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Last week’s discussion dwelt much on the rights of women married under the Marriage Act (Registry marriage) in the sharing of properties acquired during the pendency of the marriage. Unlike women married under the Act, women married under the African native law and custom are not afforded any protection by the court. Cases abound where a woman married under native law bore children for her husband is thrown out of the marriage without any monetary or proprietary compensation given to her, after enduring hardship and toil in the marriage.
It is quite saddening that despite the abundance of enormous discretionary powers in the courts, the divorced woman is left in a worse state than she was before the marriage. Even the law is highly weighted against such women receiving any relief. This is confirmed by the anachronistic provision of section 69 of the Matrimonial Causes Act that defines a marriage to “include a purported marriage that is void but does not include one entered into according to moslem rites or other customary law…”. What this means is that married couples under Islamic/sharia and customary law cannot take benefit of the provisions of the Matrimonial Causes Act, the only law that expressly provides for compensation and reliefs in cases of divorce, custody of children and maintenance in Nigeria.
It is my view that the practice of leaving a woman married under native law and custom penniless in the event of divorce is unconstitutional, repugnant to natural justice, equity and good conscience. By virtue of section 34 of the 1999 Constitution Cap C23, LFN2004 “every individual is entitled to respect for the dignity of his person …and accordingly no person shall be subjected to torture or inhuman or degrading treatment…”. The Courts have severally pronounced against repulsive practices that make human being worthless in the community of mankind. In the case of Ukevs.Iro (2002) FWLR PT 129 @ 1454 ratios 2 &3 the court unequivocally held that such derogatory practice and customs which deprive women of constitutionally guaranteed rights are illegal and there is need to prevent indecent customary law from finding its way into Nigerianjurisprudence. In a similar vein, the Court of Appeal held in the case of Enenduvs.Ibezim QLRN Vol 1 (1986) @222 that Igbo Customary law regarding children born out of wedlock as that of the woman’s family is repugnant to natural justice, equity and good conscience.
Professor Emeka Chianu in his Article “Women, The Family and The Law” remarked quite frankly that ‘There is no rule of customary law which forbids the wife from maintaining her children and even supporting her husband in times of financialdifficulties”. Why then is it different, when the woman is on the other side? The Customary Courts are adequately empowered by the laws creating them to make such order as may meet the justice of the case before them. For instance I am yet to see any provision in any State Customary Court Law and Rules or Sharia Law that prohibit the court from granting financial reliefsor a share of the matrimonial property to a woman married under sharia or customary law, in the event of divorce. Customary Courts by their nature are enjoined to do substantial justice in all matters before them and not to be unduly bogged down by technical points. In the case of Hall vs. Hall (1982) 3 FLR 379, Lord Denning came up with the doctrine of the “Ordinary Common Justice”. This “Common Justice” concept was applied in the case of Egunjobivs.Egunjobi (1976) 2 F.N.R. 78, where the court held that the wife was entitled to a third share in the value of the matrimonial house.
The admonition of Lord Denning, the grand advocate of judicial activism in the celebrated case of Parker vs. Parker (1954) All ER p.22 should encourage legal and judicial minds to do justice even if the heavens will fall. Lord Denning aptly put it thus: “What is the argument on the other side? Only this; that no case has been found in which it had been done before. The argument does not appeal to me in the least; if we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the whole world goes on. That will be bad for both.”
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