Sharia Court Rules Polygamy is illegal for Muslims who Marry Under The Marriage Act

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According to Sharia Court sitting in Ilorin Kwara state, a Muslim man who contracted a marriage under the Marriage Act can only engage in polygamy in the event of divorce.

"A Muslim man who contracted a registry marriage as his first marriage under the Marriage Act and wished to take a second wife for any reason or change his wife must first divorce his first wife." By Sharia Court of Appeal, Ilorin in Mohammed Vs. Mohammed in Appeal No. KWS/SCA/CV/AP/IL/14/2022.

The Sharia Court of Appeal decided that the Administration of Estate Law of Kwara State, rather than Islamic Personal law, will be utilized when it comes to the administration of an estate of a deceased who had an ongoing marriage under the Act.

The Estate of the late Major Muhammed Adeniyi, who passed away, was the subject of litigation in the case of Mohammed & Anor v. Mohammed & 5 Ors., APPEAL NO: KWS/SCA/CV/AP/IL/14/2022. The respondents had filed a lawsuit before the Upper Area Court 1, Ilorin, with the case number UAC1/CVF/968/2020, challenging the first appellant's claims that Islamic law should govern the distribution of the deceased's estates and the death benefits she received from the Military Pension Board as the deceased's next of kin should be given to the second and third wives who were also married in an Islamic ceremony.

Upon learning of the lawsuit, the first wife joined and argued that the Upper Area Court lacked jurisdiction to hear the case due to her marriage to the deceased under the Marriage Act and that the lawsuit was an abuse of the legal system due to a case that was already pending between the same parties at the High Court of Ilorin under suit number KWS/2/2020.

The Upper Area judge rejected the complaint because there was no misuse of the Court's procedure. The deceased and the second appellant were not cohabitating at the time of the deceased's death, creating an implied separation.

Dissatisfied with the decision, the appellants filed an appeal with the Kwara State Sharia Court of Appeal, requesting that the Court decide whether Kwara State estate administration law or Islamic law would apply to the estate of Major Mohammed Adeniyi. He was married by the Act or Islamic law.

Omoniyi Odeyemi, the appellant's attorney, argued that rather than Islamic law, the deceased's estate should be governed by Kwara State's Administration of Estate Law because he was married under the Marriage Act and passed away without leaving a Will. He also claimed that the subsequent unions were invalid abinitio.

Shariah Court Rules Polygamy is illegal for Muslims who Marry Under The Marriage Act
Shariah Court Rules Polygamy is illegal for Muslims who Marry Under The Marriage Act.

The respondent counsel, Sarafa Shogo, submitted that the conduct of the deceased by his subsequent marriages according to Islamic law should govern the distribution of the deceased estate and not the administration of estate law.
The Kwara State Sharia Court of Appeal, Ilorin, in allowing the appeal, considered the decision of the Supreme Court in Obusez vs. Obusez (2007) AllFWLR (PT.374) 227 @ 252, Nebuwa v Nebuwa (2018) LPELR-45097 (CA) and held that:

"The estate of late Major Muhammed Adeniyi would ordinarily have been governed by Islamic law if he had not by his own choice contracted a valid and subsisting marriage under the Act with the 2nd appellant. Dissolution of a marriage under the Act cannot be presumed, speculated, or conjectured as erroneously done by the trial court."
The Court also cited S.A.Giwa, the learned author of the book, the status of the registry and Islamic marriage and further held that.

"In law, the deceased, by opting for the registry marriage, has changed his "factory setting" religion of Islam, and the only way he could legally unbundle himself and return to the "factory setting" from the status he willingly put himself, is by legally repudiating the statutory marital relationship he had with the 2nd appellant, through a legal divorce."

The Court also resolved the issue of abuse of court process against the respondent. It held that "the suit before the court below is found to be an abuse of court process and has robbed the trial court of the jurisdictional competence to entertain same."

The Kwara State Sharia Court of Appeal allowed the appeal. The Court also set aside the ruling delivered by the Upper Area Court 1, Ilorin, on the 14th of February 2022 and struck out suit No. UAC 1/CVF/968/2020.

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