Whether a Kadi can Compel a Wife Who Seeks Divorce Through Khul to Explain Her Reasons for Seeking Divorce

CASE TITLE: KAURA v. KAURA (2023) LPELR-60731(CA)

JUDGMENT DATE: JULY 17, 2023

JUSTICES : MUHAMMED LAWAL SHUAIBU, JCA
RIDWAN MAIWADA ABDULLAHI, JCA
EBIOWEI TOBI, JCAA

DIVISION: CRIMINAL LAW AND PROCEDURE

PRACTICE AREA: ISLAMIC LAW AND PROCEDURE

FACT:

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 which forced her out of the matrimonial home for almost two years, 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, appellant appealed to the Court of Appeal

ISSUE(S) FOR DETERMINATION:

The appellant formulated three issues for 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?

COUNSEL SUBMISSION(S):

The appellants argue that Khul’i, a form of divorce in Islamic law, should be treated as a separate claim distinct from allegations of cruelty and maltreatment. They believe that when a woman seeks Khul’i, she must prove her claims of cruelty, maltreatment, or other grounds for divorce through the testimony of reliable witnesses. If she fails to provide this evidence, her claim should be dismissed.

On the other hand, the respondent contends that a woman has the right to seek Khul’i as a way to end her marriage, and she can state her reasons for seeking this relief without the need to call witnesses. They emphasize that Khul’i operates differently from judicial divorce, which requires evidence to prove the allegations against the husband. It was further contended that even if the respondent mentioned cruelty and maltreatment as reasons for seeking Khul’i, this does not change the nature of her claim. The respondent argued that in Islamic law, a wife cannot dissolve her marriage under Khul’i by herself; it typically requires her husband’s agreement or a judicial process.

DECISION/HELD:
In conclusion, the Court of Appeal dismissed the appeal.

RATIO(S):

ISLAMIC LAW AND PROCEDURE – ISLAMIC LAW MARRIAGE: “Whether a Kadi can compel a wife who seeks the dissolution of her marriage through khul to explain her reason for seeking a divorce”

It is settled that a Kadi cannot compel a wife who seeks the dissolution of her marriage through khuli to explain her reason for seeking a divorce. It is purely a matter of contentment. Once the wife is discontented with the marital life in relation to her husband to the extent that it appears to the Kadi that harmonious co-existence between the couple is no more feasible and the couple would transgress the bounds of Allah, then dissolution of the marriage by Talaq simpliciter or through khul’i is the only answer.

The rationale for that was aptly stated by I. T. Muhammad, JCA (as he then was) in USMAN v.USMAN (Supra) at pages 127–129, paras D–E, thus:

“This form of dissolution of marriage is sanctioned by the Shariah with a view to assuring the women that she has been endowed with similar rights as the man. Though its practice is rarely retorted to, as is the case in general with the dissolution of marriages, Its own peculiar nature allows that if the wife is unhappy in her marriage and the relationship between her and the husband becomes so strained that a harmonious union between them becomes impracticable but for no overt fault or guilt of the husband, she may seek a divorce from him. She shall surrender to him the dowry and, where necessary, other material gifts to compensate for his material and moral losses“.

In the present case, the claim of the respondent clearly shows that she wanted the dissolution of her marriage with the appellant through khul’i and that the incidents of cruelty, maltreatment and other reasons put forward in the claim are not distinct and separate claims. Thus, there was no need for her to call evidence in support of the claim of Khul’i.” Per SHUAIBU, J.C.A.

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