marriage to the Respondent leaving say (i.e 90-64) 16 for days for Iddah to be completed by the 1st appellant) were to be considered, the court will be in no doubt to conclude that the twins were not born within the minimum period of gestation and I so hold.
Applying the principle of Al- Walad Iii firash the only marriage subsisting in this matter is the 1st marriage to the respondent since the 2nd marriage to the 2nd appellant contracted during the period of Iddah was void ab initio. The lawful wedlock in the instant case is that between the 1st appellant and the respondent herein. Since under the Islamic Jurisprudence, the law attributes to the husband the paternity of a child born to his wife not less than six months of marriage. I hold that the twins whose paternity is being disputed here were rightly awarded to the respondent herein by the Kwara State Sharia Court of Appeal.
In sum, the appeal is dismissed as it lacks merit. Consequently the judgment of Kwara State Sharia Court of Appeal, in suit No. KWS/SCA/CV/94/86 delivered on 21/11/89 which affirmed the decision of the Area Court, Lafiagi is hereby affirmed. The paternity of the twins in dispute is awarded to the respondent who is entitled to the costs of this appeal which I assess as N500.
Other Citations: (1992)LCN/0138(CA)
