Duty of a husband to maintain his wife under Islamic law
Faruku Ubandoma Tambuwal v. Zainab Aliyu Tambuwal
CITATION: (2021) LPELR-55025 (CA)
In the Court of Appeal
In the Sokoto Judicial Division
Holden at Sokoto
ON THURSDAY, 17TH JUNE, 2021
Suit No: CA/S/100S/2018
Before Their Lordships:
ALI ABUBAKAR BABANDI GUMEL JUSTICE, COURT OF APPEAL
SAIDU TANKO HUSSAINI JUSTICE, COURT OF APPEAL
MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL
FARUKU UBANDOMA TAMBUWAL – Appellant(s)
ZAINAB ALIYU TAMBUWAL –Respondent(s)
LEADING JUDGMENT DELIVERED BY MOHAMMED BABA IDRIS, J.C.A.
The Respondent is married to the Appellant in accordance with Islamic rites. By a statement of claim dated June 15, 2016, with Suit No. CV/TR/48/2016, the Appellant was sued by the Respondent before the Sharia Court, Dogon Daji (trial Court) demanding the payment of her feeding entitlement for three years and six months is the period she purported to have been with her parents after she left the Appellant’s house where they cohabit as husband and wife.
The trial court ruled that the Appellant shall pay the Respondent the sum of N378, 000 as her feeding entitlements for the period of three and a half years basing its assessments on the three expert witnesses brought before it.
The Appellant being dissatisfied with the judgment of the trial court appealed to the Upper Sharia Court, Tambuwal but he was unsuccessful. Being further dissatisfied, the Appellant appealed to the Sharia Court of Appeal, Sokoto sitting in Tambuwal. The Sharia Court of Appeal set aside in part, the decision of both the trial Court and Upper Sharia Court, Tambuwal and substituted it with its own, thereby ordering the Appellant to pay the sum of N324, 000 as feeding entitlement to the Respondent for three years, which the Appellant admitted before them.
Being dissatisfied with the judgment of the Court below, the Appellant has appealed to the Court of Appeal.
ISSUES FOR DETERMINTION
The Court determined the appeal on the following issues viz: 1. Whether the Court below was right when it held that the Respondent has the right to feeding entitlements by the Appellant even though she has deserted her matrimonial residence. 2. Whether there was fair hearing on the side of the Appellant.
Appellant’s counsel argued under the first issue that considering the claim of the Respondent before the Court below, the Respondent could not be said to be entitled to feeding entitlements from the Appellant in view of the fact that it was the Respondent who deserted her matrimonial residence, and that under Sharia Law, a woman that deserts her matrimonial residence without just cause loses the right to be fed by the husband, and that the mere fact that the husband could not bring her back by legal means did not mean that the husband had slept on his right.
Appellant’s counsel submitted that the decision of the trial Court mandating the Appellant to pay the Respondent maintenance money even though the Respondent was not entitled to it was a grave violation of the principles of Islamic Family Law, and therefore void. The Appellant did not admit that the Respondent had stayed in her father’s house for a period of time and that for a plaintiff to succeed in his claim, there must be evidence in support of the pleadings.
The case of ALHASSAN VS. ISHAKU (2016) 10 NWLR (PT. 1520) 230 was relied on.
On the second issue, it was argued that the proceedings were not fair to the Appellant because he was not allowed to cross-examine the Court-appointed expert witnesses; BAHJAH PG. 105; KAIDOJIN DA NAUOIN KIWA GA KAYAN DA KE GABAN SHARIA (2015) ISBN 978 – 978 – 53847 – 2 – 7 BY ABDUN NASIR ALHASSAN MAFARA, PG. 27; WANGARA VS. TASMIYAR KARA SLR 164;
Respondent’s counsel argued that under Islamic Law, even where a wife deserts her matrimonial home, she would be entitled to be fed by her husband. That is where a husband is capable of bringing the wife back to the matrimonial home, even by an order of Court, but the husband refuses to do that as in the instant case, the wife will continue to enjoy the entitlement of her feeding from the husband. Reliance was placed on SIRAJUS-SALIK VOL. 2, PAGE 116. It was argued that the Appellant did not raise any defence with regards to the issue of maintenance.
On the second issue, it was argued that the Appellant was given a fair hearing to cross-examine the expert witnesses and to ventilate his case; that the Court conducted IIZAR to both parties, and therefore the proceedings were fair. Reliance was placed on MEDINAT & ORS VS. ADAM SQLR (2013) VOL. 1 (PART IV) 162.
RESOLUTION OF ISSUES
The Court held that Islamic Law imposes a duty on the husband to maintain his wife. This duty arises as soon as the marriage contract is completed and continues until the contract of marriage ends either through separation or death. Generally, maintenance refers to what is spent to support one’s family with food, clothing, accommodation and other expenditures. See IBRAHIM ANAS, ABD AL-HALIM MUNTASIR, ATIYYAH SAWALIHI AND MUHAMMAD KHALF ALLAH AHMAD, MUJAM AL-WASIT, DAR IHYA AL-TURATH AL ARABI, BEIRUT N. D, VOL. 2, PG. 943.”
In Surah al-Talaq; 65:6, the Quran states as follows: “Let the women live (in ‘iddah) in the same style as ye live, according to your means; annoy them not so as to restrict them. And if they carry (life in their wombs), then spend (your substance) on them until they deliver their burden…” The Quran also states in Surah al-Talaq; 65:7: “Let the man of means spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him; Allah puts no burden on any person beyond what he has given him….”
As to the Sunnah of the Prophet (pbuh), Jabir (r.a.) said that the Prophet (pbuh) said:
“Fear Allah concerning women! Verily you have taken them on the security of Allah and intercourse with them has been made lawful to you by words of Allah. You too have right over them, and that they should not allow anyone to sit on your bed whom you do not like. But if they do that, you can chastise them but not severely. Their rights upon you are that you should provide them with food and clothing in a fitting manner….” See IMAM MUSLIM, SAHIH MUSLIM (TR), ‘ABD AL HAMID SIDDIQI, KITAB AL-HAJ, VOL. II, N. P., N. PP, N. D., PP. 615 – 616.
The Court also held that there is a hadith to the effect that if the husband did not provide sufficient maintenance while he is able to do so, the wife can even take the husband’s property in secret but in a kind manner, to fulfil her need. See AL-BUKHARI, SAHIH AL-BUKHARI (TR.), MUHAMMAD MUHSIN KHAN, CHAPTER AL-NAFAQAH, VOL. VII, 6TH EDITION, KAZI PUBLICATION, LAHORE, 1983, P. 212.
As to the ijma of the Fuqaha’, all are unanimous on the fact that the husband is obliged to provide maintenance to the wife when a husband is an adult person (baligh) unless if the wife shows disobedience (nushuz) to the husband. See JALAL AL-DIN ‘ABD AL-RAHMAN AL-SUYUTI, AL-ASHBAH WA AL-NAZAIR, DAR AL-KUTUB AL-ILMIYYAH, BEIRUT, 1983/1403, P. 219.
The Court further held that Muslim jurists have discussed the fulfilment of several conditions to entitle the wife to maintenance by the husband. Firstly, the wife does not refuse to have sexual intercourse with the husband. Her refusal will disentitle her to maintenance. Secondly, the wife is capable of having sexual intercourse. If the wife is incapable due to her physical impediment that prevents sexual intercourse, but the husband nevertheless enjoys a conjugal relationship with her and knows her defect, the husband is still liable to maintain her.
Thirdly, the husband is a major person and capable of having sexual intercourse. If the husband is a minor, but he has sexual relations with the wife, he is obliged to maintain her. Finally, either the husband or the wife is not incapable of having sexual intercourse due to death or sickness. Nevertheless, if intercourse still takes place in that condition, the husband is obliged to provide maintenance to the wife. See AL-DUSUQI, AL- ‘ALLAMH SHAMS AL-DIN AL-SHAIKH MUHAMMAD ‘ARAFAH, HASHIYAH AL-DUDUQI ‘ALA AL-SHARH AL-KABIR, VOL. 2, DAR AL-FIKR, BEIRUT LEBANON, 1998/1419, PP. 799 – 800.
The Court held that Muslim jurists have also discussed situations where a wife is considered nushuz or disobedient and thus disentitled to maintenance from her husband. An example of nushuz is when the wife prevents the husband from touching her or declines to have sexual intercourse without lawful reasons. What are lawful reasons are rather subjective but among the examples that were given is an illness, which results in pain after having sexual intercourse. See AL-ZUHAYLI, VOL. 7, P. 779.
A wife is also considered nushuz in going out from the husband’s home without the husband’s permission, except in cases of necessity like the house is falling down or she has to visit her parents who are sick or for the purpose of her own treatment. A wife is considered nushuz if she refuses to move to the matrimonial home after her marriage to the husband. See AL-ZUHAYLI, VOL. 7, Pp. 779 – 780.
The Court, however, held that where a wife leaves the matrimonial home to flee a husband who is maltreating her or beating her or abusing her, and so on, in that case, the shortcoming and transgression would be that of the husband and not the wife, in which case the wife will be entitled to maintenance. The Court held that the Appellant has failed to show any evidence to disentitle the Respondent to maintenance.
On issue two, the Court held that a fair hearing according to our law envisages that both parties to a case be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. See EKPETO VS. WANOGHO (2005) ALL FWLR (PT. 245) 1191 SC. The Court then held that the Appellant had the opportunity to cross-examine the expert witnesses and therefore was not denied the right to be heard.
The Court that the appeal lacked merit and accordingly dismissed same.
A. J. Dangero Esq.
– For Appellant(s)
N. Sahabi Esq.
– For Respondent(s)
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