Family law

Muslims Contracting Marriage Under The Act: A Setback For Islamic Law

The Marriage Act is the primary legislation that provides for the celebration of marriage in Nigeria. The only form of marriage recognized in Nigeria under the Act is monogamous marriage (marriage between one man and one woman). Islamic law is also a strong advocate of marriage. However, the Muslim conception of marriage differs from the Marriage Act conception according to which marriage is not a mere civil contract but a sacrament. The Islamic family law recognized polygamous marriage.

Islamic law, means, ‘ the way to a watering plane’.it is the path not only leading to Allah, the most High, but the path believed by all Muslims  to be the path shown by Allah; the creator Himself through His messenger prophet Muhammad (P.B.U.H).1

This is the only reason why Muslims are obliged to strive for the implementation of that path and that of no other path. In Quran 65v18;

     “We made for you a law, so follow it, and not the fancies of those who have no knowledge”. 2

This article focuses on the analytical study of Muslims contracting marriage under the Act. In our society today, Muslims contracting marriage Under the Act has been a factor in the application of Islamic law in Nigeria. Islam is religion practice by the Muslims, and Islam brought a law known as Shariah(Islamic Law).

Who are Muslims?

Muslims are people who adhere to Islam. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of Allah as it was revealed to Muhammad, the main Islamic prophet. The majority of Muslims also follow the teachings and practices of Muhammad (sunnah) as recorded in traditional accounts (hadith). 3

 Statutory Marriage

The classic definition of a statutory marriage is that given by Lord Penzance in Hyde v. Hyde(4) as the voluntary union for life between one man and one woman to the exclusion of all others. Section18 of the Interpretation Act(5) defines a monogamous marriage as a marriage which is recognized by the law of the place where it is contracted, as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage. In contradistinction to both customary and Islamic marriages, statutory marriage is provided and celebrated in accordance with the Marriage Act 1914 and Matrimonial Causes Act 1970. By section 7 of the Marriage Act, statutory marriage is initiated by the giving of a notice of marriage by either party to the Registrar of Marriages where the marriage is intended to take place. The notice shall be in a form and should be signed by the party giving the notice.

The concept of marriage under islamic law

In Islamic law, marriage – or more specifically, the marriage contract – is called nikah, which already in the Quran is used exclusively to refer to the contract of marriage.(6) Islamic marital jurisprudence allows Muslim men to be married to multiple women( a practice known as polygamy). In Shoharat Singh V. Jafri Begum, the Privy Council said that nikah ( marriage) under the islamic law is a religious Ceremony.(7)

The sanctity attached to the institution of marriage in the Islamic law  system has neither been comprehended nor sufficiently appreciated by outsiders. Thus, marriage according to islamic Law is a contract for the purposes of legislation of intercourse, procreation of children and regulation of social life in the interest of society by creating:

1-the rights and duties between the parties themselves, and

2-between each of them and the children born from the union.(8)

Effects of Muslims contracting Marriage under the Act

It’s well established law that in the case of conflict of law, the law governing the agreement or transaction will be applicable when there are issues in-between the parties to the contract. Unless, if the transaction are not known by the law.

However, marriage conducted under the Act is gorverned by Marriage Act 1914 and Matrimonial Causes Act 1970. Which means if there are issues relating to the marriage, the English law will prevail over any other law whether the law recognizes the contract or not. And also, the marriage ceremony is done in the court with the presentation of a marriage certificate.

Therefore,if Muslims should contract a marriage under the Act, the only law that will govern the marriage is the English law which does not give room for polygamous marriage, only monogamy marriage. The Quran has made polygamous marriage lawful for a Muslim to marry more than one wife.

Moreso, the distribution of deceased estate or property will be distributed with the provision of Will in accordance with his/her will among the family, but within the islamic law of succession permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of properry.

Furthermore, it’s very pertinent to note the legal implications of divorce is the division of property and assets acquired during the marriage. In most jurisdictions, property division is based on the principle of equitable distribution, which means that the court will divide the property fairly between the parties but not necessarily equally. Although, under the Islamic law divorce has been a permissible act but not to the extent of sharing property into two, instead it gives room for maintenance of the wife and the children.(9)

Conclusion and Recommendation

It has been clearly established that the Muslims contracting marriage under the Act, it’s a set back to the application of islamic law in Nigeria. Because as a Muslim practising the religion of  Islam, the law governing your act and conduct is Islamic law. There is nothing the law left on torch because it sources are the Quran and Sunnah. Meanwhile, the marriage Act or the English marriage doesn’t accomodate some certain concept and practice. And also, there is no way that a man made law can perfect the life of the people than a divine law.

At this point, I strongly recommend that the Muslims to follow the right path of Islam with the guide from it law, and contract marriage in line with the the principle of islamic law. The only way in which the islamic law can gain a ground in the Nigeria legal system is when the muslims govern their affairs in line with the doctrine of  Islamic law.

References

1- www. history.com editor

2- Sayyid auth, Hadhu ul-Din( this Religion of Islam)

publication  page 19

3- Quranic injunction Q65:18

4- (1866) L.R P&D 130 at 133

5- Cap 92 laws of federation of Nigeria 2004

6- Marriage in Islam by Nargis Virani page 59-60

7- Qureshi (MA): marriage and matrimonial Remedies,(1978) page 43.

8. Definition based on the Quran and traditions.

9. Legal service india E-journal

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About Imran Ridwan Anuoluwapo

Imran Ridwan Anuoluwapo, is a graduate of English literature from Usman Dan Fodio University, Sokoto. He is currently a student of law at the University of Maiduguri. His area of interest is Islamic personal law, constitutional law, oil and gas, commercial law, international law, corporate practice, and criminal law. His candid for mentorship and training. He is reachable vide/WhatsApp 08131077061 and imranridwan@gmail.com