A COMPARATIVE STUDY OF WIFE’S RIGHT TO MAINTENANCE IN ISLAMIC AND STATUTORY LAWS IN NIGERIA: A CASE STUDY OF ZARIA AND SABON-GARI COMMUNITIES OF KADUNA STATE.
1.0 GENERAL INTRODUCTION
1.1 Background to the Study
The Study falls under English and Islamic family law, which is the basis of a tranquil mutual existence in a society. Islamic law is defined as the code of law derived from the Quran and the teachings of Prophet Muhammad SAW.On the other hand, statutory law is the term used to define written laws, usually enacted by a legislative body.Statutory laws vary from regulatory or administrative law that are passed by executive agencies, and common law, or the law created by prior court decisions. Maintenance is the core and kernel of a marriage because no marriage can survive well without maintenance. Therefore, it is the husband‟s legal obligation to maintain his wife during the subsistence of the marriage. This obligation of the husband towards his wife entails her incontestable right to lodging, clothing, feeding and general care. This is so under both Islamic and Statutory laws. Although there are some instances where the two laws
Under Islamic law, the Arabic word for maintenance is “Nafaqah” which is defined as means of support or sustenance. Legally, it connotes all those things which are necessary to support life, such as food, clothes, healthcare, lodging and general care. The responsibility for the maintenance of wife is a duty which the husband is enjoined to discharge cheerfully without reproach or injury.
The Holy Prophet (S.A.W.) is reported to have said during his farewell sermon that
“…then fear Allah regarding women, for you have taken them by the word of Allah and met their private parts lawfully by the word of Allah…And they have upon you, the right
Of feeding and clothing in an equitable manner…”It is also reported on the authority of Mu‟awiyyah al-Qushairi (R.A.) who said “Oh the Apostle of Allah, what is the right of the wife, a man has upon him” to which the Prophet replied “to feed her when you feed yourself, clothe her when you clothe yourself and you should not beat her face, do not repulse her and do not desert her except inside the house”.
In the same vain, The Holy Qur‟an 65:7declares thus: “Let him who has abundance spend out of his abundance and whoever has his means of substance straitened to him, let him spend out of that which Allah has given him”.
The concept of maintenance under statutory law is different from the common law rule. Common law is based on precedent or case law, common law allow judges to decide cases based on rulings of prior cases with similar circumstances. Statutory law is written law as decided by the legislature or other government agency, the legislation will mainly be based on rules and regulations either mandating or prohibiting certain behaviours of the general public.Under the common law, maintenance of a wife can be seen as a one way traffic that is the husband is under the obligation to maintain his wife.However, under the statutory laws; it is a two way traffic.A spouse is required to maintain the other spouse depending on the circumstances of the case. Under the English Common Law, the incidence of marriage imposes on the spouses a number of obligations one of which is the wife‟s right and husbands duty for maintenance. This obligation on the husband arose from the fact of cohabitation and the wife‟s management of the household. A husband and wife may enter into an agreement to live apart, such a separation release each spouse from obligation. In such a situation, if he fails to provide her maintenance and she has no adequate means of support, she becomes at common law his agent for the purpose of obtaining necessaries.The wife‟s agency of necessity is intended to enable her procure such necessaries for herself and her children as the case may be. Necessaries here include food, clothing, medical expenses and other basic needs but do not include luxuries. Similarly, a wife who has sufficient means of her own to purchase necessaries is not entitled to pledge her husband‟s credit as there is in fact no necessity. This is the case where for instance she earns sufficient income to sustain herself adequately. Where she is already adequately supplied with a particular necessity, the husband cannot be liable for any further supply of the same item. The husband will also avoid liability if he provides his wife with adequate maintenance.