➥ CASE SUMMARY OF:
Tasiu Rabiu V. Aishatu Amadu (CA/K/123/S/92, 15 Nov 2002)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Paternity under Islamic law;
➥ CASE FACT/HISTORY
The respondent herein, was the plaintiff at the Area Court No.3, Katsina, Katsina State. The appellant was the defendant.
The claim of the plaintiff before the trial court reads as follows:- “I Aisha, I am suing my husband Tasiu because since I delivered he did not do any thing to me and he also removed my properties and claiming that the child I gave birth to is not his own. So I want to know my stand that was the reason I sue him to court. I also want him to pay me back what I spent when I delivered along with my properties he removed. We got married in the Islamic month of Zul-Hajj. Moreover, he had received his properties that he brought to me for the marriage but all my belongings which I took to my house he removed half of them. Also, I spent only two months in his house he divorced me, therefore I delivered 4 months ago now I spent 2 months in his house while I spent 2 months in my parents house totalled 4 months.” The trial court wanted to know from the plaintiff how many months did she spend before she delivered her baby. The plaintiff replied:- “I spent 8 months from the time the marriage was contracted to the time I delivered.” The trial court then asked the defendant whether the allegation made against him was true?. The defendant, in a long story, which I may have recourse to quote in extenso, at the appropriate time, denied the allegation in its totality. In categoric terms, the court asked the defendant:- “Is the child delivered belong to you?” The defendant replied:- “It is not my own because I never have sexual intercourse with her.”
The trial court summoned plaintiff’s mother and took her statement.
Dissatisfied with the trial court’s judgment, the defendant filed an appeal before the Upper Area Court 1, Katsina (hereinafter referred to as “UAC”).
After reviewing the record of the trial court, the UAC Judge allowed the appellant to call his witnesses which he claimed the trial court did not afford him to do. At the end of hearing the appeal, the UAC Judge affirmed the decision of the trial court.
Aggrieved further, the appellant appealed to the Sharia Court of Appeal, Katsina (lower court). After hearing additional information from the parties, the lower court reviewed the record of the case placed before it. In its judgment, the lower court affirmed the decision of UAC.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the child is to be taken care of by the man?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE CHILD WAS CONCEIVED DURING THE MINIMUM PERIOD OF GESTATION; BELONGS TO THE MAN
‘The findings of both the upper and lower courts were, in my view, cogent enough to have settled the issue of whether the child born by the respondent was conceived by her within the minimum period of gestation as a result of her marital relationship with the appellant. It is foolhardy, and I think immoral, illegal, despicable, shameful and incredible, under Sharia dispensation for a person (husband) who has contracted a marriage between himself and a woman (wife) and she, having spent the required minimum period of gestation in his wedlock and without him proving his inability to cohabit with her or subscribes to LIAN procedure, will not turn round to disown the pregnancy conceived or child born within that period of time. Sharia will certainly not allow that kind of cheap scape-goatism or abdication of responsibility. In Islamic Law, no one shall bear the responsibility of another (See: Quran 6: 164; 17:15; 35: 18). Even if it is for argument’s sake, the appellant should note that even where it is proved that the wife, so long as she remains in his marital tie, misbehaved herself and went out to have sexual intercourse with another person, he (the husband) and on one else, shall own the child and bear it’s responsibility. It is stated in the Badru Al-Zaujaini (supra). Translation:- Where a person commits adultery with a married wife with her consent and she conceives, a verdict of HADD punishment is necessary where both or one of them is married if all the preceding conditions (as discussed in the chapter of mutual imprecation) are complied with. Then the child will be attributed to the husband of the wife. Even where (the lady) has no husband, the child cannot be attributed to the adulterer who must under go the punishment of HADD, where he is not the slave-master of the lady and there are no doubtful circumstances to ward off the Hadd punishment. See: page 229 of the book and also: Al-Taju Al-Jamiu (supra) page 350, author’s comments in foot notes.’
⦿ LEGITIMACY OF THE CHILD IS IN WEDLOCK
‘It was found by the trial court, the UAC and the lower court that the respondent delivered on 5/7/91. The period between the two dates above covered 6 months and 15 days. This is something practical which in no way required any physiognomic analysis. Since it was a delivery within wedlock and within the lawful period of gestation, the matter must be taken as finally settled by the prophetic tradition that legitimacy of the child is in wedlock and the adulterer shall have stones against him only. Again, the medical examination showed that as at the 15th of February, 1991, the respondent was 20-22 weeks pregnancy. By that time, the respondent was already a wife to the appellant for almost two months. The appellant did not tender any evidence that he never had any sexual intercourse with the respondent. It is thus difficult to believe him. I think it was too late in the day for the appellant to raise an alarm when the law presumed that he had sexual intercourse with the wife. It is pertinent to state, though in passing that Islam has allowed courtship so that the suitors will have full understanding and examination of each other in order to avoid all unpleasant consequences after conclusion of the marriage. It is for both to make deep inquiries on the mode of life of one another before assenting to be united as husband and wife. Certainly, without concrete and valid evidence to substantiate any allegation of misbehaviour levied against any of the spouses, there shall be no remedy, than to own-up any short-coming or misbehaviours found in the partners. In my opinion, the “lower courts” were quite correct to refuse to act on the medical report in question.’]
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.
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✓ DECISION:
‘’
➥ FURTHER DICTA:
⦿ PATERNITY OF A CHILD UNDER SHARIA IS AS IMPORTANT AS LIFE ITSELF
In treating this matter, which from all intents and purposes is very important, no much industry I must say, has been put by learned counsel for the appellant. Paternity of a child under Sharia, is as important as life itself, if not more. This is because it affects the life span, status and style of the child in question. It makes the child in the eyes of the public either great, respectable and honourable or as the case may be, low and disgraceful. The yoke of illegitimacy continues to haunt him. He suffers psychological debasement in the society for no fault of his. Paternity is an inalienable right of the child as every child must have a father, and one father only. It is also a right of God and no parent shall be allowed by the law to disown a child who belongs to him legitimately except where he has legally disowned the paternity through the process of LIAN i.e. mutual imprecation. It is because of its (legitimacy) weight that is why the Prophet (PBUH) once said:- “A woman who misplaces a child’s legitimacy by relating its descent to some one who is not responsible for its conception has committed a grave offence, alienated herself from God, and will be denied the bliss of eternity. Likewise, a father who obscures his child’s legitimacy by denying his responsibility for its conception has offended God and inflicted upon himself universal disgrace.” — I.T. Muhammad JCA.
⦿ CIRCUMSTANCES THAT GIVES RISE TO PATERNITY UNDER ISLAMIC LAW
I think it is necessary to comment first and foremost on the general circumstances giving rise to paternity and the procedure for disowning it in Islamic law dispensation. Paternity comes about through any of the following three ways:- (1) Marriage (2) Acknowledgement and (3) Evidence. I may not be disposed to discuss the above three ways of paternity in any material length in this judgment for obvious reasons. — I.T. Muhammad JCA.
⦿ PATERNITY PRESUMPTION IN ISLAMIC LAW
Thus, for the purposes of Islamic law, paternity is presumed where:- a) A marriage contract exists between the spouses either De jure or De facto. b) There is actual consummation or possibility of consummation between the spouses without any legal hindrance. This includes seclusion between the husband and wife (khalwah); sleeping together (mabeet); letting loose the curtain (irkhaus-sutuur) etc. c) The child is born within the minimum or maximum period of gestation. d) There is no legal denial, LIAN (mutual imprecation) by the spouses. — I.T. Muhammad JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
I. T. Muhammad, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
