➥ CASE SUMMARY OF:
Tasiu Rabiu V. Aishatu Amadu (SC.147/2003, 13 Jan 2012)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Paternity of a child under Islamic Law.
➥ CASE FACT/HISTORY
The Respondent as plaintiff had brought a claim against the Appellant as Defendant on grounds of lack of maintenance since delivery, removal and retention of her personal properties, denial of paternity of the child. Accordingly, she sought to know her relationship with the Appellant. Following those claims, the trial Area Court No.3 Katsina, Katsina State decided to take the issue bordering on the child’s paternity while stepping aside the other claims. The Court summoned the plaintiff’s mother and took her evidence. The plaintiff later produced one witness to confirm to the Court the actual date of her delivery. The defendant, it would appear was reluctant in calling any witness to confirm the date of plaintiff’s delivery. After having considered the statement made by the parties and of the single witness, the trial Area Court Judge delivered the judgment wherein he gave paternity of the baby to the defendant. He was dissatisfied and lodged an appeal before the Upper Area Court 1, Katsina (hereinafter referred to as “U.A.C”). After reviewing the evidence of witness at the trial Court, the UAC Judge allowed the appellant to call his witness he had claimed the trial Court did not afford him opportunity to do so. The learned Judge of the UAC however, held that the Appellant consummated or was presumed to have consummated the marriage and that the Islamic principle of “LIAN”; was not applicable in the circumstance of the case. Aggrieved, the Appellant further appealed to Sharia Court of Appeal, Katsina. After hearing the appeal and carrying out further investigations, the Court affirmed the decision of the Upper Area Court. On further appeal to the Court of Appeal, it also affirmed the decision of the Sharia Court of Appeal and dismissed the appellant’s appeal. It is the dismissal of this appeal that has necessitated the present appeal to this Court filling his Notice of Appeal on 23/1/2003, which contained 6 grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. WHETHER the Court below was justified in granting paternity of the child in issue to the Appellant notwithstanding the fact that the Marriage between the parties hereto was void-ab-initio?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[‘The contents of the above passages are very clear. In the instant case, it is not shown that the respondent was a slave. There was therefore no need for any medical examination to establish paternity. Besides, the time when the marriage was concluded between the parties was said to be 20/12/90. Both the trial Court and the upper Area Court and, the Sharia Court of Appeal as well found that the Respondent herein delivered her baby on 5/7/91. Clearly, the baby was delivered within wedlock period of gestation. By the prophetic Hadith, the legitimacy of the child founded in wedlock, otherwise the adulterer is liable to stoning as punishment. The medial examination has shown that as at 15/2/91, the Respondent was 20-22 weeks. The law presumed, in the circumstance, the appellant had sexual intercourse with his wife. Where a child was born within the minimum period prescribed and accepted for a normal birth, going by the Islamic jurisprudence, there is the presumption of legitimacy. In the instant case, having taken all the circumstances into consideration, I shall apply that principle of Islamic jurisprudence. It is accepted that a child born within 6 months or 5 months and 25 days is legitimate child since the maximum period of gestation is 5 years while the minimum period is 6 months.’]
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✓ DECISION:
‘In the light of the unfortunate circumstances that culminated into this case, I shall say in passing, that suitor should have wide consultations and full understanding of each other during courtship. This is to avoid unpleasant and ugly circumstances that will result in the abrupt termination of their nuptial tie. Couple should look very well before they leap. Since in this case the appellant cannot substantiate any allegation of misbehaviour levied against his wife, he must live with any short-comings perceived by him. I have no cause to interfere with the findings of the lower Courts including the Court of Appeal in refusing to act on Medical Report in question. In the light of the foregoing, I find no merit in this appeal, and is hereby dismissed. The judgment of the Court of Appeal is affirmed. I make no order on costs. We quite appreciate the in-depth research and deep inquiries and consultations with the leading Islamic jurists in resolution of this matter by both Learned Counsel for the parties.’
➥ FURTHER DICTA:
⦿ MEANS BY WHICH PATERNITY OF A CHILD IS CONFIRMED UNDER ISLAMIC LAW
In Islamic Law, paternity of a child is confirmed by any of the three ways viz: (a) Marriage (b) Acknowledgment (c) Evidence The first is the most important. From the marriage, then comes the offspring. It presupposes that the child has parent from the valid marriage. Paternity of a child therefore under Sharia is quite important. A child without traceable father does not command respect and honour from eyes of the public. He suffers psychological debasement in the society for not just fault of his. This is why legitimacy is viewed with all seriousness in Sharia legal system. That is why the Great Prophet of Allah Muhammad (Peace Be Upon Him) once admonished thus: “A woman who ascribes a child’s legitimacy to someone who is not responsible for its conception has committed a grave offence, thereby alienating 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 on himself, universal disgrace.” It follows from the above Hadith therefore that, if a child is born outside wedlock is not considered legitimate. But if the illicit relationship is established appropriate sanctions on the parties involved are given. See AL-TAJU AL-JAMIU LIL USULI FI AHADITH AL-RASUL of Ustaz M. A. NASIF. — S. Galadima JSC.
⦿ DENIAL OF CHILD BORN LESS THAN SIX MONTHS AFTER MARRIAGE
Taking the general view of the majority of the Islamic jurists into consideration, where a child is born, in a legal wedlock, but under a period of six lunar months less five days, from the date of marriage, then the child cannot be attached to that husband. The authority for this statement is to be found in the JAWA HIR ALIKLIL. It is stated at page 381:- “Under no circumstance shall pregnancy or child (of marriage) be denied where the wife, delivers complete baby within a period lesser than six months five or six days less, from the date, of the marriage contract. In that situation paternity can be denied without the necessity of having resource to Lian (mutual imprecation) as there exists a legal barrier (between the child and its suspected father)”. — S. Galadima JSC.
⦿ PRESUMPTION OF PATERNITY UNDER ISLAMIC LAW
Therefore by way of summary for the purposes of Islamic Law, paternity is presumed where:- (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 hindrance. This includes seclusion between the spouses (Kha-Iwah); sleeping together (mabeet); letting loose the curtain. (c) The child is born between the minimum or maximum period of gestation. (d) There is no legal denial, lian by the spouses. — S. Galadima JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Tajuddeen O. Ladoja Esq.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
