WOMEN'S MARITAL RIGHTS: PERSPECTIVES FROM NIGERIAN LEGAL SYSTEM BY ABDULRAHEEM, N. M. (MRS.

) INTRODUCTION The statuses of women have been a very great concern in almost every society. In some areas, it has passed the stage of sympathetic concern and has entered an era of aggressive feminism.' Some rights are inalienable as they attach to the human person and form an essential part of human-hood. To deprive any human being of these rights will mean to distort his or her human-hood and to destroy his humanity. Human right means the right which the law gives to different classes of people in accordance with peculiar situations, status and position etc. which they have. This paper therefore focuses on the marital rights of women under the three types of laws in Nigeria, namely, the common law (or statutory law), Islamic law and customary law. It is necessary to make this preliminary remark about these three laws, (a) Customary law refers here to the laws of the indigenous peoples of Nigeria. This law varies among the over 450 ethnic groups in the country. In this paper, emphasis will be on those features that are common to them all and where necessary, particular features will be discussed. (b) Common law derived from England. It was imported into Nigeria by the colonial masters. Reference here will be to common law as practiced in England and Nigeria. In Nigeria, common law has been translated into the statutory marriage laws.(c). Islamic law is applicable to Muslims. The Maliki school of law is the Dominant school of Islamic law in Nigeria. Hence, reference to Islamic

Law in this paper means Islamic law

according to the Maliki School.

There is no gainsaying that if all women die in this world simultaneously, leaving behind only the men folk, the world will not survive. However, if all the men die simultaneously leaving only the women folk, the world will continue to survive. This is because, at the time of death of all the men folk, some women would have conceived and later on given birth to male and female children. This therefore ensures the continuity in the existence of the human race 2 . I. THE POSITION OF WOMEN UNDER THE THREE LEGAL ORDER(S). (a) COMMON LAW:

Before these days, women were treated as chattel, and regarded as a subject of inheritance. Nowadays, common law, allows a married woman to possess both movable and immovable properties in respect of which she can sue and be sued. Women however, under common law lack capacity to contract. This doctrine is also applicable in Nigeria by virtue of Statute of General Application. By the fact that spouses share the same legal statute, the marriage vests in the husband the benefit of all contracts already made by the wife. Spouses are however remains liable during the marriage to be sued on their ante-nuptial contracts. A statutory wife lacks the capacity to enter into any contract not even with the husband and where she contracts; neither the husband nor the wife can be sued. Under equitable rule however a married woman can validly be bound by contract to the extent of any separate estate possessed by her but she is not personally liable 3 .(b) CUSTOMARY LAW:

A woman under customary law is treated like a property and subject of testamentary disposition. In ancient Igbo communities, the father or the husband possesses the right and power to discipline or sell his daughter or wife as the case may be. This is because, women, have no legal status and hence no corresponding legal right. They could not own property and they cannot engage in trade of their own, except as agents of their father or their husband to whom rightly belong all the proceeds of the trade. Women in their matrimonial home were regarded as mere domestic chattel 4 . In Igbo land generally, women do not acquire immovable property and their contractual capacity are limited to movable property alone. A woman cannot own land in her own right. She can only have custody of any piece of land to cultivate with the permission of her husband, otherwise, she holds in trust for her male children 5 . In Yoruba custom, women have full capacity to contract, acquire and dispose of all forms of property including land. A married woman cannot dispose of her property whether movable or immovable without the consent of her husband. In the contemporary Nigeria, however, an unmarried woman has the right equal to that of a man to own property under both customary and statutory law 6 . (c) ISLAMIC LAW: Islam recognizes woman as equal and full partner to a man in their matrimonial relationship. Man is the father and the

breadwinner, and woman is the mother and the manager of the household. The role of both is equally essential for the successful working of the family life, fundamental and primary root of human civilization 7 .Islam emphasises the importance of equality as an important instruction to human kind, to treat fellow human beings with dignity and respect with no discrimination or prejudice on any account. The only distinction can be based on fear of God, which God alone can discriminate 8. It may also be stated that a woman as a human being occupied equal status with a man and is treated as equal, and enjoys equal rights and privileges. The fact remains that there is a difference between the sexes. No amount of struggle or discussion can change her sex. As a woman, her special function in life is different form that of a man and she is naturally equipped with a different physical, physiological, biological and even psychological structure. This, Islam has taken into consideration and has allotted different functions to each sex. Therefore, to talk of absolute equality between a man and woman will amount to a complete nonsense, though their general equality as human beings is quite natural and reasonable. This is because men and women are two complementary parts of humanity proceeding from common parents. It is therefore physically impossible to assign them equal functions or to interchange their functions. Islam on this basis has treated them equally where it is naturally so and differently where it is in accordance with nature to do so 9 . The Quran provides: And women shall have rights similar to the rights against them, according to what is equitable, but men have a degree (of

advantage) over them. And Allah is exalted in power wise 10 Therefore, a woman is considered equal to man in certain respects and not so in certain others. This could be best understood in the description of her obligations and rights 11 . Furthermore, there is no doubt that as long as it is destined for a man to be the husband and for a woman to be the wife, she is bound to remain subservient to man; all claims of equality are nothing but absurdity plain and simple 12 . According to the Quran: "Men are protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them... 13 The above quoted Quran explains the superiority of men over the women generally. Qama' from which the word 'Qawam" stems simply means "to rise, to stand up, stand erect to something or challenges 14 ". Hence, Qawwam is used in this sense to explain the natural and divine responsibility of man over women. It is no gainsaying that men are generally economically and physically and even mentally better than women, because God has made him to be so, hence the command of God to protect the woman. It is noteworthy that some women are more economically

endowed and mentally sound than their male counterpart, but this only represents a small fraction of the generality of the women folk. Because the man has been economically placed (superior) over the woman by the Almighty Allah, he is therefore commanded by God to spend his money to maintain and protect his wife either economically or physically. II. (a) WOMEN'S MARITAL RIGHTS AND THEIR LIMITATIONS Common Law

Under the common law, women by virtue of marriage to their husbands are entitle to some rights. This bundle of rights h generally referred to as the right of consortium. The following are therefore some of the rights of women under the law. (I) RIGHTS OF CONSORTIUM

The right of consortium is incapable of a precise definition. However, consortium have been described as the living together as husband and wife with all the incidents that flow from the relationship 15 . A wife may on account of marriage change to her husband's surname and may retain the name even after divorce or death of the husband. In Crowley v Cowley 16 , it was held that the husband has no right to stop her divorced wife from using his surname except she is using it to defraud him. There is no legal obligation for a married woman to change to her husband's surname; this is only effected by custom 17 . The duty to cohabit is also part of the woman's right to consortium. Cohabitation

does not necessarily means living together of husband and wife under the same roof - for example, the nature of the husband's employment or his business may take him away from the matrimonial home for the major part of the year. In such instance, the living apart of the parties is by mutual consent and they will be deemed to be cohabiting in the wider sense 18 . Withdrawal from the matrimonial home will lead to a matrimonial offence of desertion which may finally lead to the collapse of the marriage 19 . Consortium further entails the right of a woman to consummate her marriage. 20 this right does not stop there but continues throughout the duration of the marriage and subsequent impotence of the husband will nullify the marriage 21 . The husband is not under any obligation to submit to the wife's excessive demand of sexual intercourse which may be injurious to the health of the husband. 22 it is a right of the wife to use such reasonable force to resist actual or unlawful violence threatened In the husband in her presence 23 RIGHT TO MAINTENANCE The husband is under an obligation to maintain his wife

24 . The husband's obligation arises from the fact of cohabitation and the wife's management of the household. 25 The old doctrine of 'unity of legal personality' between man and wife meant in practice that the wife, who lacked capacity to own property and to make contractual agreement were unable to purchase their necessaries. An obligation was created whereby the husband was responsible for purchase and debts. 26 This right is not lost even if the husband deserts his wife or drives her out of the matrimonial home 27. A wife's inability to sue her husband when that obligation is ignored led to the doctrine of "agency of necessity" whereby the wife is allowed to pledge her husband's credit to purchase necessaries. The term necessaries include food, clothing, medical expenses and other basic needs but exclude luxuries. This agency is necessary to be presumed to enable the wife procure such necessaries for herself and the children as suitable for her position and status as well as the status of the husband 28 . The person who supplies the wife these necessaries can sue the husband for the money as the principal of the wife 29. Ordinarily, money lent to a wife living apart from her husband is not recoverable

from the husband, except such a loan is used for the procurement of her necessaries. 30 Where a wife has a sufficient means to purchase her necessaries, she is not allowed to pledge the husband's credit, she must contract as agent and not as a principal. Where the wife had already been supplied these necessaries adequately, the husband cannot be made liable for the procurement of the same items. 31 The relevant factor in determining the quantum of the wife's maintenance is the means of the husband 32 However, it mu-.t be noted at this juncture that the right of a woman to be maintained under the common law is terminated when the wife commits adultery, because the husband is not under any obligation to maintain an adulterous wife. Today under the common Jaw, the doctrine of 'unity of legal personality' is of little importance as the statute now imposed a mutual duty to maintain each other on the spouses 34 . Section 78(6) Social Security Administration Act (SSAA) 1992 35 provides that a man shall be liable to maintain his wife and any children of whom he is the father, a woman shall be liable to maintain her husband and any children of whom she is the mother. Section 105 SSAA further provides that where a person persistently refuses or neglects to maintain himself or any person whom he is under an obligation to maintain, and, in consequence of his refusal or neglect,

income support is paid to or in respect of him or such a person, he shall be guilty of an offence. (b) CUSTOMARY LAW

Right to Bride Price It is well established principle of customary law in Nigeria that bride price is essential for a valid customary marriage 36 . Bride price in Yoruba custom is generally referred to as "Owo Ori", it is defined by Nwogugu as follows: "any gift or payment, in money, natural produce, brass, rods, cowries or any kind of property whatsoever, to a parent or guardian of a female person on account of marriage of that person which is intended or has taken place". 37 Customary law does not fix the quantum of bride price for customary law marriage. The quantum differs from one locality to another, sometimes, it may be a subject of negotiation between the two families. In some other place, the man's family will be asked to bring what they consider fit for the bride. In some, it reflects the affluence of the suitor or his family. 38 In some part of Nigeria however, in the Eastern part for instance, there is a statutory limitation on the amount of bride price to be paid and it is an offence to pay or to receive in excess of what is prescribed by the law. 39 The offence is punishable on conviction with six

months imprisonment. Under the customary law, validity of marriage does not depend on full payment of the agreed bride price prior to the marriage. It only requires that part payment must be made before a valid marriage is contracted, but does not insist on full payment before the conclusion of the marriage. 41 The father of the bride is the rightful person to receive the bride price, in his absence, the right devolves on the male head of the immediate family. 42 The effect of a bride price is to create the status of betrothal and does not constitute a valid marriage. 43 (c) ISLAMIC LAW

Before the advent of Islam, a woman has always been treated as an inferior being having no or little right compared to his male counterpart in the Arabia Peninsula, the place where Islam emerged. A woman has always been seen as weaker sex, slow learner, less reasonable and susceptible to sin when compared with her male counterpart. 44 The conditions of women were not better than that of animals as she was not even considered to be human being. She was treated like a piece of property and subject of testamentary disposition. She was discriminated upon in the area of marriage, divorce, inheritance etc. Birth of a female child was considered then as an abomination and a shame to the

family among the Pagan Arabs, to the extent that they prefer to bury her alive. 45 With the advent of Islam, the status of women was elevated to that of human being or better put, to that of his male counterpart The Qur'an revealed that men and women are proceed from the same stock and members of the same species born of tin-same parents. 46 The Quran says: It is He who created you from a single person, and made his mate of like nature, in order that he might dwell with her (in love). 47 Invariably, the Qur'an also refers to men and women as spouses, companions and helpmates of each other:"And God has made for you mates (and companions) of your own nature..." 48 Apart from this, Islam also bestow on women numerous rights in all field of human endeavour to the extent that what the western woman achieve today through struggles, agitations, demonstrations and violence is incomparable with those accorded a Muslim woman by the Qur'an, even without asking for those rights. 49 It was also reported that "The companions of the prophet treated their wives most politely for fear that a commandment concerning them might be revealed, and not until he had passed away did they begin talking with them freely" 50

. The Quran also provides: "And women shall have rights similar to the rights against them, according to what is equitable, but men have a degree (of advantage) over them. And Allah is exalted in power, wise". 51 (I) RIGHT TO DOWER Dowry is known in Arabic term as mahr or sadaq; it is defined by the fuqaha as the money which a woman is owed by a man on account of marriage or sexual intercourse. 52 Dowry as money owed a woman on account of marriage is self explanatory. That it is owed on account of sexual intercourse means that when a man have sexual intercourse with a woman whom he erroneously believed to be his wife. Also when a man had sexual relation with a woman and the marriage does not meet the fundamentals of marriage, the dower of her equal must be paid by the man. 53 The offer of sadaq indicates sincerity of love of the man for the woman, while its acceptance connotes sincere response. The offer and acceptance also symbolize sincere vow of the two sides to live together their matrimonial life according to the dictates of Islamic law. 54 Sadaq may be paid in cash or kind but whatever form it is paid must not be less than 1/4 of a dinar 55 , it must be valuable and lawful

articles which a Muslim could own 56 . The man should be specific to the time of payment, quality and quantity of dowry. Without it, there can be no marriage as there is no support for practice of free marriage in Islam. 57 The opinion that the minimum dowry is Vi of dinar has no strong evidence, as another view have it that there is no minimum dowry paid to a woman. The Prophet is quoted to have said: "Look even if it is an iron ring. 58

Similarly, there is no maximum amount fixed for dowry. The Prophet is quoted by Ali (R.T.A) to have said jointure should not be less than ten Dirhams. 59 However, it is recommended not to be excessive because the least of women in respect of the amount of her dowry might well be the greatest of them in blessing. 60 Uqba bin 'Aamir narrated that the Prophet (SAW) said: "The best jointure is that which is most easy." 61 The Quran provides: "...The wealthy according to his means and the poor according to his means, a gift of a reasonable amount is due from those who wish to do the right things"

62 A woman has the right to refuse her marriage to be consummated (where the dowry is not deferred) until her dowry is paid i.e. she has the right not to undertake the specific conjugal rights she owes until she is paid her dowry due to her. This right to dower is exclusively given to a Muslim woman and not to any other woman in the world. In other communities, a husband is not under any obligation to give dower or marriage gift to his wife (except in Muslim community) and considers the marriage invalid without it. Hence it is only Islam that confers absolute right on women to demand as much dower from her husband as she desires, to acquire it at her discretion, to use and enjoy it according to her wishes. 64(ii) RIGHT TO MAINTENANCE

Maintenance in Islamic law is called Nafaqah. It means what a man spends on his family. It includes food, clothing and shelter. Abu Huraira quoted Allah's messenger (SAW) to have said, "The upper hand is better than the lower one and one of you should spend first on those he is responsible for providing them lest a woman would say feed me or divorce me." 65 Out of all the basis of maintenance, the responsibility of dependence on the basis of marriage is the strongest because it is a term of contract and its arrears must be paid, while other type of maintenance like blood, ownership etc. are act of righteous and their areas need not paid. 66 It is the duty of the husband to maintain his wife. The right of woman to maintenance in Islam is absolute irrespective of whether she is wealthy

and owns a lot of property. The wife however loses this right if she refuses herself to the husband or disobeys him, unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband's house on account of his cruelty. If the husband is poor and the wife supports the family, she is entitled to recover the amount expended by her from the husband when he is in easy condition. Where the husband falls to maintain his wife without a lawful cause, the wife has the right to sue him. 67 A husband must maintain his wife, whether he is rich or poor, Muslim or non-Muslim, healthy or ill, present or absent. 68 It is also the right of a woman to be maintained during the period of Iddah that follows a divorce; when she is a widow, where she is pregnant, until she delivers; and where the custody of the child is with her after the period of Iddah, the husband would be bound to provide for the child. It is incumbent on the fathers to feed and clothe them with correctness and courtesy 69 The Quran says: "Those with ample wealth should spend from their plenty. And as for him who is straightened in his provision, he should spend out from what Allah has given him." 70 Again, Hakim Ibn Mu'awiyyah reported from his father. He said "I said. Messenger of Allah, what is the right of a man's wife over him? He said that you feed her when you eat, and clothe her when you clothe yourself, not strike her on

the face and do not revile her." 71 ' A wife must be provided with a dwelling so that she can be shielded from the eyes of people, and to enable her have freedom of movement, so that there can be enjoyment between the couple. 72 The Quran provides "Live together with them with correctness and courtesy." 73 The notion of maintenance goes so far in Islam that a wife is not obliged to suckle her child. It is rather the duty of the father of the child to procure a foster mother at his own expense if the mother does not want to suckle. 74 (iii) SCALE OF MAINTENANCE

The Hanafi law prescribes that it shall be determined with reference to the social position of both parties. While Shafi maintained that ill position of the husband alone must be considered. 75 where they f actor . Belong to the same status, the first factor in determining maintenance of a woman is the status of the husband, then goes to the status of the wife. Others that count on the part of the woman are her beauty, nobility of birth, education, wealth and status. Thirdly, is the degree of urbanization of life in community where the couple lives and finally is the prevailing cost of living at any given time. As all these changes from time to time, the upward or downward review of maintenance is expected from the husband e.g. the wife may request for upward if they move from rural to urban and the husband may request for downward if he suffers a reversal of fortune.

76 Where the husband belong to a higher status with his wife, he is not expected to provide as much as his status, but should provide above the status of his wife. Where however, the status of the wife is higher, then the first view is that they should maintain according to her status, for he chooses to marry a woman whose status is higher. The second view is that the aggregate of the rich wife and the poor husband should be the measure. The latter view is seen to be the popular opinion because the former ignores the status of the man. 77 Right to Education It is obligatory upon every Muslim male and female to get education, acquire learning and search for knowledge 78 . The Prophet (SAW) said: "The search for knowledge 78 is compulsory upon every Muslim male and Muslim female". 79 Furthermore the first word revealed in the Holy Qur'an to the Prophet (SAW) was an order that he should read: "Read in the name of thy Lord and Cherisher who created man out of a mere congealed blood: Read! And thy Lord is Most Bountiful, He who taught the use of the pen, taught man that which he know not.". 80 The above quoted verses revealed that the Prophet (SAW) should read, it is also significant that such an order was received by an illiterate prophet who innocently replied "I cannot read", and God further commands him to read. 81

Therefore, since it is obligatory on every Muslim male and female to acquire knowledge, a woman has equal right as a man to get education and acquire knowledge. Human being is the best of Allah's creation and it is endowed him with knowledge that his superiority over the angels was established. 82 Islam attaches so much importance to education to the extent that the Qur'an instructs the believers that all of them should not go out for fighting. Rather, they should leave some of them behind who should acquire sound knowledge of religion and should teach the others when they return from fighting. 83 Although Jihad is obligatory upon all Muslim when Islamic state is in danger, but even in such critical situation, the believers have been commanded that not all of them should go to war. Hence, the importance of learning is not ignored. 84 The prophet himself made suitable arrangement for the education of men and women and always feel concern for the women that whenever he felt that they could not hear him (because they sit at the back), he would get closer to them and repeat his instructions. Furthermore, the prophet also appointed one day for the women to listen to their problems, told them solutions and gave them instructions regarding their religious, social and family obligations, sometimes, he appoint', some learned companion to educate women on various issues. 85 The wives of the Prophet Aisha, Hash, Umm Sal amah and other women during the Prophet's time learnt Qur'an by heart. Aisha was said to be one of great memorizers huffaz and she reported a total number of two thousand, two hundred and ten hadith.

86 (v) RIGHT TO EMPLOYMENT

Generally speaking, earring of livelihood for the family is basically the duty of a man. Situation may however arise where a woman have to work for earning livelihood. 87 The Qur'an does not debar women from this: "To men is allotted what they earn and to women what they earn." 88 The above refers to the good deeds one does in life and so also the earning of livelihood. Many traditions pointed to the fact that the Prophet used to permit women to work and earn their living or support the family during his lifetime. Hence it can be concluded that women can engage themselves in lawful profession to earn income for supporting their families in case of need, provided they comply with the instructions of the Qur'an and radish regarding modesty. 89 More so, during the period of inflation, most women assist their husbands, brothers, sisters etc. by putting to use their talents to earn Honest money to make the two ends meet. 90 Bin Kathir was also of the opinion that men have authority over women because they are inherently better than women and hence, prophecy has been limited to men. Therefore, there are things women are not able to do e.g. women cannot be rulers. 91 the prophet is quoted to have said: "Those who entrust their affairs to a woman will never know prosperity." 92

CONCLUSION Right of women and men in Islam is complimentary, it is equal but different. An Islamic scholar is of the view that a man must be able to plough through a woman in order for the family and society to function. It is accepted in Islamic jurisprudence that men are superior to women and that in order for the wheels of society to keep turning smoothly, woman must accept the authority of man and obey them unless a man commands a woman to disobey God. 93 Men are said to be superior to women because of mental and physical capabilities and because of the responsibility to maintain women. 94 Islamic historians, theologians and jurists have today strenuously claim that Islam significantly improved the status of women and granted women right that women in the West did not acquire until the last and even this century. 95 In comparison with the status of western women, it was agreed that for more than 1,300 years ago, Islam gave women the right to own property, to inherit, to education and banned female infanticide. It can therefore be rightly concluded that Muslim women today is superior to the women in the West .96 All in all, to talk of equal right with men will mean to forgo the rights accorded

women by Islam. It will also mean that those rights become the entitlements of men as well e.g. that a woman will also have to maintain the husband. It is therefore suggested that what should be paramount in a Muslim woman's mind is piety and the hereafter, because each and every one of us will give accounts of our deeds to God Almighty.*LL.B, L.L.M., B.L, Lecturer, Department of jurisprudent and international Law, University Of Ilorin 1. Chukwudifu Oputa Women and Children as Disempowered Groups in Women and Children under the Nigeria Law Awa Kalu and Yemi Osinbajo (eds.), (Lagos: Federal Ministry of Justice (undated) P.1 2. Mohammed Sharif Chaudhry, Womens Right in Islam (India) Adam Publisher, 1997 P. xii 3. Otaluka A.O. (Mrs.): Protection of Women under the Law (With particular reference to Nig.) in Women and Children under the Law. Ed. K