celebration of marriage under islamic law

For an Islamic marriage to be valid, the three principles of marriage that must be adhered to are:

a. There must be a marriage guardian known as the Waliy who represents the bride in the marriage negotiations. The Waliy cannot be a non-muslim.

b. There must be legality of marriage between the couple. The woman must be not permanently prohibited to the man under Nasab which is consanguinity, Rada which is fosterage and Musaharah which is affinity. Any marriage between couples under the prohibited degrees of consanguinity, affinity or fosterage is void. Jinadu Adigun v. Awawu Ajoke KWS/SCA/CV/IL/30/94.

c. There must be formal statements of offer and acceptance. This is known as Seegah. The Waliy comes into play here. He makes the offer giving the hand of the bride in marriage and the suitor makes a formal declaration of acceptance. The seegah must be done verbally for its validity.

The other instances where marriage is prohibited between couples are as follows:

a. Marriage to idolaters.

b. A man must not marry more than four fives at a time. Abdulkadir Audu v. Amina Abdulkabir KWS/SCA/CV/30/94.

c. The marriage of a muslim woman to a non-muslim is strongly opposed under Islamic law.

d. A muslim is prohibited from marrying a pagan but not a Christian woman.

e. A man must not marry a woman who is already married. The impediment is removed if the marriage is dissolved either by death of her former husband, or by divorce followed by the completion of the period of Iddah.

f. A man must not marry a woman during her iddah which is waiting period during which women who are separated from their husbands as a result of death or divorce observe.

g. A man must not have two sisters as wives at the same time nor can he marry a girl and her aunt at the same time.

The right bestowed on the father of a bride to conclude marriage on behalf of his children is known as ijbar. This right is exercisable only by the father of the woman when he plays the role of waliy on his daughters provided the ward falls into any of the following categories:

a. A woman who has never been married. It does not matter whether she is a minor or an adult of whatsoever age. It makes no difference whether she is still a virgin or has lost her chastity.

b. The father in his capacity as a guardian can exercise ijbar on his daughter who has ceased to be a virgin as a result of a valid marriage but there is separation as a result of death or divorce before she attains the age of puberty.

c. A virgin whose marriage is contracted but dissolved but she remains a minor while she has not spent up to one year in the matrimonial home.

d. A daughter, married or not, adult or minor who does not possess full faculty of reasoning.

Sadaq under Islamic law refers to the dower. It is the duty of the husband to pay the dower agreed upon to his wife. This can range from a token sum to a substantial amount of wealth though not limited to cash. The sadaq must not be something a muslim is not allowed to own. The payment of dower, its value of quantity, whether in cash or kind should be specified by the husband during the solemnization of the marriage.

The offer and acceptance of sadaq connotes that the parties have agreed to live together according to the dictates of Islamic law. It is an important aspect of the marriage which must be performed. Where the sadaq is not paid, the marriage is void.

Mahr is another type of gift which is solely given to a bride in an Islamic law marriage by the intending husband. Mahr may be in cash, kind or non-material such as Islamic training and teaching or it can be what is paid up front or can be in form of promise to pay prior to the solemnization. It is agreed upon by the marrying partners and not their presents. Mahr must be paid before or during the solemnization.

There have been debates on whether sadaq and mahr are the same. They are however synonymous, but the difference between them is that sadaq is for the parents, bride and the celebration while mahr is for the bride alone.

The Nikkah is the muslim marriage ceremony. The marriage contract is signed during the nikkah and it is the event at which the bride and groom say “I do.” Before the nikkah can take place, there are essential pre-conditions which must be taken into consideration before a marriage ceremony can be conducted. They are:

a. There must be the existence of a marriage guardian, that is the waliy.

b. There must be a proposal and acceptance.

c. There must be two witnesses present.

Dissolution of an Islamic law marriage is given different terminologies in Islamic law depending on the process and procedure adopted in doing it. The different processes are:

a. Mubarat: This is where the couple mutually agree to go their separate ways.

b. Tatliqul Qadi: This occurs when the court has to impose separation on the unwilling party to divorce.

c. Talaq: This is divorce made by the husband by pronouncing one, two or three talaq either explicitly or implicitly. It is the dissolution of the marriage at the instance of the husband releasing his wife from the obligations of the marriage.

d. Al-khul: This is a dissolution in which a woman, her waliy or third person seeks the consent of the husband to release his right of marriage over the wife, usually, in lieu of a compensation paid to him. This is mainly at the instance of the woman when she can no longer cope with her marital obligations.

The dissolution of marriage under Islamic law is a process and there are laid down procedures which must have been followed before a couple can consider divorce. These steps to be taken are listed below:

a. The husband and the wife are expected to sit down to discuss effectively on every issue in contention between them.

b. They are to invite their immediate family who must be representatives from both the husband’s and wife’s sides, for further dialogue where they are not able to resolve their differences on their own.

c. Where the efforts by immediate family to reconcile both parties fail, a separation would take place. Both parties are expected to live together under the same roof, eat together but not sleep together. The said period can last up to three months.

d. After the period of separation has ended and efforts at reconciliation yield no result, divorce is allowed.

The judicial ways of dissolving an Islamic law marriage are as follows:

a. Fasakh: This is the annulment and dissolution of a marriage that binds a husband and wife because of the existence of several issues that hinder the continuation of the marriage which could be marriage between family members or relatives who are forbidden to marry each other, marriage to someone else’s wife, the husband cannot afford to pay mahar or nafkah which is the allowance to those under his responsibility; the waliy or witness is considered a sinner or other circumstances which may be difficulties faced by the wife because the husband has disappeared, the husband is imprisoned, the husband hurts the wife is an extreme manner. If such defective marriages have not been consummated, Islamic law stipulates that they should be dissolved. The parties are however free to re-enter into the contract of marriage complying with the rules. If the marriage has been consummated, the way to remedy it is to order that the dowry befitting the class of the woman be paid and all the repugnant conditions set aside.

b. Ta’liq: This is the postponement of divorce to another time or another act. Here, the divorce does not occur when the husband pronounces ta’liq but happens if the condition mentioned in the pronouncement of the ta’liq is breached. An example is “if you go to that place, you will be divorced (talaqed).” Where the wife goes to that place, she is divorced. The court is obliged to investigate the truth independently by hearing witnesses or accepting an oath sworn by the husband and wife.

The grounds which an application for a court decided divorce under Islamic Law must contain are the following:

a. Injury or discord between wife and husband.

b. Failure of the husband to provide maintenance.

c. Prolonged absence.

d. Failure to provide sexual satisfaction.

Where judicial divorce has been obtained but before the marriage is actually brought to an end, the wife must observe the period of three to four months which is known as iddah. The woman cannot remarry during this period as such marriage is considered void.

The husband is obligated to still maintain the wife during this period because the marriage is merely dormant and not yet terminated as there is the opportunity for reconciliation between the parties.

The effect of an order of divorce made by the court is that the wife does not have to make any payment to the husband or reimbursement of mahar especially where cruelty in the form of physical ill-treatment or deliberate sexual desertion is present. A legal obligation is imposed under Islamic law on the husband to maintain the wife by providing her with basic needs irrespective of her own resources. Where the husband fails to discharge this obligation, the court my grant him a period of two months to comply because failure to comply will enable the court to dissolve the marriage. Rungumawa v. Rungumawa (2002) 1 NWLR (Pt. 747) 153.

The parents of the child are jointly entitled to custody of the children. Where the marriage is dissolved by death, the mother is entitled to the custody of the young children unless she remarries outside the immediate family of the husband or shows herself unfit for maintenance or care of the children.

The right of the woman to custody of the children of the marriage is recognized under Islamic law and she is given preference over the man in matters of custody.

Where a woman is adjudged incapable of having custody of a child, it will be granted to any of her female relatives in the order of priority which is as follows:

a. Maternal grandmother.

b. Maternal aunt.

c. Paternal grandmother.

d. Child’s father.

e. Child’s sister.

f. Child’s paternal aunt.

g. Father’s maternal aunt.

The maintenance of the children of a marriage rests on the father. The man is duty bound to take care of his children until they become independent. The male child is however dependent on his father till he has attained the age of puberty and is able to stand on his own and make a living.

The responsibility does not fall back on the father if the child loses the capacity to earn living or becomes incapacitated mentally after the father must have provided the child with the necessary training that made him earn a living.

The responsibility of a female child rests on the father till she is married and the marriage is consummated. The responsibility however continues even if she is divorced and has not attained the age of puberty.

The right of a wife to get maintenance during marriage is absolute but after the dissolution of the marriage, her rights to maintenance are limited. Where there is dissolution of marriage, the wife will only be entitled to maintenance from the husband till the iddah period, which is a period of three months has passed. Islamic law does not provide maintenance for the wife after the period of iddah has elapsed.

The right of a wife to get maintenance during marriage is absolute but after the dissolution of the marriage, her rights to maintenance are limited. Where there is dissolution of marriage, the wife will only be entitled to maintenance from the husband till the iddah period, which is a period of three months has passed.

Islamic law does not provide maintenance for the wife after the period of iddah has elapsed.