A COMPARATIVE STUDY OF WIFES RIGHT TO MAINTENANCE IN ISLAMIC AND STATUTORY LAWS IN NIGERIA
Majority of men in the society are ignorant of the wife’s right of maintenance in Islamic and statutory laws. HoweverIslam has provided the wife with the right to maintenance as enshrined in the holy Quran and statutory law respectively. But certain factors are militating against the enjoyment of such rights. Husbands do not maintain their wives according to what the holy Quran and statutes stipulate. It was therefore, investigated whether the Muslim and Christian wives are aware of such right as enshrined in the Holy Quran and statutes respectively. Do the husbands allow their wives to freely enjoy these right if they are aware of them? This has been a serious problem for the welfare of the wives in the society and in fact it is infringement of their established right under the shariah and statutory laws. Lack of proper maintenance of a wife may lead to regular disputes between husband and wife and subsequently may lead to a broken home.This research was embarked upon to clarify a lot of misunderstanding among spouses as to the wife’s right to maintenance and will serve as a guide to student who will like to research into similar problems in the near future. It will also serve as an educational material to married women who are ignorant of their conjugal rights. The researcher deemed it necessary to set up parameters for the work for clarity and easy approach. For the purpose of this research, statutory laws applicable in Nigeria are going to be given primary attention.However,where necessary, reference are going to be made to statutory laws applicable in England and under Islamic law, the four Sunni schools will be our guide.It was found that even though it is the husbands responsibility to provide maintenance to his family ,the prevailing economic hardship as indicated by the wife’s in the research area has made them work hard in order to support the family.secoundly,There is cultural infiltration into the Islamic teachings on marriage and this has been allowed to supersede the religion teaching on marriage . It is therefore recommended that more publications on women’s rights should be made available and the husbands must disregard cultural practices and follow the teachings of the holy Quran and sunnah of the Prophet PBUH
Title Page – – – – – – – –
Dedication – – – – – – – –
Certification – – – – – – – – –
Dedication – – – – – – – – –
Acknowledgment – – – – – – – –
Abstract – – – – – – – – –
Table of Cases – – – – – – – – –
List of Statutes and Laws – – – – – –
Glossary – – – – – – – – –
Abbreviation – – – – – – – –
Contents – – – – – – – – –
1.0 CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background to the Study – – – – –
1.2 Statement of the Problem – – – – – –
1.3 Aims and Objectives – – – – – – –
1.4 Justification – – – – – – – –
1.5 Research Methodology – – – – –
1.6 Literature Review – – – – – – –
1.7 Scope of the Research – – – – – – –
1.8 Organisational Layout – – – – – – –
2.0 CHAPTER TWO: MARRIAGE UNDER ISLAMIC AND STATUTORY LAWS
2.1 Introduction – – – – – – – –
2.2 The Purpose of Marriage under Islamic Law – –
2.3 Requirement of a Valid Islamic Law Marriage – –
2.3.1 Proposal – – – – – – – –
2.3.2 Offer (Ijab) and Acceptance (Qabul) – – – – –
2.3.3 Marriage Guardian (Waliyatun Nikkah) – – – –
2.3.4 Dowry (Sadaq) – – – – –
2.3.5 Witnesses – – – – – – – –
2.4 The Purpose of Marriage under Statutory Law – – –
2.5 Requirement of a Valid Statutory Marriage – – – –
2.5.1 Marriageable Age – – – – – – –
2.5.2 Consent of the Parents – – – – – –
2.5.3 Prohibited Degree – – – – – –
2.5.4 Prior Customary or Statutory Marriage – – – –
2.5.5 Consent of Parties – – – – – – –
3.0 CHAPTER THREE: MAINTENANCE OF WIFE UNDER ISLAMIC LAWS
3.1 Introduction – – – – – – – –
3.2 Basis of Maintenance of Wife under Islamic Law – – –
3.3 Scale of Maintenance of Wife under Islamic Law – – –
3.4 Components of Maintenance – – – – –
3.4.1 Feeding – – – – – – – –
3.4.2 Clothing – – – – – – – –
3.4.3 Lodging. – – – – – –
3.4.4 Medication or Medical Treatment – – – –
3.4.5 Domestic Services – – – – – – –
3.5 Maintenance when Due – – – – – –
3.5.1 Immediately after Contract – – – – – –
3.5.2 After Consummation – – – – – – –
18.104.22.168 Marriage Must be Valid and Subsisting – – – –
22.214.171.124 Marriage Must be Consummated – – – – –
126.96.36.199 Wife Must be Capable of Sexual Intercourse – – – –
188.8.131.52 Wife Must be Accessible for Conjugal Relations – – –
3.6 Maintenance of wife under special circumstance – – –
3.6.1 Maintenance Where the Wife is a Worker – – – –
3.6.2 Maintenance during Iddah (Waiting Period) – – –
3.6.3 Maintenance during Sickness of Wife – – – –
3.6.4 Maintenance During Absence of the Husband – –
3.6.5 Maintenance of a Wife when the Husband has no Means of Livelihood (poverty)
3.7 Withholding Maintenance – – – – – –
3.7.1 Recalcitrance (Disobedience) – – – – –
4.0 CHAPTER FOUR: MAINTENANCE OF WIFE UNDER STATUTORY LAW
4.1 Introduction – – – – – –
4.2 Basis of Maintenance of Wife under Statutory Law –
4.3 Criteria for Consideration of Award of Maintenance of Wife under Statutory Laws – –
4.3.1 Means of the Parties – – – – – –
4.3.2 Earning Capacity of the Parties – – – – –
4.3.3 Conduct of the Parties to the Marriage – – –
4.3.4 All Other Relevant Circumstances – – – – –
4.4 Enforcement of Maintenance Order – – – – –
4.4.1 Maintenance Agreement – – – – – –
4.4.2 Maintenance Pending the Disposal of Proceedings – – –
5.0 CHAPTER FIVE: COMPARATIVE ANALYSIS
5. I Introduction – – – – – – –
5.2 Obligation of the Husband to Maintain his Wife – – –
5.3 Scale of Maintenance of Wife- – – – –
5.4 Wife as an Agent of Necessity – – – –
5.5 With-holding maintenance – – – – –
5.6 Maintenance of a Divorced Wife – – – – –
6.0 CHAPTER SIX: CONCLUSION
6.1 Summary – – – – – – – –
6.2 Findings – – – – – – –
6.3 Recommendation – – – – – –
Bibliography – – – – – – – –
CHAPTER ONE 1.0 GENERAL INTRODUCTION 1.1 Background to the Study
The Study falls under English and Islamic family law, which is the basis of a tranquil mutual existence in a society. Islamic law is defined as the code of law derived from the Quran and the teachings of Prophet Muhammad SAW1.On the other hand, statutory law is the term used to define written laws, usually enacted by a legislative body2.Statutory laws vary from regulatory or administrative law that are passed by executive agencies, and common law, or the law created by prior court decisions.3 Maintenance is the core and kernel of a marriage because no marriage can survive well without maintenance. Therefore, it is the husband‟s legal obligation to maintain his wife during the subsistence of the marriage. This obligation of the husband towards his wife entails her incontestable right to lodging, clothing, feeding and general care. This is so under both Islamic and Statutory laws. Although there are some instances where the two laws differ.
Under Islamic law, the Arabic word for maintenance is “Nafaqah” which is defined as means of support or sustenance. Legally, it connotes all those things which are necessary to support life, such as food, clothes, healthcare, lodging and general care.4 The responsibility for the maintenance of wife is a duty which the husband is enjoined to discharge cheerfully without reproach or injury.5
1http://www.thefreedictionary.com/islamiclaw accessed on 18/10/2015
2http://www.hg.org/statutory-lawlegalresources accessed on 18/1/2015 3 ibid 4Hammuda. A.A. (1982) The Family Structure in Islam, Islamic Publication Bureau Lagos, Nigeria, pp.148-149 5 Ibid
The Holy Prophet (S.A.W.) is reported to have said during his farewell sermon that “…then fear Allah regarding women, for you have taken them by the word of Allah and met their private parts lawfully by the word of Allah…And they have upon you, the right
Of feeding and clothing in an equitable manner…”6It is also reported on the authority of Mu‟awiyyah al-Qushairi (R.A.) who said “Oh the Apostle of Allah, what is the right of the wife, a man has upon him” to which the Prophet replied “to feed her when you feed yourself, clothe her when you clothe yourself and you should not beat her face, do not repulse her and do not desert her except inside the house”.
In the same vain, The Holy Qur‟an 65:7declares thus: “Let him who has abundance spend out of his abundance and whoever has his means of substance straitened to him, let him spend out of that which Allah has given him”.7
The concept of maintenance under statutory law is different from the common law rule. Common law is based on precedent or case law, common law allow judges to decide cases based on rulings of prior cases with similar circumstances. Statutory law is written law as decided by the legislature or other government agency, the legislation will mainly be based on rules and regulations either mandating or prohibiting certain behaviours of the general public8.Under the common law, maintenance of a wife can be seen as a one way traffic that is the husband is under the obligation to maintain his wife.However, under the statutory laws; it is a two way traffic.A spouse is required to maintain the other spouse depending on the circumstances of the case. Under the English Common Law, the incidence of marriage imposes on the spouses a number of obligations one of which is the wife‟s right and husbands duty for maintenance. This obligation
6 As quoted by Doi.A.I.R( 1984) Sharia: The Islamic Law ,London, Ta Ha Publications p. 207. 7Zayyid.M.Y (1980) An English translation of the meaning of the Holy Quran, Dar-Al Choura, Beirut, Lebanon. p.421
8http://m.wisegeek.com/what-is-the-difference-between-common-law-and-statutory-law.htmacessed on 18/10/2015
on the husband arose from the fact of cohabitation and the wife‟s management of the household. A husband and wife may enter into an agreement to live apart, such a separation release each spouse from obligation. In such a situation, if he fails to provide her maintenance and she has no adequate means of support, she becomes at common law his agent for the purpose of obtaining necessaries.The wife‟s agency of necessity is intended to enable her procure such necessaries for herself and her children as the case may be. Necessaries here include food, clothing, medical expenses and other basic needs but do not include luxuries. Similarly, a wife who has sufficient means of her own to purchase necessaries is not entitled to pledge her husband‟s credit as there is in fact no necessity. This is the case where for instance she earns sufficient income to sustain herself adequately. Where she is already adequately supplied with a particular necessity, the husband cannot be liable for any further supply of the same item. The husband will also avoid liability if he provides his wife with adequate maintenance.
Furthermore, under the Matrimonial Causes Act High court is vested with powers on appropriate application to make an order for the maintenance of a spouse or the children of the marriage. In the exercise of this function, the court has a free hand to make such order as it thinks fit, consequently, the discretion of the court in this respect is unfettered. But the decree directs that the courts should have regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
1.2 Statement of the Problem
Right to maintenance of a wife is very fundamental in both Islamic and statutory laws applicable in Nigeria. Several researches have been conducted and many books published on this topic in the two legal systems.
However, every now and then, you find cases of dispute between spouses arising from violation of such right to maintenance which in many instances leads to divorce. The question is do the husbands allow their wife‟s to freely enjoy these rights if they are aware of them? And to what extent Islamic and Statutory laws provide for wife‟s right to maintenance? If there are clear provisions then why is it that cases are repeatedly seen between spouses due to lack of maintenance? These and many other problems are going to be examined in this research.
1.3 Aims and Objectives
The main aim of this research is to find out whether the wife‟s right to maintenance is exercised as stated in the Quran and the statutes respectively with the view to achieve the following objectives:
i. To examine the provisions on the wife‟s right to maintenance under Islamic and statutory laws.
ii. To find out the differences and similarities of wife‟s right to maintenance under Islamic and statutory laws.
iii. To proffer solution whether there is non- compliance to such laws.
This research was embarked upon to clarify a lot of misunderstanding among spouses as to the wife‟s right to maintenance and also to provide additional material for students and other interested persons in the study of comparative law of wife‟s right to maintenance .
1.5 Research Methodology
The methodology adopted in this research is doctrinal as well as empirical. The Qur‟an and Sunnah, being the primary sources are relied upon, even though references to some
secondary sources is made occasionally i.e. deductions from books, journals, and articles. And questionnaires were also administered and data analysed. 1.6 Literature Review Some good literatures on the subject are available. Though they deal with only one aspect or the other of this topic and not particularly centred on this topic. So research has to be undertaken with recourse to various sources to bring about this work.
Hammuda Abdal Ati in his book titled: The family structure in Islam9made some contribution on this topic. Hetalked about maintenance and its component, where he made reference to residence only. He also brought the issue of other component of maintenance where he talked on the issue of maintenance of a sick wife, maintenance in recalcitrance and maintenance on poverty. The writer however did notemphasis on other issues such as, maintenance of a working wife, maintenance during absence of the husband.
In Sheikh M. T. El-Imairi‟s Personal status in Islamic law,10 He discussed the issue of maintenance at length even though he left out some important aspect. He discussed the scale of maintenance of a wife, conditions of entitlement to maintenance but did not go into details in his discussion. He also discussed maintenance when due and when accumulated. However, the writer left out issues like maintenance of wife under special circumstances such as, maintenance of a wife in the absence of a husband, maintenance of wife during poverty of husband, and maintenance of a sick wife. Under this subtitle, the writer only discussed maintenance of a working wife and a disobedient wife.
9Hammuda.A.A.(1982) Op.cit pp. 149-160 10El-Imairi. M.T (1978) Personal Status in Islamic Law, Center for Islamic Legal Studies, A.B.U Zaria.pg 100-121
Muhammad Aminu Gurin in his book titled An introduction to Islamic family law11 also contributed in this area of study. He also discussed the conditions of entitlement to maintenance, the incidence of maintenance, accumulation of maintenance. However, the writer also left out some issues regarding maintenance of a wife under special circumstances
Another good literature is the LL.M thesis of Muhammad Arsalan Muhammad titled: The Rights and Obligation of Spouses under Islamic Law.12 Thewriter discussed maintenance of a wife under Islamic law at length. He discussed maintenance, condition that must be fulfilled before a wife is entitled to Nafaqah, wife‟s right to medication, wife‟s right to burial expenses and also her right to education.
Abdullahi,M.J in his book titled; Al- kawaakib ad-Darriyyah Fi Fiqh al Malikiyyah13,also contributed to this literature. He classified wife‟s into two categories those whose marriage is consummated and those whose marriage is not consummated. The financial status of the spouses, and the circumstances in which the wife loses her right to maintenance. the writer did not discuss maintenance of a wife during the iddah period, maintenance where the wife is sick, and during absence of the husband. This literature will cover all these areas that the writer fails to cover.
Another writer that contributed to this literature is Abubakar Al Jaza‟iri in his book titled: A book of greed, manners, character, act of worship and other deeds14.The writer discussed those that are obliged to give maintenance and those that must give it. He discussed maintenance generally i.e. the wife from her husband either married or divorced revocably, a pregnant woman who is divorced irrevocably, and went further to discuss maintenance of parents by their adult
11Gurin. A. M, 2010 An introduction to family law, Alrauf press limited, Zaria 12Muhammad. A. M (2000),The rights and obligations of spouses under Islamic Law. LL.M thesis Faculty of law, A.B.U Zaria.p.17 13Abdullahi.M.J (2005) Al-kawaakib ad-Darriyyah Fi Fiqh al- Malikiyyah,Maktabat al-Azhariyyah Li at-Turath,vol.2 p.252 14Al-Jazai’ri .A (2001) Minhaj Al-Muslim,Darussalam global leaders in islamic books,vol.2 Ryadh
children. The writer also discussed the quality and quantity of maintenance of a wife which is based the financial status of the husband. He further discussed when maintenance is not required, a recalcitrant wife, a pregnant divorced wife when she gives birth, and an irrevocably divorced woman. The writer however did not discussed when maintenance becomes due to a wife, maintenance of a sick wife, maintenance of a working wife, maintenance of a wife when the husband is absent
Also, the LL.M thesis of I.N. Sada titled: Dissolution of Marriage in Islam15 contributed to this literature. The writer discussed maintenance of a wife during iddah period and also what will be the consequences of lack of maintenance of a wife. Other aspect of maintenance of a wife under Islamic law that the writer left out are, conditions for entitlement to maintenance, when maintenance becomes due and maintenance of a wife under certain circumstance.
Jummai Audi also made some contributions to this literature in her LL.M thesis titled: The Rights of Spouses in Marriage under the Statutes and Islamic Law in Nigeria16. She discussed maintenance of wife under statutory law and Islamic law, the extent of maintenance i.e. the financial ability of the husband, the standard of living of the wife prior to the marriage and the prevailing customs and practices of the people of the community of the spouses. Also discussed are the conditions for entitlement to maintenance such as maintenance of a recalcitrant wife, maintenance during arrest, maintenance of a working class wife, maintenance due to poverty of husband and maintenance during the waiting period. The writer did not discuss some aspect of maintenance of wife under statutory law such as the criteria for consideration of the award of maintenance of wife and the common law duty to maintain a wife.
15Sada.I.N (1983) Dissolution of Marriage in Islam, Case Study of Concept and Practices in Northern Nigeria, Faculty of Law, A.B.U, Zaria, LL.M Thesis Unpublished 16Audi. J. A. M (2003) The Rights of Spouses in Marriage under the Statute and Islamic laws in Nigeria: An Appraisal. Faculty of Law A.B.U Zaria, Ph.D, Thesis Unpublished
In Nigerian Family Law by E. I. Nwogugu17, the writer also contributed in this subject. He explained maintenance of wife at common law where he discussed a wife as an agent of necessity, he focuses on maintenance of a deserted wife and where the husband drives her out of the matrimonial home. He further discussed termination of the husbands liability, i.e. where the wife commits adultery, on desertion and on the death of the husband. Also discussed are the criteria for consideration of the award of maintenance under the Act i.e. means of the parties, earning capacity of the spouse, conduct of the parties and all the relevant circumstances. And lastly he talked on maintenance of a wife after divorce and maintenance of wife by agreement. The writer however failed to discussed in detail maintenance of a wife generally. i.e. at common law.
In Broomley‟s Family Law18, the writer did not vividly explained maintenance of wife under statutory law. The writer discussed the duty to maintain a wife at common law and the current position of maintenance of a wife which the statutes entirely govern. He also discussed the enforcement of the duty to maintain a wife at common law briefly and went further to discuss the wife as an agent of necessity. The writer however left some loopholes by not discussingthe assessment of maintenance orders which shall bediscussed in this thesis.
Another author that contributed to this literature is Margaret C. Onokah in her book titled Family Law19. The writer briefly discussed maintenance under the statute. Also discussed is the spouse‟s agreement to maintenance and settlement, maintenance pending the disposal of proceedings, maintenance of the divorced spouse as contained in section 70 (1) of the matrimonial causes Act, and lastlythe assessment of maintenance orders. Thegap left by the writer is the common law duty to maintain a wife.
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