AN INVESTIGATION OF THE METHODOLOGY OF SHARI’AH COURT JUDGEMENTS TO THE TERMINATION OF MARRIAGE AND ITS EFFECTS ON THE LIFE OF MUSLIMS IN KADUNA STATE
ABSTRACT
This research work entittled “An analysis of the approach of Shari‟ah court Judgements to dissolution of marriage and its impacts on the life of muslims in kaduna state” aimed at evaluating the problems and challenges of marriage, in Shari‟ah court in Kaduna state, assessing the factor responsible for deterring reconciliation of marriage cases at home without going to the court, and to explain the general implications of termination of marriage by court. In order to attain the stated goals, the research adopted the descriptive survey method using questionnaires, and observations as tools of collecting information. A total of six hundred (600) questionnaires were distributed in some selected local governments within the three political zones of Kaduna state. Therefore, the selected local governments in Zone” A” is Zaria from zone „B‟ Kaduna from zone „C‟ Kachia. The questionnaire was distributed between three (3) categories of respondents‟ i.e court, Spouses and Public respectively. The five hundred and twenty (520) out of distributed questionnaire were successfully retrieved; the opinions of the respondents were gathered analyzed and presented with the use of Frequency tables and percentages. In respondent‟s Bio-data, while Z and T test were used in testing research hypothesis, More ever; the research find out the following : 1- When there is no possibility of reaching compromise between the marriage couple, according to majority of the respondents is the main reason that influence the court decision the fear of one party harming the other party- Majority of the public respondents do not consider intervention of court marriage cases will bring about peace in the marriage life of the couple – The impact between the spouses and their partner after dissolution of their marriage is not cordial. Lastly; the researcher call on the Spouses, courts judges and general public with the Following words – Spouses should endevour to solve their marriage crisis instead of reporting every problem to their parents or going to the courts.- The court should strictly base their judgement and report on sharia ruling and never allowed biasness or unnecessary intervention from any angle to interfere with their decision..
TABLE OF CONTENTS
Title page …. ……………………………………………………………………………………………ii
Declaration …………………………………………………………………………………………………………………………..iiii
Certification …………………………………………………………………………………………………………………………. iv
Dedication …………………………………………………………………………………………………………………………….. v
Acknowledgements ………………………………………………………………………………………………………………. vii
Abstract ……………………………………………………………………………………………………………………………… viii
Table of content ………………………………………………………………………………………………………………….. viii
Operational Definition of Terms……………………………………………………………………….x
Abbreciation…………………………………………………………………………………………..xii
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study …………………………………………………………………………………… 1
1.2 Statement of the Problem …………………………………………………………………………………… 5
1.3 Objectives of the Study ……………………………………………………………………………………… 7
1.4 Research Questions …………………………………………………………………………………………. 7
1.5 Research Hypothesis …………………………………………………………………………………………. 7
1.6 The Significance of this Study ……………………………………………………………………………. 8
1.7 The Scope/ Delimitation of the Study ………………………………………………………………….. 9
CHAPTER TWOREVIEW OF RELATED LITERATURE
2.1 Overview of Kaduna State ………………………………………………………………………………. 10
2.2 Concept of Divorce in Shari‟ah ………………………………………………………………………….. 12
2.3 Breach of Marriage Agreement (Shiqaq) …………………………………………………………… 15
2.4 Legal Position of Divorce ………………………………………………………………………………….. 16
2.5 Validity of Talaq ………………………………………………………………………………………………………..17
2.6 Forms and Procedures of Dissolution of marriage ……………………………………………… 20
2.7 Types of Dissolution of marriage through Tafwid ………………………………………………… 25
2.8 Distinction between Tafwid and Tawkil ……………………………………………………………… 31
2.9 Annulment or Abrogation of Marriage (Faskh)…………………………………………………… 32
2.10 Forms and Procedure of Talaq ………………………………………………………………………… 34
2.11 Dissolution of Marriage by Mutual Consent ………………………………………………………. 39
2.12 Period of Waiting (Iddah) ………………………………………………………………………………… 41
2.13 The Kinds of period waiting (Iddah) …………………………………………………………………. 43
2.14 Awaiting period for unmarried women (Istibra’i)…………………………………… 45
2.15 Code of Conduct for a Woman in Iddah …………………………………………………………….. 45
2.16 Treatment of Divorce Women during waiting period (Iddah)……………………………….. 47
CHAPTER THREEMETHODOLOGY
3.1 Research Design……………………………………………………………………………………………… 49
3.2 Population of the study ……………………………………………………………………………………. 49
3.3 Sample and Size Sampling Techniques ……………………………………………………………… 50
3.4 Instrument for the Data collection …………………………………………………………………….. 51
3.5 Procedure for data analysis ………………………………………………………………………………. 52
CHAPTER FOUR
PRESENTATION AND DATA ANALYSIS
4.1 INTRODUCTION …………………………………………………………………………………………… 53
4.2 General Public Analyses………………………………………………………………………………………… 63
4.3 Analysis of Spouse Respondents …………………………………………………………………………….67
4.4 Impact of Shari‟ah Courts Judgement on the Life of Muslims ………………………………..75
4.5 Resuts and Findings……………………………………………………………………………………………… 80
CHAPTER FIVESUMMARY, CONCLUSIONS AND RECOMMENDATIONS
5.1 Summary ……. ………………………………………………………………………………………………. 84
5.2 Recommendations …………………………………………………………………………………………. 85
5.3 Conclusions ………………………………………………………………………………………………….. 86
5.4 Suggestions for Further studies ……………………………………………………………………….. 86
BIBIOGRAPHY ………………………………………………………………………………………………………. 87
APPENDIX ……………………………………………………………………………………………………………… 89 OPERATIONAL DEFINITION OF TERMS
- Amruki Biyadiki: Your affair is in your hand
- Aqil: sane (person with a sound brain, not mad or mentally ill).
- Baligh: Matured person
- Bid‟ah: Innovation Ø Da‟wah: Islamic preaching.
- Darar: Separation due to harm.
- Faskh: A legal procedure for declaring a marriage null and void (by judge).
- Haram: Prohibitation to offer divorce during wife menstruation cycle
- Iddah: Waiting period of a divorce woman
- Ila‟: Swearing to Allah by the husband not to hold sexual affairs with his wife.
- Isar: When the husband is in a difficult situation and he cannot fulfill his wife‟s obligation.
- Istibra‟i: Awaiting period for unmarried women. Ø Ikhtariy Linafsiki: Choose yourself (husband command)
- Kafa: compatibility or equality of status.
- Khul: A process of termination of marriage by a wife
- Li‟an: Accusation of wife with zinah (adultery) by the husband
- Mahzur: forbidden that is a state of divorcing a wife in her monthly period
- Makruh: Disapproved
- Mithaq: Solemn convent
- Mukhtar: The freedom to decide what should be done in a particular situation
- Nifas: Menstruation after given birth.
- Rajah: Return that is reconciliation after divorce
- Shiqaq: Marital disagreement.
- Tafwid: Vesting the power of divorce to the wife by the husband.
- Tafwid munajazz: Unconditional delegation
- Tahir: Purity
- Talaq Ba‟in: Irrevocable divorce
- Talaq: Divorce
- Tawkul: Delegation of power by wife or by some one.
- Wajib: Obligatory
- Zihar: The dissolution of .marriage in the situation where by the husband describes his wife as his mother.
ABBREVIATION
ANOVA Analysis of Variance
CH Chapter
L.G. Local government
N.D No date
NO Number
PPMC Peason Product moment correlation
Q Qur‟an
R.A Radiyallahu Anhu
S.A.W Sallallahu Alayhi Wassalam
S.W.T Subhanahu Wa Ta‟alla
CHAPTER ONE INTRODUCTION
1.1 Background of the Study
In the name of Allah, the Most Beneficent, the Most Merciful. All thanks be to Allah (S.W.T) for his ultimate guidance. May the peace and blessings of Allah (S.W.T) be upon the seal of Prophets, Muhammad (S.A.W), his household and Companions. The religion of Islam is guided by rules and regulations (Shari‟ah). The rules and the regulations serve as the basis of the religion and hence means of compliance to the conditions of faith. Thus, deliberate deviation from the said rules is tantamount to crime and invitation to the wrath of Allah (S.W.T).
The position of women was very degrading in the Jahiliyyah period before the coming of Islam. Indeed, it was a period when females were considered as a tool for entertainment and hence they can be discarded and embraced back at wish. Plurality of wives was the order of the day, women were generally denied the right to inherit from what their father left, and were also regarded as a property to be inherited. Thus, the women in preIslamic era had no status. Abdul rahim, (1992).
Likewise, in the Jahiliyya period before Islam, the Arabs used to divorce their wives at any time, for any reason, or without absolutely any reason whatsoever, they were also in the habit of revoking the divorce, and divorce again as many times as they liked. They could, if they were so inclined, swear by one of their idols that they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them and leave them with such notoriety as would deter other suitors, while they, themselves would go exempt from any formal responsibility of maintenance or legal punishment. The following narration from Imam Malik, in his Muwatta, has illustrated the situations, prevalent in the early days of Islam coming down from Jahiliyyah period:
Related as from Malik from Hisham ibn Urwa that his father said, “It used to be that a man would divorce his wife and then return to her before her idda was over, and that was alright, even if he divorced her a thousand times. The man went to his wife and then divorced her and when the end of her idda was in sight, he took her back and then divorced her and said, ‘No! By Allah, I will not go to you and you will never be able to marry again.’ Allah, the Blessed, the Exalted, sent down, ‘Divorce is twice, then honourable retention or setting free kindly.’ People then turned towards divorce in a new light from that day whether or not they were divorced or not divorced.” Imam
Malik: V1:1247
Islam makes divorce obtainable by mutual consent or by the interference of the court on behalf of the wronged party. Thus, the religion stands firmly on guard for morality and human dignity. It does not force a person to suffer the injustice and harm of an unfaithful partner. It does not drive people to immorality and indecency. The Qur‟an Instructed the believers that either you live together with your wives as dictated legally and happily or else you separate in a dignified and decent way. The Qur‟an states:
And when you divorce women and they have (nearly) fulfilled their terms, either retein them according to acceptable terms or release them accourding to acceptable terms, and do not keep them, inted to harm to transgressAnd whoever does that has certainly wrong himself. And do not take the verse of Allah in jest.And remember the favour of Allah upon you and what has been revealed to you of book (i.e, the prophet,s sunnah) by which He instruct you. And fear Allah and know that Allah is knowing of all things. Q2:231
What is morally and humanly most remarkable about Islam in this respect is that it does not force any person to lower his or her dignity and degrade his morality just to obtain a divorce. It is not necessary for a Muslim to “separate” from his or her partner some years before divorce can be granted.
Aishah (R.A) narrated that a man used to divorce his wife at his will, and took her back at his will even though she was in iddah, and even if he divorced her hundred times or more. Doi (1984: 183). Similarly, the story was the same with that of the Romans who possessed the power to put his wife to death for committing an act like drinking wine and the wife had no right to sue for a divorce and, if she solicited separation, her temerity made her liable to punishment. (Gibbon 2006:12). Christianity has a unique system of divorce. It opposes the
Jewish religion and declared divorce as unlawful, mainly attributed to the teaching of Jesus Christ. It went so far as declaring unlawful the second marriage by the person who divorce his wife as well as the women who was divorced by him earlier. The following quotation from Mathew -5:31-32 has been said:
whosoever put away his wife, let him give her writing of divorcement: but I say unto you, that whosoever shall put away his wife, saving for the cause of fornication, caused her to commit adultery: and whosoever shall marry her that is divorced committed adultery.
However, with the advent of Islam it regulates the system of divorce by limiting it to three repudiations divorces at intervals. The husband has the right of revoking the divorce in the first two as long as her waiting period has not expired but has no such right after the third divorce. The Qur‟an commands:
Divorce is twice. Then (after that), either keep (her) in an acceptable manner or release (her) with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not able to keep (within) the limit of Allah. But if you fear that they will not keep (within) the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limit of Allah, so do not transgresses the limits of Allah-it is those who are the wrongdoers (I,e, that unjust) Q;2;229
However, divorce in Islam remains a remarkable principles. Mates are commanded by
Allah to be kind and patient and are reminded of how one may dislike something in one‟s
mate but most likely Allah (s.w.t) has placed much good and virtue. The Qur‟an states:
O you who believe, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take (back) part of what you gave them unless they commit a clear immorality(ie, adultery).and live with them in kindness .for if you dislike them-perhaps you dislike thing and Allah makes therein much good Q;4;19
Equally Abu Huraira (Allah be pleased with him) reported Allah’s Messenger ( ) says;
A believing man should not hate a believing woman; if he dislikes one of her characteristics, he will be pleased with another .Muslim:1431A.H..461 Chapter: (18) Advice with regard to women
Husbands therefore, are assured Allah‟s help if they mean well with their marriage and stay in accordance to the dictate of Shari‟ah. But if they must part by divorce, it is to be sought without intent of injury or harm. If they part gracefully and honorably, Allah (s.w.t) assures them of enrichment of his all-reaching bounty. The Glorious Qur‟an states:
But if they separate (by divorce) Allah will enrich each (of them) from his abundance. And ever is Allah encompassing and wise.
Q4:130
The whole marital context, from beginning to the end, is centered around and oriented on the belief in Allah (S.W.T). The verses dealing with divorce are not dry legal stipulations; they commence and conclude with moral exhortations of high order. The moral commitments of the parties extend far beyond the divorce date. Indeed, the entire question is so incorporated into a highly moral system that divorce is rightly regarded as a moral act in the main.
Divorce is part of life from the negative and hateful side having its type causes, period, stage and categories and other law. All these are fully explained in the Qur‟an and Sunnah as well by scholars.
Islam has strong guidance to dispute resolution that will help to resolve complete disputes surrounding marriage and divorce. It is also important to keep in mind that although divorce is permissible but it is not encouraged. The Prophet (S.A.W) says:
The most abominable lawful, act (halal) in the sight of Allah is divorce; Abu Daud (Vol
2:No,6176:432.)
Couples are strongly enjoined to pursue possible remedies whenever their marriage are deeply challenged. Islam treats divorce as something that is not recommended but permitted only when mutual good treatment is not possible and all reconciliation and mediation efforts have been exhausted. Of course the complexity nature of marriage could demand the intervention of court either to create atmosphere for reconciliation or terminate the continuation of marriage based on the necessity. In view of this, this research is designed to view the activities of Shari‟ah courts in Kaduna state in relation to separation of marriage.
1.2 Statement of the Problem
The basic aim of marriage in Islam is to seek for the pleasure and acceptance of the Creator, Allah (S.W.T). Therefore, marriage as an act of Worship (Ibadah) is a medium through which love and peaceful coexistence is promoted among members of community. However, when there is breach of trust and love among the marriage couples, there will be a threat to either party in marriage and hence if reconciliation failed in such situation it will be better if the marriage is separated.
The challenges in marriage in the contemporary period appear to be severe, and hence in some cases it requires the intervention of courts. The courts in some situations nullify the marriage even when it is against the wish of either of the couples, mostly the husband. However, nullifying of marriages in courts is mostly when reconciliation failed at times through the influence of external forces. In most of the marriage cases, which invited courts intervention that leads to nullification of the marriage usually faced another crisis from either of the party who may later appeal the case in a more superior courts or the crisis remain within the two families. Therefore, to what extent separation of marriage in courts could be determined as correct and free from any influence in its decision making? The proliferation of marriage cases to courts is an indication that the marriages guardians are weak or incapable in controlling the marriage of their children or there was neglect of the basic requirements of marriage such as sincere love between couples before marriage. Of course the courts have the right to terminate marriage when only the couple, have vehemently violated the Shari‟ah injunctions and are not ready to take correction, but what will be the position of the marriage that is unjustly terminated by courts? Can the unjust rulings of courts be disregarded? Who is responsible to champion the course of reconciliation when the matter is taken to court? These questions emanate from the problems that the current research seeks to address.
1.3 Objectives of the Study
The main objectives of this study are:
- To examine the concept of divorce and other forms of separation in Islam
- To evaluate the problems and challenges of marriage, in Shari‟ah court in Kaduna
state.
- To assess the factor responsible for deterring reconciliation of marriage cases at home without going to the court.
- To explain the general implications of termination of marriage by court
- To proffer solutions to the problems and challenges of marriage separation in
Shari‟ah courts in the study area.
1.4 Research Questions
The study is out to find answers to the following research questions.
- What are the concept of divorce and separation of marriage in Islam?
- What are the problems and challenges of marriage separation in courts in Kaduna
state?
- What are the factors responsible for deterring process of reconciliation of marriage cases at home without resulting to court/?
- What are the general implications of marriage termination in court?
- How can the problems and challenges of marriage separation faced by Shari‟ah courts in Kaduna state be tackled in line with Shari‟ah provision?
1.5 Research Hypothesis;
The current research is set with the following hypotheses
HO1. There is no significant difference between the concept of divorce in Islam and the
practice of divorce in Shari‟ah courts.
HO2, There is no significant Relationship between the concept of divorce in Islam and the conduct of divorce in court in Kaduna state.
HO3 There is no significant difference between the process of Islamic concept of
reconciliation (sulh) and the practice of courts in Kaduna state.
HO4, There is no significant relationship between the effect of marriage separation in court and increase in the number of divorce in Kaduna state.
HO5, There is no significant relationship between sharia‟h mension and challenges of marriage separation in Shari‟ah court, in Kaduna state.
1.6 The Significance of the Study
Marriage is rationally expected to be based on love and mutual confidence among the marriage couples. This research will therefore guide the couples to resolve their cases between them or through the assistance of marriage counselors. Similarly, court judges are expected to serve as arbitrators who seek as a mission to reconcile and promote love between the disputing lovers. However, in the recent periods marriage cases are always resolved to be taken to court and some judges allowed influence in their decisions as judges. In view of this, any research that seeks to investigate and carefully study the issues of marriage approach in courts with a view to improve it will not only be of significant to reconciliation process in the courts but it will as well guide the Muslims to understand the implications of raising issues of marriage to court. In addition, it will provide a guide, on the importance of making reconciliation instead of divorcing and hence this will reduce the rate of divorcee and likely crimes as a result of broken homes,And in turn, peace will be established which will assist the government in its developmental projects.
1.7 The Scope / Delimitation of the studys
This research revolved on the approach of Shari‟ah courts in Kaduna State to marriage separations. Kaduna state is divided into three Zones, namely, zone „A‟ with 8 local governments, which are ,Zaria L.G, sabon-Gari L.G, Kudan L.G, Makarfi L.G, Ikara L.G, Soba L.G, Lere L.G,and Kubau L.G.
Zone „B‟ has 7 local Governments; these are Kaduna-North L.G, Kaduna-south L.G, Igabi L.G, Chukun L.G, Giwa L.G, Birnin-Gwari L.G and Kajuru L.G.
Zone „c‟ includes Kachia L.G, Sanga L.G, Jaba L.G, Jema‟a‟L.G`, Kagarkos L.G, Zangon kafaf L.G and Kaura L.G. and kauru L.G Respectively. However, the research was restricted to three senatorial zones; where in each of the zone ones (1) local Government was selected. The selected local government therefore includes Zaria, Kaduna and Kachia while the research covers between the periods of 2010-2016.
AN INVESTIGATION OF THE METHODOLOGY OF SHARI’AH COURT JUDGEMENTS TO THE TERMINATION OF MARRIAGE AND ITS EFFECTS ON THE LIFE OF MUSLIMS IN KADUNA STATE