Should Muslim of States with no Sharia Courts be physically present in Abuja to marry?
Whether Intending Muslim Couples Of A State With No Sharia Courts Must Be Physically Present In Abuja – In The Case Of Section 14(c) Of The Area Court Act Or The Marriage Contract Could Be Contracted Using Instantaneous Electronic Devices Of Communication Such As Zoom, Etc.?
Few days ago, I had written an article on the title ‘RESOLVING MATRIMONIAL CAUSES UNDER THE ISLAMIC FAMILY LAW IN STATES WITH NO SHARIAH COURTS: SOME RESCUES FOR MUSLIM WOMEN!’, which was published on www.thenigerialawyer.com where I had recommended in the concluding part of the article thus
‘Finally, it is my humble view that section 14(c) of the Area Court Act (supra) would confer the Area Court of Abuja (where the transaction (i.e. the marriage) occurred (even after many years)) the jurisdiction to try and determine such matrimonial causes and or other Islamic law matters between those Muslims. This is the rescue that this paper offers to the intending Muslims for Islamic marriage to move to e.g. Abuja or any State that has the same provisions as the Area Court of Abuja in section 14(c) (supra), else, they are likely to fall in the difficult category of the first situation narrated above in this paper.
The other rescue (for those women already in Islamic marriage and require rescue from the marriage) is where the marriage is contracted and or conducted in that State that has no Shariah Court but at the time when the matrimonial causes arise or the Muslim woman (wife) requires khul’u, the defendant is resident in Abuja (relying on section 14(a) of the Area Court Act (supra) or the Defendant was in Abuja as at the time when the matrimonial causes arise or the khul’u matter arose (even if he later relocated out of Abuja, it would no more matter that he is currently not residing in Abuja). See: section 14(b) of the Area Court Act (supra). This is what I advise our Muslim intending couples to do so as not to be in difficult situation sooner or later having regard to the challenge of not having Shariah Courts established in their States. Though, the solutions provided might be for a time pending when Shariah Courts would be established in all the States of the Federation or in the State where the Muslim who desires resolution of his or her matrimonial causes to be resolved.’.
Furthermore, I had made the following statements in the said article as follows
‘Furthermore, there is another legal issue which I had considered too as to whether such Muslims must be physically present in the case of section 14(c) of the Area Court Act (supra) or the marriage contract could be contracted Using Instantaneous Electronic devices of Communication such as zoom, etc.? This would be the subject of another article by Allaah’s grace!’.
It is this background that has necessitated this article to resolve this issue as to ‘WHETHER INTENDING MUSLIM COUPLES OF A STATE WITH NO SHARIAH COURTS MUST BE PHYSICALLY PRESENT IN ABUJA IN THE CASE OF SECTION 14(C) OF THE FCT ABUJA AREA COURTS (REPEAL AND ENACTMENT) ACT, 2010 OR THE MARRIAGE CONTRACT COULD BE CONTRACTED USING INSTANTANEOUS ELECTRONIC DEVICES OF COMMUNICATION SUCH AS ZOOM, ETC.?’, hence this topic.
First and foremost, I had written an article earlier few weeks ago on the title ‘A RESEARCH INTO THE VALIDITY OF ONLINE ISLAMIC MARRIAGE IN NIGERIA’, which was also published on the social media and I had made the humble submission to the effect that Islamic marriage conducted online via Instantaneous Electronic devices of Communication such as zoom, etc. is valid having regards to all the legal issues considered therein so far those protocols expressed in the said article are fulfilled. Therefore, it is the humble consideration of this paper that ‘would the same online marriage be applicable to rescue Muslims in a State where Shariah Courts have not been established?! And if yes, how would they benefit from the online marriage in their circumstance to confer Abuja’s Area courts original jurisdiction to handle their matrimonial and other Islamic personal law issues/matters whenever there is need since they do not have Shariah courts established for their State?!
Most respectfully, it is my humble submission that though the online marriage or Islamic marriage conducted virtually by the intending couples of States of Nigeria with no Shariah Courts established to handle those Islamic personal law matters listed under section 277 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- would be valid in accordance with my legal submissions discussed in my article titled ‘A RESEARCH INTO THE VALIDITY OF ONLINE ISLAMIC MARRIAGE IN NIGERIA’, nevertheless, such validity would generally (i.e. subject ton some exceptions) not be able to confer jurisdiction on the Shariah Courts of the FCT-Abuja having regard to section 14(c) of the Area Courts Act of 2010, except such intending Muslim couples are physically present in Abuja to conduct the marriage.
My reasons for this submission are summarily, because despite the online/virtual marriage, none of the essentials of the marriage took place in Abuja to confer the Abuja’s Shariah Courts with jurisdiction having regard to section 14(c) of the Area Court Act (supra): i. none of the intending couples resided in Abuja at the time of the marriage proceedings; ii. Offer (i.e. the proposal for marriage) and acceptance of same (Ijaab wal qubuul also known as ‘sighah’) though made online, was not made in areas covering Abuja or within Abuja; iii. Legal Guardian of the bride did not reside in Abuja in the cause of the online marriage proceedings; iv. The two witnesses (or more) required to testify as witnesses were not within Abuja; v. Mahr (dowry) was not paid in Abuja. Nevertheless the above listed grounds ‘i-v’, it is my humble submission that should any of ‘i’ and ‘iii’ (that is to say ‘for either of the intending couples to reside in Abuja at the time of the marriage proceedings; and the Legal Guardian of the bride to reside in Abuja in the cause of the online marriage proceedings) such would have made the Abuja’s Shariah Courts to have jurisdiction to hear the Islamic personal law matters (including the matrimonial causes/matters) arising from such marriage even though the marriage was conducted in Abuja with some of the essentials of the validity of the Islamic marriage to have taken place online.
Either of these two above listed essentials in my humble submission (that is to say ‘for either of the intending couples to reside in Abuja at the time of the marriage proceedings; and the Legal Guardian of the bride to reside in Abuja in the cause of the online marriage proceedings) , would be enough to confer jurisdiction on the Abuja’s Shariah Courts as (in my humble view) they are the major fundamentals of the essentials of the validity of the Islamic marriage that are capable of conferring jurisdiction on the Abuja’s Shariah Courts. In my humble submission, the other two essentials are not qualified to confer such jurisdiction on the Abuja’s Shariah Courts (here, Abuja is made a case study and the same principles would be applicable to any other State that has similar provisions as the provisions of the Area Courts Act of Abuja (2010)).
It is my humble submission that In the event that the above online requirements are not possible to accomplish, then, it is my recommendation to such intending couples and their family members to conduct such marriage physically in Abuja with the most convenient number of trusted witnesses (of a minimum of two and as much number above two trusted witnesses) as they can afford to invite to Abuja. Also, the witnesses to such marriage can be shared with some or one in the State where there is no Shariah court while some or one is in Abuja).
Also, it is my humble reasoning that since either or both the offer and acceptance can be made from either in the other State or in Abuja, also, the mahr or the dowry can be available at the time of the marriage proceedings or paid prior to the marriage or deferred to a later date as permitted by the Islamic law, these two essential elements are not fundamental enough to be capable of conferring jurisdiction on the Abuja’s Shariah Courts having regard to section 14(c) of the Area Court Act (supra), where the marriage was conducted virtually or online, though, like I had said in this article above, that does not mean that such marriage is invalid. Only Allaah knows the best!
For the purpose of emphasis, in Islamic law of marriage (under the Islamic family law), the essential elements of a valid marriage obligate that four (4) essential elements must be present in a marriage before same can be valid in Islamic law: Offer (i.e. the proposal for marriage) and acceptance of same (Ijaab wal qubuul also known as ‘sighah’): Here, according to the Hanafi school of thought, emphasis was laid on this element of sighah. To this School of thought, there must be a definite words of the proposal and the acceptance must also be uttered, both to take place in the gathering where the Ijaab (proposal) is uttered (which is the ‘majlisul-‘aqd or in other words, ‘majlisul-ijab).
Also, ‘it is mustahaab or commendable act to give a sermon (khutbah) before the marriage rites are performed which has the advantage of informing and advising the bride and the bridegroom of their marriage responsibilities in Islam’. (See: Shari’ah: the Islamic Law, by Prof. AbduRahman I. Doi, Ta ha Publishers, London, United Kingdom, reprint 1997, pages: 138- 139. According to Abu bakr Jabir Al –Jazaairy in his book (op. cit.) at page 324, ‘it is a saying of the husband-to-be or his representative at the time of the contract, ‘Marry me to your daughter or so and so girl that you have been left in charge of ‘. So that the guardian will respond to him saying ‘indeed, I have given you my daughter, so-and-so in marriage’. Thereupon the groom says ‘I have accepted her marriage to me’. This in my humble view is to ensure that both parties are at ‘ad idem’ i.e. having the same intention and understanding as to the marriage contract. This author i.e. Abu Bakr Jabir also adds at the same pages 324 – 325 (op. cit.) thus ‘designating a representative for the marriage contract is valid. The husband can authorize whomever he likes. However, for the wife, her legal guardian should conduct her marriage contract on her behalf’.
Legal Guardian: Here the legal guardian is the father of the wife, or his designated representative, or her closest male relative or a man of understanding from her family or the (Islamic) ruler. For this, the Messenger of Allaah *may Allaah’s blessings and peace be upon him) said ‘there is no marriage without a legal guardian’. (the Sunan compilers, and it was graded Sahih by Al-Hakim and Ibn Hibaan).
Two witnesses: Here, the meaning of two witnesses is that two or more just Muslim men should be present at the marriage contract. On this Allaah says in Quran 65:2 thus ‘… And take as witness two persons from among you (Muslims) …’. Also, the Prophet said that ‘There is no marriage without a guardian and two just witnesses’. According to Abu Bakr Al-Jazaairy (op. cit. at footnote of page 323), Al-Bayhaqi and Ad-Darqutni and it is defective. It was reported by Ash-Shafi’i with a different route of transmission that is mursal. Ash-Shafi’i said ‘Most of the people of knowledge go by this’. Attirmithi said the same. Abu Bakr Jabir also commented at page 324 of his book (op. cit) that ‘It is preferable to have more witnesses due to the lack of justice (as described above) in our present time’.
Mahr (dowry): According to Abu Bakr Al Jazaairy (at pages 325-236 op.cit.), Mahr or Sadaaq is what a woman is given that makes it lawful to have lawful sexual enjoyment with her. Giving a Mahr is an obligatory act. This is due to Allaah’s statement ‘And give to the women their mahr with a good heart’. See: Quran: 4:4. And the Prophet Muhammad’s statement thus ‘Find something (to give the woman), even if it is a ring made of iron’. (Al-Bukhari and Muslim). According to this author and a scholar (i.e. Abu Bakr Jabir), ‘it is recommended to make the mahr simple for the bridegroom’. It is also sunnah to mention the mahr in the wedding contract. The mahr is also valid as any lawful thing of value whose value is more than one-fourth of a dinar. Paying the mahr at once along with the marriage contract is valid. Delaying all or some of it as a credit is also valid. However, giving her something before entering upon her for consummating the marriage (i.e. sexual intercourse) is recommended. The mahr is made a responsibility from the time of the marriage contract. Paying it becomes obligatory upon consummation of the marriage. If he divorces her before having sex with her, she will be entitled to half of the mahr, while the other half will be void. If the husband dies before consummating the marriage with her and after the marriage contract, she will be eligible for his inheritance and the complete mahr if it was specified… if the mahr was not specified, she will get whatever is generally given to other women like herself as a mahr. She must also observe the prescribed waiting period for the death of her husband’.
This author has cited his legal authorities for all his positions but I am unable to produce all of these authorities due to insufficient space in this paper. The reader is advised to consult the author’s book at pages: 325-326 (op.cit.). There and then, there is general supplication for the couples and the waliimah (feast) follows, though these two are not essential elements of a valid marriage to such effect that without them, the marriage remains valid. The mahr is like what is known as ‘consideration’ in the normal contract.
I must however state here that it remains a great sadness to my mind that despite how Almighty Allaah has honoured Muslim ladies or women by ensuring that no man shall have sexual intercourse with them without fulfilling the elements of the valid marriage, especially the dowry (though, all these essential elements must be available at the time of contracting the marriage (except where Islam permits delay of the payment of the dowry)) some of these ladies have easily opened themselves up for sexual relationship with a Muslim man who has not fulfilled all his legal obligations under the Islamic law of marriage to have sexual intercourse with them thereby losing their virginity easily! Some regard that since the man has paid their mahr (dowry), then they are already married to him! This their reasoning and or justification is a great misconception because all the other essential elements for a valid Islamic marriage are not yet completed! I pray that Allaah grant all Muslims (including my humble self) complete knowledge, wisdom and understanding of the Islam! Aamiin!
In my humble view too, a Muslim lady has no reason not to be virgin at the time of her marriage contract no matter her age even if she is fifty (50) years of age at the time of the marriage contract except she can prove that: i. she was raped against her consent. ii. she was a divorcee under a legal marriage to a man before. iii. Her husband died. iv. Medical reasons. v. any other reason acceptable by Islam, else, she is a fornicator by losing her virginity and having enjoyed sex from another man prior to her legal marriage, who has no legal right to have sex with her under the Islamic family law with a great consequence and wrath from Allaah! In the same way, it is unlawful and prohibited for a Muslim man to have any sexual intercourse with any Muslim lady (or any lady or female) who is not married to him as his legal wife under the Islamic law! I pray to Allaah to touch and guide those of our Muslim ladies and men aright in this regard!
Furthermore, one other aspect that is very important which has brought about the above Islamic legal principles of a valid marriage is the need to conduct the marriage in a physical place known as the ‘majlisul ‘aqd’ which Means ‘Meeting Place’ under the Islamic law of contractual relationship (mu’aamalaat).
To properly understand the discussion of this section, it is important to initially describe the unique principle of the ‘meeting place’ in the Islamic legal system. As I had extracted from an online Journal written by Alzaagy, Abdulrahman. The Islamic Concept of Meeting Place and its Application in E-Commerce. Masaryk University Journal of Law and Technology. Vol. 1, No. 1, 2007. ISSN 1802-5943 (though not a Nigerian Journal), as follows
‘Among other definitions, article 181 of the Othman Justice Rules Magazine (the Mejelle) classifies the parties’ meeting place as ‘the meeting that is convened for contract making.’ This definition, as can be observed, seems to be insufficient, and the term still needs further elaboration. Hence, another definition, which provides more clarification and precise details, is put forward for this legal principle as ‘the time span during which the involving parties are together to engage with the forming of contract without being busy by something else not related to the negotiated bargaining by any of them.
It is indicated that this definition is adopted by a large number of Hanbali, Shafi and Maliki scholars.’. See, al-Shafiy Jaber (2001)., Majless al-Aqd fi al-Figh al-Eslamy wa al-Qanoon al-Wadhei. Alexandria: Dar al-Jameah al-Jedeedah, pp. 90-92, Shalabi Muhammad (1966)., Al-Madkhel fi al-Ta’areef be al-Figh al-Eslami wa Qawaed al-Melkiah wa al-Uqud fih. Dar al-Taleef Publisher, pp. 408-409, and Al-Ebraheem Muhammad (1986)., Hokom Ejra’a al-Oquud bewasa’el al-Etesalat al-Hadeetha. Jordan: Dar al-Dhiya, p. 50.’.
Thus, the theory of meeting place is considered according to the latter definition as one unit of time. The unity of the meeting place means that the offer and the acceptance must be made at the same time during which the parties are facing each other to conclude the contract, without anything that could divert their attention away from it. Needless to say, the contract must be carried out in the exact place where the involved parties originally initiated their negotiation as they, sometimes, may be involved in business dealings while walking or riding or even travelling in a plan and hence, such a place is not applicable in the law.
Strictly speaking, the offer and the acceptance can never be, in a practical sense, contemporaneous since the offer ceases to exist before the acceptance ‘comes to life’. Thus, to enable the necessary connection to take place, the meeting place is regarded as one unit of time. As such, the offer is deemed to be in existence so long as the contracting parties continue their commercial engagement. The main purpose behind the formation of the theory of sitting place in the Islamic legal system is to determine the allowed time length for the offer to be legally stand for acceptance without bringing potential damage to the offering party, by delaying the issuance of acceptance for a long time after the breaking up of the parties from their meeting place (Zaidan Abdul-Kareem (1982)., Almadkhal Lederashat al-Shariah al-Eslamiyyah. Beirut: al-Resalat Ltd, pp. 290-291.) nor damaging the accepting party as the theory provides him with more time to contemplate the worth and the benefit of the proposal before making any rushed decision.’.
I have already discussed the issue of validity of an Islamic marriage conducted online or virtually in my article referred to above i.e. titled ‘A RESEARCH INTO THE VALIDITY OF ONLINE ISLAMIC MARRIAGE IN NIGERIA’.
In conclusion therefore, it is my humble submission that the intending Muslim couples of a State with no Shariah courts must be physically present in Abuja in the case of section 14(c) of the Area Court Act for the Abuja’s Shariah Courts to have jurisdiction and where the marriage contract could be contracted using instantaneous electronic devices of communication such as zoom, etc (i.e. online or virtually), those conditions explained in this article must be fulfilled for the Abuja Shariah Courts to have jurisdiction to handle their Islamic personal law matters/matrimonial matters including especially the Muslim women who seek Khul’u (divorce initiated by a Muslim wife against her husband) where the husband has refused to divorce her (i.e. no mutual consent) for such Muslim wife to seek judicial pronouncement of divorce of the marriage.
Finally, I accept every error of thought and reasoning and writing etc. in this paper as that of mine. I assure that the error is not made deliberately but as a human error and I accept responsibility for such error while I pray to Almighty Allaah to forgive me and overlook my shortcomings made in this paper and to accept it as rewarding deed for me and as a source of granting me Al-Jannatul Firdaws! Aamiin!