CHAPTER ONE
- GENERAL INTRODUCTION
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 SAW1.On the other hand, statutory law is the term used to define written laws, usually enacted by a legislative body2.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.3 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 differ.
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.4 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…”6It 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”.7
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 public8.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.
Furthermore, under the Matrimonial Causes Act High court is vested with powers on appropriate application to make an order for the maintenance of a spouse or the children of the marriage. In the exercise of this function, the court has a free hand to make such order as it thinks fit, consequently, the discretion of the court in this respect is unfettered. But the decree directs that the courts should have regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
Statement of the Problem
Right to maintenance of a wife is very fundamental in both Islamic and statutory laws applicable in Nigeria. Several researches have been conducted and many books published on this topic in the two legal systems.
However, every now and then, you find cases of dispute between spouses arising from violation of such right to maintenance which in many instances leads to divorce. The question is do the husbands allow their wife‟s to freely enjoy these rights if they are aware of them? And to what extent Islamic and Statutory laws provide for wife‟s right to maintenance? If there are clear provisions then why is it that cases are repeatedly seen between spouses due to lack of maintenance? These and many other problems are going to be examined in this research.
Aims and Objectives
The main aim of this research is to find out whether the wife‟s right to maintenance is exercised as stated in the Quran and the statutes respectively with the view to achieve the following objectives:
- To examine the provisions on the wife‟s right to maintenance under Islamic and statutory
- To find out the differences and similarities of wife‟s right to maintenance under Islamic and statutory
- To proffer solution whether there is non- compliance to such
Justification
This research was embarked upon to clarify a lot of misunderstanding among spouses as to the wife‟s right to maintenance and also to provide additional material for students and other interested persons in the study of comparative law of wife‟s right to maintenance .
Research Methodology
The methodology adopted in this research is doctrinal as well as empirical. The Qur‟an and Sunnah, being the primary sources are relied upon, even though references to some
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