CHAPTER ONE
GENERAL INTRODUCTION
- BACKGROUND OF THE STUDY
Marriage is defined by the Black`s law dictionary as the civil sta.tus conditions or relations of one man and woman united in law for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.
The term marriage is used in the family law in three specific senses; to indicate an institution within society as a whole to name a ceremony resulting in change in the legal status of the parties; and to refer to the joint status of husband and wife. The precise meaning to be attached to the term will appear from its context.
To this point, the institution of marriage has been discussed as if all marriage were the same. A living arrangement legally contracted by or for two people of opposite sex. However, this description has been limited insofar as it describes monogamous marriage. These are other types of marriage which include more than one husband or wife at the same time {Polyandry or Polygamy} several husbands and wives {group marriage} or ones that are not contracted on the basis of the states rules and regulations.
However, dissolution of marriage is defined by the Black’s law dictionary as the separation of man and wife effected by judgment or decree of a court and either totality dissolving the marriage relation or suspending its effect so far as it concerns the cohabitation of the parties.
Dissolution of marriage which can be simply described as termination of marriage is not an uncommon phenomenon in human societies. Marriage just like most human experiences has its beginning and end. Sometimes its end comes naturally, where death of one or both of these spouses occurs, while sometime it is deliberately sought by one or both parties to the union.
Marriage under Islamic law is considered as a social contract and not a sacrament even though it is a sacred contract. The fact that it is allowed to be terminated whenever it is impossible for the spouses to continue their marital relationship, shows that it is regarded as a contract.
But some Muslims scholars are of the view that marriage has two elements of both contract and sacrament. Among such scholars are Farah and Abdl al-Ati. Abdl al-Ati describes marriage as “a solemn covenant between Allah and human parties as well as between theses parties themselves[1];
Some other scholars like Shukri asserts that marriage is a “sacrament” in so far as in this world; it is an act of worship for it preserved mankind from pollution; it is an institution ordained for the protection of society in order that human beings may guard themselves from unchastity[2].
After considering the different views of scholars regarding marriage in Islam, it’s clear that the moderate view is that marriage has two elements of contract and sacrament.
Even though marriage under Islamic law is not meant to be a temporary affair. The reality of life shows that some marriages been instituted cannot survive, due to incompatibility of spouses hatred they develop for each other, distrust etc. making it impossible for the marriage to achieve its objectives. Thus terminating such failed marriages is allowed so as to protect the welfare of the community and social morality.
Allah {SWT} provides general guidelines for the process of divorce with emphasis throughout on both parties upholding values of justice and kindness in formalizing the end to their marriage in suratul Baqarah[3]. The Islamic law has allowed the termination of any marriage which has not achieved and cannot achieve its objective. Therefore, it provides detailed explanation regarding the circumstances and rules of terminating such manage and anything that is attributed to that.
- STATEMENT OF RESEARCH PROBLEM
Marriage is an institution recognized under all the three systems of law applicable in Nigeria the institution of marriage is regarded as the foundation of the family. Both Islamic law as well as statute makes provisions for validity of marriage. Under both systems, marriage is supposed to be a union for life between a man and woman although Islamic law allows polygamy and man may take as much as four wives at a time. But where for one reason or the other the parties to a marriage contract can no longer cohabit as husband and wife both systems also make provisions for how such marriage may be dissolved. The question are what are the grounds for dissolution of marriage under the statutes? Does the Islamic law agree with the positions of the statute as regard marriage dissolution? If not, where lays the conflict? These are some of the questions the research work will answer while attempting a comparative analysis of the two systems as regard grounds for dissolution of marriage.
- AIMS AND OBJECTIVES
The research intends to juxtapose the Islamic law jurisprudence with statutory law on the issues of dissolution of marriage with particular focus on grounds for dissolution with the objective of ascertaining these grounds and making comparative analysis bringing out the areas of both conflict and convergence.
- SCOPE AND LIMITATION
The scope of this long essay is on the grounds of dissolution of marriage under statutory law and Islamic law. The focus of this research shall be limited mainly on the subject matter as it applies in Nigeria based on the provisions of the matrimonial causes act {MCA} 1970 and the Sharia. But for the purpose of point buttressing and analysis, the work may consider the issues as it applies in some other common law and Islamic law jurisdictions.
- RESEARCH METHODOLOGY
The work will be doctrinal in approach. The work will obtain information from provision of the statutes, the Quran as well as the Hadith as primary sources of information. The works of authors, commentaries and other writers in books, journalists, and other publication will serve as secondary sources of information of the work.
- LITERATURE REVIEW
Dissolution of marriage is a universal issue, therefore a lot authors have written on the topic, among authors who had written on marriage and incidental matter in Nigeria is Nwogugu E I[4]. He defined marriage as the union of a man and woman for life to the exclusion of others. In his work the learned author stated and discussed the requirement for a valid marriage under the statutes. He stated that marriage under statutes are expected to last for the life time of the contracting parties and that statutory marriages are only dissolvable where it is shown that the marriage has broken down irretrievably. The work of this author has neglected to separate customary law from Islamic law. If pertinent to note that Islamic law and customary law are two separate concepts and their provision come from different dimension. Customary law has to do with accepted usage, it is unwritten and its rules changes with time while Islamic provisions are contained in the Qur’an and Sunnah of our noble prophet [PBUH] and other sources.
Onakah MC[5] making reference to the matrimonial causes act also asserted that statutory marriages can only be dissolved on the establishment by the party seeking such dissolution that the marriage has broken down irretrievably. She listed and discussed what constitutes irretrievable breakdown as provided by section 15 of the MCA. However, this author did not consider the subject of marriage dissolution as provided under Islamic law and this a shortcoming in the learned authors work which the present work hope to cure.
On his part Osondu AC[6] asserted that the matrimonial causes act recognizes only one ground on which a statutory marriage may be dissolved and that is on the ground of irretrievable breakdown. He pointed out that before a petition for dissolution of marriage can be brought before the court the marriage must be at least two year old, or when it is less than two years the of the court must be sought and obtained. He then proceeded by listing and explaining what constitutes an irretrievable breakdown of marriage dissolution under the MCA. He also did not include Islamic law of marriage dissolution in his work. The present research work planned to improve on the author’s work in that regard.
Bhartiya V.P[7] commenced by saying that among the pre-Islamic Arabs the power of divorce possessed by the husband was unlimited and that they could divorce their wives at any time, for any reason or without any reason. They could also revoke their divorce and divorce again as many time as they preferred. The author wrote that after the advent of Islam, the prophet looked on the customs of divorce with extreme disapproval and regarded their practices as calculated to undermine the foundation of the society. The prophet thus made some reforms by restraining the unlimited power of the divorce by the husband and gave to the woman the right to obtaining separation on reasonable ground. The learned author proceeded by discussing modes of marriage dissolution by the husband and wife under Islamic law. He did not however, consider the aspect under statutory law.
In her article Rahman F[8] wrote that, it is sometimes suggested that the greatest defect of Islamic system is the absolute power given to the husband to divorce his wife without cause and Dower to some extend restricts the of this power. According to her experience shows that greater suffering is engendered by the husband with holding divorce than by the irresponsible excise of his right. She discussed the mutual consent made the dissolution of marriage where she said that if the mutual relationship between the husband and wife is not good, the wife if she so desired may seek a khula divorce e.g. by relinquishing her claim to the dower. She wrote further that, it however; depends entirely upon the husband to accept the consideration of the dower and to grant the divorce. Obviously because of the scope of her paper, the writer did not discuss the rights of the husband to divorce in Islamic law a vacuum which will be filled in the research work.
- JUSTIFICATION OF RESEARCH
The end product of the research will provide broader information on dissolution of marriage because the work will address the subject matter on both Islamic and statutory law. Therefore it will be of immense benefit to practitioners in the area of family law as it will reveal the current positions of the statutory law and Islamic law relating to marriage dissolution. The academic will also find this work useful as a recent effort in the in the area upon which further research could be based.
- ORGANIZATIONAL LAYOUT
The research work will be divided into five chapters, the first chapter will give general introduction of the subject matter and attempt a review of existing. Literature chapter two will focus on dissolution of marriage under the statutory law. The third chapter will examine the position of Islamic law as regard the subject matter. In chapter four a comparative analysis will be done so as to highlight similarities and dissimilarities in the two system positions. The final chapter that is chapter five will summaries the work discuss finding and make recommendations where needed.
[1] Abdalati, Hammudah, (1977), the family structure in Islam, other printing press, Malaysia.
[2] Aliyu I.A (1996) Termination of Marriage and its Legal consequences under Islamic law, Department of Islamic law, faculty of law. Ahmadu Bello University, Zaria. P 2.
[3]Quran 2: 224-234.
[4] Nwogugu, E.1 (1999), Family law in Nigeria, Heinemam Educational Books Nigeria, revised edition pp. 117-180.
[5] Onokah, M.C (2003) Family law, spectrum Books ltd Ibadan pp. 187-231.
[6] Osondu, A.C (2012) Modern Nigerian family law and practice, printable publish company Lagos pp 165-185.
[7] Bhartiya v P (1990) Muslim law, Eastern Book Company Lucknow. pp. 103-131.
[8] The Muslim wife right of dissolving her marriage in Bombay University law journal Vol. 1999 available online @www.indianlaw.org.
