Islamic Law Marriage of Nigeria

Although marriage under Islamic law possesses most of the features of customary law marriage already discussed, it is necessary to consider, that system separately. The principal requirements of valid Islamic law marriage are:

Two types of consent are involved here—consent of the parties and parental consent.

(i) Consent of the parties

The parties to Islamic law marriage must freely consent to the union. But under the Malilri School of Islamic law, a father has the right to conclude marriages on behalf of his infant sons and virgin daughters iljbar). The exercise of this right results in chid marriage which is fraught with the danger of facilitating slave trade. But the rule may be ameliorated by the fact that the child has the option to repudiate the marriage contract on the attainment of the age of puberty. However, a father loses his right of Ijbar where he allows his daughter to choose a husband from among her suitors.

Parental Consent For Islamic Law Marriage

As in other systems of customary law, parental consent is necessary for the valid celebration of marriage under Islamic law. In the case of a girl, there must be a marriage guardian, whose consent to the marriage is mandatory. This position is usually occupied by the father or guardian of the bride-to-be.

Saduquat Or Dower

The saduquat (sadaki) or dower represents the marriage payment or bride price received by the parents of the bride-to-be from the suitor in respect of an islamic law marriage. It is infact the entitlement of a woman and not of her parents though paid through the latter. The parents may utilise it for the preparation of their daughter's marriage.

Sharia prescribe only the minimum dower but not the maximum. Its minimum is one quarter of a Dinar. The 1971 Borno Declaration of Customary Law of Marriage put this sum at not less than two Naira nor more than twenty Naira. On the other hand, the Sokoto State Marriage Expenses (Regulation) Law, 1981 stated the value of 'rubun'n dinarin' as determined for the year 1981 as six Naira. In Borno, the dowry (or bride price) consists of cash not exceeding twenty Naira, clothing not exceeding forty Naira in value (which is for the bride's personal use) one hundred kolanuts, two bottles of perfume, one handful of sandal wood, one cigarette tin-full of 'grumbal', one cigaratte tin-full of algama', two pieces of soap and two bonks of vaseline.

The Sokoto State Marriage Expenses (Regulation) Law, 1981 provides for the payment of money gift to the parents of a girl indicating an intention to marry her (kudin binder aure) of twenty Naira. It is an offence punishable with three months imprisonment or N100.00 fine or both to exceed the prescribed limit.

Prohibitions In Islamic Law Marriage

Islamic law prohibits marriage between persons related by affinity or consanguinity. Moreover, a moslem is prohibited from marrying a pagan but not a christian woman. On the other, hand, a moslem woman is precluded from marrying a non-moslem.

Islamic Marriage Cerrmonies

The moslem marriage is solemnized by a mallam in the presence of at least two upright Moslem witnesses. Islamic marriages like its statutory and customary law counterparts has been beset by extravagance and ostentation. In 1971 the Committee Against Immorality and Extravagance of the Sokoto Local Authority was created. Its terms of reference included inter alia the examination of ways of curbing ostentatious expenses during marriage and birth ceremonies.

Its Report condemned among other things, extravagant marriage ceremonies, and constituted a basis for the Sokoto State Marriage Expenses (Regulation) Law, 1981. Section 7 of the Law provides that no gifts shall be made on behalf of a bride, her relations or friends when she is being accompanied to her husband's house. It is an offence under the Law for musicians or praise-singers to participate in taking a girl to her husband's house or attend a marriage ceremony. The Law goes so far as to prohibit the traditional reception (yitun buki) held during a marriage ceremony in the home of the married couple.

In Borno, the Local Authority (Modification of Bomo Native Law and Custom Relating to Marriage Order) 1971, prohibits contributions and donations in respect of any marriage. Moreover, traditional wedding dinners (Miskeni) are to be limited to relatives of the bride and bridegroom only.

Proof of customary law marriage

Customary law marriage being an institution which create status, must be strictly proved in judicial proceedings To establish that a valid customary law marriage was'contracted, evidence must first be led as to the customary law of marriage ofthe locality concerned and the essentials of such mamage. In addition compliance with those essentials must be proved by satisfactory evidence. The best evidence is that of persons who witnessed or took part in the marraige ceremonies.«" Quashie - Idun Ag. J. (as he men was) stated the law succinctly thus in Lawal v Younan.

They called some of the women who have told the court that they and others were married to the deceased person in accordance with Native Custom. I do not think that this form is. the proper rrjethod of proving Native Customary Marriage. Either the person who gave away the woman in marriage or a person who witnessed the ceremony or was sent to ask for the hand of the woman should be called to give evidence in proof of the marriage. I do not think that it is sufficient to call only the alleged husband or wife to testify as to the marriage, neither do I think that an administrator or a person claiming a benefit in the estate is alone competent to give that evidence.

This rule does not make the parties to the marriage or persons interested in it incompetent to testify as to the fact of the marriage but deals rather with the insufficiency of the evidence of such witnesses.# Consequently, the Supreme Court held in Agongo v Aseleke and others1*1 that the uncontradicted evidence of a party to a marriage was sufficient to establish the marriage. The rule as discussed in Lawal v Ibunan, therefore, applies only where the evidence is challenged, in which case there is need for additional evidence to prove the marriage.

The requirement of strict proof of customary law marriage arises from the fact that no ready and reliable record of customary law marriages are kept to which a court called upon to determine the existence of such marriage may rely upon. Unlike statutory marriages, no compulsory and reliable system of registration exists.

Registration of customary law marriages

There is no principle of customary law which requires the recording of customary law marriages. On the other hand, the various steps leading up to and including the marriage itself are marked by public ceremonies which, to some extent, provide evidence of the marriage. The value of such evidence is severaly diminished because it places reliance on the memory of persons who witnessed or participated in the ceremonies. With the passage of time such memory becomes dim and unreliable. Moreover, if such witnesses die, their knowledge of the event will be lost to future generations.

Efforts have been made in various parts of the country to provide for the registration of customary law marriages. The Local Government Laws in most states of the federation authorized local authorities to make by-laws for the registration of customary law marriages within their respective jurisdiction.142 Some of the by-laws do not make registration compulsory nor prescribe any penalty for failure to comply with its requirements.

On the other hand, by-laws in other parts of the country provide for compulsory registration and or sanctions. For instance, the Registration of Marriages Adoptive By-laws Orders, 1956184 which applies in those parts of Lagos, Ogun, Oyo, Ondo and Bendel States where the by-laws have been adopted requires a customary law husband to register the marriage within one month of its celebration. The registrar in this respect is a person appointed by a local government authority to register customary law marriages. The registration is effected in the proper books of the Local Government. Any person may on the payment of the appropriate fees inspect or make copies of the contents of the marriage register. Failure to attend before a Registrar or to supply the details of the marriage is an offence punishable, on conviction, by a fine of four Naira. Again, section 2(e) of the Native Authority (Declaration of Tiv Native Law and Custom) Order, 1955185 provides that a marriage according to Tiv Native Law and Custom between two members of the Tiv tribe is valid if inter alia it has been registered by a native court. In Ashiv Agbende,m it was held that .non-registration of the customary law marriage in question in accordance with section 2(e) of the Declaration rendered it invalid The overall picture of efforts to register customary law marriages is unsatisfactory. First, there is no systematic and compulsory system of registration in some parts of the country. Second, even in those areas where the Local Government authorities are empowered to make by-laws on registration of marriages, the exercise of that power is optional. The result is that a large number of Local Governments have not yet made any by-law in this respect. Third, where by-laws for registration are in force, the resulting record may be of doubtful validity because the Registrar can only record such particulars of the marriage as are supplied to him. He does not record facts which are either within his personal knowledge or certified as true in a certificate. It is hoped that an efficient and compulsory system for the registration of customary law marriages will eventually be devised and adopted throughout the country. The existence of such a system would help to clarify the point at which marriage is established. It would also solve (he problems arising from the present requirement of strict proof of customary law and marriage.