Site icon The News Chronicle

Bigamy And Its Non-Applicability To Marriage Under The Islamic Family Law: A Legal Opinion For Muslim Married Couples In Nigeria

Hameed-Ajibola-Jimoh-Esq.

‘Bigamy’ is an offence under both the Criminal Code Act, 2004 and the Penal Code Act, Laws of FCT-Abuja, 2007 (though not specifically termed ‘bigamy’). Introductorily (and as would be seen in details below), marriage of either of the couples with another person in the pendency of a validmarriage without the valid marriage having been nullified is termed as ‘bigamy’. There have been situations where some Muslim married men have had to marry another woman (or women) to the unawareness of their wife (or wives) already married and these wife (ves) already married might only get to know either by exposure of such marriage during the life time of the husband one way or the other or after his (the husband’s) death, the situation which raises a sort of breach of trust against the husband. Perhaps these men have done so by hiding the second or third or fourth marriage because of the likely reactions of the already married wife (or wives) or for the fear of the majority views of people within the society (which relates to the practices in the matrimonial issues under the English Family/Marriage Systemon monogamy (i.e. of a one husband to only one wife) and not that of Islamic law). This paper therefore aims at sharing the legal opinion for Muslim married couples (i.e. both husband and wife) to understand that under Islamic Family Law, it is allowed for a man to marry more than one wife under his care and or control complying with the Islamic modes of marriage and that the husband does not need to have any secret marriage with another woman and the wife already married should also not allow jealousy and envy to override her religious understanding that a Muslim man under an Islamic marriage has the option and or permission to marry more than one wife under his control. Also, for them to understand that Islam is polygamousin nature all for the good of humanity and the practitioners of the religion (Islam) i.e. Muslims and that Islamic marriage conducted according to Islamic law on marriage is not and never absolutely a marriage of a husband with only one wife- monogamy. This paper also aims to Therefore, a Muslim family should be a strong bond with total submission to the Will of Almighty Allaah.

According to Wikipedia online,‘bigamy’‘is a crime in most countries that recognise only monogamous marriages. When it occurs in this context often neither the first nor second spouse is aware of the other. In countries that have bigamy laws, with a few exceptions (such as Egypt and Iran), consent from a prior spouse makes no difference to the legality of the second marriage, which is usually considered void.In cultures where monogamy is mandated, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing their spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction. Bigamy laws do not apply to couples in a de facto or cohabitation relationship, or that enter such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.’.

Under the Nigerian Criminal Laws, ‘bigamy’ is an offence and punishable with sentence of imprisonment. This is clearly stated in section 384 of the Penal Code Act, Laws of FCT-Abuja (though without mentioning ‘bigamy’ in specific word, which provides thus ‘(1) Whoever having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.’ Section 370 of the Criminal Code Act, 2004 (which is an equivalent law of a State for such State that it is applicable to and which has not legislated its own law for the State, since ‘offences’ are on the Residual Legislative List, which only a State House of Assembly can legislate on except those offences that are incidental to the items contained in both the Exclusive and Concurrent Legislative List, which the National Assembly has exclusive and overriding coverage over under the doctrine of covering the field respectively. See:the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part 1380) 249 SC.), provides thus ‘Any person who, having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony, and is liable to imprisonment for seven years’. It is important for me here to state that ‘bigamy’ and ‘adultery’ are two different offences under sections: 384, 387 and 388 of the Penal Code Act of FCT-Abuja (though bigamy was not specifically named), which provide thus ‘387. Whoever, being a man subject to any native law or custom in which extra-marital sexual intercourse is recognized as a criminal offence, has sexual intercourse with a person who is not and whom he knows or has reason to believe is not his wife, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment for a term which may extend to two years of with fine or with both’. Section 388 provides thus ‘Whoever, being a woman subject to any native law or custom in which extra-marital sexual intercourse is recognized as a criminal offence, has sexual intercourse with a person who is not and whom he knows or has reason to believe is not her husband is guilty of the offence of adultery and shall be punished with imprisonment for a term which may extend to two years of with fine or with both’.These two sections of the Penal Code Act of FCT-Abuja, prohibit and criminalise (respectively)for a married man or a married woman to engage in extra-marital relationship or sexual relationship with another woman or man respectively (where there was no valid marriage to such person(in the case of a man) as either the man’s second or third or fourth wife, since a woman is prohibited from even being married to more than one husband).Therefore, in the FCT-Abuja, both offence referred to in section 384 of the Penal Cope Act (as no such offence is referred to as ‘bigamy’ in the FCT under the Penal Code but the provisions clearly states what amounts to such an offence of ‘bigamy’) and that of ‘adultery’ are criminal and a Muslim man or a Muslim woman can therefore be prosecuted for committing ‘adultery’ under the respective sections: 387 and 388 of the Penal Code. However, as to the offence under section 384 of the Penal Code Act (which is referred to as ‘bigamy’ under section 370 of the Criminal Code Act, 2004 (supra)), this is not applicable to the Islamic Family or the Islamic Personal Law or the Islamic Law on Marriage. This is because, marriage under the Islamic Law is a legal act as stated in the Holy Quran in Quran 4:3 thus ‘Then marry (other) women of your choice, two or three, or four; but if you fear that you shall not be able to deal justly (with them), then only one or (slaves) what your right hands possess’.Therefore, this provision of the Holy Quran has overridden the provisions of section 384 of the Penal Code Act, from being applicable to Islamic Marriage.Also, the superior authority of the Quran in Nigerian Islamic Personal Law has been upheld even by the Supreme Court of Nigeria. See the cases of: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor (1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254) 377; (1992) 7 SCNJ (Pt.11) 388 P.400.I must add that apart from the fact that ‘adultery’ is punished in the FCT-Abuja, under section 384 of the Penal Code with years of imprisonment, it is a capital offence under the Islamic Criminal Law (assuming Nigeria is practising such Islamic criminal law with ‘stone to death’ as a sentence/punishment on the married couple concerned). There was a question and a ruling on the question on islamweb.com which would be supplied here as it is useful for the purpose of this paper which goes thus

‘Question

A non-Muslim friend asked me how is it possible, in recent life, to avoid having relations with a girl before the marriage as long as there are many means to avoid pregnancy or diseases? I want to convince him the dangers of Zina.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Zina (fornication or adultery) is a grave major sin. It is prohibited in all religions due to fatal diseases such as AIDS. It does not only bring down Allah’s wrath, but also causes crimes, generates hatred among people, spoils the chastity of the person and his/her lineage and so forth. Allah, the Exalted, has imposed a great punishment on those who commit Zina in this worldly life and in the Hereafter.

Allah Says (what means): {And those who do not invoke with Allah another deity or kill the soul which Allah has forbidden [to be killed], except by right, and do not commit unlawful sexual intercourse. And whoever should do that will meet a penalty. Multiplied for him is the punishment on the Day of Resurrection, and he will abide therein humiliated – Except for those who repent, believe and do righteous work. For them Allah will replace their evil deeds with good. And ever is Allah Forgiving and Merciful.} [Quran 25: 68-70]

On the Night of Israa’ and Mi’raaj, as recorded in Saheeh Al-Bukhaari, the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) saw naked men and women on a building similar to a furnace, wide at the bottom and narrow at the top, and a fire kindling from the bottom. When the fire starts, they cry and come up; when it goes out, they return to their previous state. When the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) asked about them, the answer was: ‘They are those who committed Zina.’ They will be tortured in the same way till Resurrection.”

Allah warns us against committing Zina as He Says (what means): {And do not approach unlawful sexual intercourse. Indeed, it is ever an immorality and is evil as a way.} [Quran 17:32]

As for the punishment of Zina in the present life, if it is proved, an unmarried person is to be lashed one hundred times, and then, the man should be exiled for one year. This should be carried out by the Muslim ruler. As regards a married person who commits Zina, he should be stoned till death.

Allah Says (what means): {The [unmarried] woman or [unmarried] man found guilty of sexual intercourse – lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment.} [Quran 24: 2]

This punishment is for unmarried persons guilty of the above sin but if married persons commit it, the punishment is to stone them to death, according to Allah’s Law.

The Prophetic Hadeeth explained the above verse stating: “One hundred lashes and one year exile for a bachelor and a married one should be stoned (to death).” [Muslim, At-Tirmithi, Ibn Maajah]

As for your friend’s saying ‘How can I endure?’, we clearly state that whoever believes in Allah, the Final Day, the Reckoning and the punishment, Hellfire and Paradise, should have patience, fearing Allah and longing for His reward.

On the other hand, using medical condoms and so on does not change the Sharee’ah rulings for a believer. But, for a disbeliever, we are to do our best to convince him of Islam and belief since there will be no profit to convince him of the dangers of Zina as long as he is not a believer.

Therefore, dear brother, your first step is to convince him of Islam and the dangers of disbelief. Then, he – Allah willing – will automatically believe in the dangers of Zina.

Allah knows best.’. (Underlining is mine for emphasis).

From the above question and the answer provided, it is my humble belief that the laws on fornication and adultery have been catered for without the need for me to supply further authorities.

Furthermore, and therefore, it is my humble submission that a Muslim man needs not have a secret marriage with either his second or third or fourth wife unknown to his wife (or wives) already married as marriage to more than one wife is permissible in Islam Family Law. I also humbly submit that ‘adultery’ by a married man or woman (apart from its being a capital offence under Islamic Criminal Law) it is a criminal offence under section 384 of the Penal Code Act of FCT-Abuja and punishable under the said section.So, a Muslim man is prohibited from engaging in extra-marital affairs or sex with a woman or female that he is not validly married to under Islamic law of Marriage. Also, married Muslim women must understand that as far as Nigerian Legal System is concerned, marriage (legal marriage) can be in three different forms vis-à-vis: marriage conducted under the Marriage Act; marriage conducted in accordance with the Islamic Law of Marriage (Personal Law); and marriage conducted under the Customary laws or tradition. Any of these three forms of marriages have the legal backup of the law. Each of them is a form of legal marriage. A Muslim may choose whichever that he prefers either based on his religious belief or based on his custom.A Muslim should know that if he marries under the Marriage Act, there are consequences which means that it is a union of one man-one wife (monogamy). Also, if he marries under the Islamic Law of Marriage, it is a marriage that entitles a man to marry up to four (4) wives under his control. And marriage under customs or traditions is governed by its principles. The only thing that I have observed is that, depending on the custom or tradition, the man is allowed to marry wives up to an indefinite number so far he can finance them in the marriage (i.e. under customary law marriage). So, it remains the best for a Muslim (both male and female) to sit down and know what type of marriage that he or she would like to conduct. In any case, any of the three marriages is a legal marriage and is supported by law (under the Nigerian Legal System) but as for a Muslim (male or female) the only type of Marriage recommended for him or her by Almighty Allaah and which in my humble view is the best for both of them (without any need for selfishness or jealousy) is the marriage under the Islamic Law/Islamic Marriage or marriage conducted in line with Islamic Law of Marriage.

Finally, I humbly submit that the offence under section 384 of the Penal Code Act (which is referred to as ‘bigamy’ under section 370 of the Criminal Code Act, 2004 (supra)), this is not applicable to the Islamic Family or the Islamic Personal Law or the Islamic Law on Marriage. This is because, marriage under the Islamic Law is a legal act as stated in the Holy Quran in Quran 4:3 thus ‘Then marry (other) women of your choice, two or three, or four; but if you fear that you shall not be able to deal justly (with them), then only one or (slaves) what your right hands possess’.Therefore, this provision of the Holy Quran has overridden the provisions of section 384 of the Penal Code Act, from being applicable to Islamic Marriage.

 

Email: hameed_ajibola@yahoo.com

 

 

Exit mobile version