Khul’i as a Process of Dissolution of Marriage under Islamic Law

Case Title: Kaura v. Kaura (2023) LPELR-60731(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On 17TH JULY, 2023

PRACTICE AREA: ISLAMIC LAW AND PROCEDURE (DISSOLUTION OF MARRIAGE)

LEAD JUDGMENT: MUHAMMED LAWAL SHUAIBU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on dissolution of marriage under Islamic Law.

FACTS:

This is an appeal against the judgment of the Zamfara State Sharia Court of Appeal, sitting at Gusau, affirming the judgment of Upper Sharia Court Kauran Namoda.

The respondent sued the Defendant/Appellant, her husband, seeking the dissolution of her marriage with him for the following reasons:

i. The defendant was beating her.

ii. He accused her of adultery.

iii. He threw away her personal belongings from her room, and

iv. Other abuses and defamation of character forced her out of the matrimonial home for almost two years, and seven months.

The Upper Sharia Court granted her divorce based on khul’i. Being dissatisfied with the judgment of the Upper Sharia Court on the aspect of khul’i, he appealed to the Sharia Court of Appeal, which affirmed the decision of the Upper Sharia Court. Still dissatisfied, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The appellant formulated three issues for the determination of the appeal which are:

“1. Whether the lower Court was right to have affirmed the judgment of the trial Court which was not supported by any evidence nor in accordance with Islamic Law and Procedure?

2. Whether the lower Court was right to have affirmed the judgment of the trial Court which was given in breach of the appellant’s right to a fair hearing?

3. Whether the lower Court was right to have affirmed the judgment of the trial Court which clearly shows evidence of bias and errors on the part of the trial Court?”

DECISION/HELD:

In conclusion, the Court of Appeal dismissed the appeal.

RATIOS:

• ISLAMIC LAW AND PROCEDURE- ISLAMIC LAW MARRIAGE: Position of the law as regards the dissolution of marriage through the process of Khul’i
• ISLAMIC LAW AND PROCEDURE- ISLAMIC LAW MARRIAGE: Whether a Kadi can compel a wife who seeks the dissolution of her marriage through khul’i to explain her reason for seeking a divorce
• ISLAMIC LAW AND PROCEDURE- ISLAMIC LAW MARRIAGE: Whether taking of evidence is required in the process of dissolution of marriage through khul’i
• COURT- BIAS OF COURT: Whether allegation of bias can be based on the exercise of discretion of Court
• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: What the concept of fair hearing entails; effect of breach of the right to a fair hearing

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