Bigamy And Its Non-Applicability To Marriage Under The Islamic Family Law: A Legal Opinion For Muslim Married Couples In Nigeria

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By Hameed Ajibola Jimoh Esq.

image image

‘Bigamy’ is an offence under both the Criminal Code
Act, 2004 and the Penal Code Act, Laws of FCT-Abuja, 2007 (though
not specifically termed ‘bigamy’).
Introductorily
(and as would be seen in details below), marriage of either of the
couples with another person in the pendency of a valid marriage
without the valid marriage having been nullified is termed as
‘bigamy’. There have been situations
where some Muslim married men have had to marry another woman (or
women) to the unawareness of their wife (or wives) already married
and these wife (ves) already married might only get to know either
by exposure of such marriage during the life time of the husband
one way or the other or after his (the husband’s) death, the
situation which raises a sort of breach of trust against the
husband. Perhaps these men have done so by hiding the second or
third or fourth marriage because of the likely reactions of the
already married wife (or wives) or for the fear of the majority
views of people within the society (which relates to the practices
in the matrimonial issues under the English Family/Marriage System
on monogamy (i.e. of a one husband to only one wife) and not that
of Islamic law).

image

This paper therefore aims at sharing the legal opinion for
Muslim married couples (i.e. both husband and wife) to understand
that under Islamic Family Law, it is allowed for a man to marry
more than one wife under his care and or control complying with the
Islamic modes of marriage and that the husband does not need to
have any secret marriage with another woman and the wife already
married should also not allow jealousy and envy to override her
religious understanding that a Muslim man under an Islamic marriage
has the option and or permission to marry more than one wife under
his control. Also, for them to understand that Islam is
polygamous in nature all for the good of
humanity and the practitioners of the religion (Islam) i.e. Muslims
and that Islamic marriage conducted according to Islamic law on
marriage is not and never absolutely a marriage of a husband with
only one wife- monogamy. This paper also
aims to Therefore, a Muslim family should be a strong bond with
total submission to the Will of Almighty Allaah.

According to Wikipedia online,
‘bigamy’ ‘is a crime in most
countries that recognise only monogamous marriages. When it occurs
in this context often neither the first nor second spouse is aware
of the other. In countries that have bigamy laws, with a few
exceptions (such as Egypt and Iran), consent from a prior spouse
makes no difference to the legality of the second marriage, which
is usually considered void. In cultures where monogamy is mandated,
bigamy is the act of entering into a marriage with one person while
still legally married to another. A legal or de facto separation of
the couple does not alter their marital status as married persons.
In the case of a person in the process of divorcing their spouse,
that person is taken to be legally married until such time as the
divorce becomes final or absolute under the law of the relevant
jurisdiction. Bigamy laws do not apply to couples in a de facto or
cohabitation relationship, or that enter such relationships when
one is legally married. If the prior marriage is for any reason
void, the couple is not married, and hence each party is free to
marry another without falling foul of the bigamy
laws.’.

Under the Nigerian Criminal Laws,
‘bigamy’ is an offence and punishable
with sentence of imprisonment. This is clearly stated in
section 384 of the Penal Code Act, Laws of FCT-Abuja
(though without mentioning ‘bigamy’ in specific word,

which provides thus ‘(1) Whoever having a husband or
wife living marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife,
shall be punished with imprisonment for a term which may extend to
seven years and shall also be liable to fine.’ Section 370 of the
Criminal Code Act, 2004 (which is an equivalent law of a State for
such State that it is applicable to and which has not legislated
its own law for the State, since ‘offences’ are on the Residual
Legislative List, which only a State House of Assembly can
legislate on except those offences that are incidental to the items
contained in both the Exclusive and Concurrent Legislative List,
which the National Assembly has exclusive and overriding coverage
over under the doctrine of covering the field respectively. See:
the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part
1380) 249 SC.), provides thus ‘Any person who, having a husband or
wife living marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife,
is guilty of a felony, and is liable to imprisonment for seven
years’.
It is important for me here to state that
‘bigamy’ and ‘adultery’ are two different
offences under sections: 384, 387 and 388 of the Penal
Code Act of FCT-Abuja (though bigamy was not specifically
named),
which provide thus ‘387. Whoever,
being a man subject to any native law or custom in which
extra-marital sexual intercourse is recognized as a criminal
offence, has sexual intercourse with a person who is not and whom
he knows or has reason to believe is not his wife, such sexual
intercourse not amounting to the offence of rape, is guilty of the
offence of adultery and shall be punished with imprisonment for a
term which may extend to two years of with fine or with both’.
Section 388 provides thus ‘Whoever, being a woman subject to any
native law or custom in which extra-marital sexual intercourse is
recognized as a criminal offence, has sexual intercourse with a
person who is not and whom he knows or has reason to believe is not
her husband is guilty of the offence of adultery and shall be
punished with imprisonment for a term which may extend to two years
of with fine or with both’.
These two sections of the
Penal Code Act of FCT-Abuja, prohibit and criminalise
(respectively) for a married man or a married woman to
engage in extra-marital relationship or sexual relationship with
another woman or man respectively (where there was no valid
marriage to such person (in the case of a man) as either the man’s
second or third or fourth wife, since a woman is prohibited from
even being married to more than one husband).

Therefore, in the FCT-Abuja, both offence referred to in
section 384 of the Penal Cope Act (as no such offence
is referred to as ‘bigamy’ in the FCT under the Penal Code but the
provisions clearly states what amounts to such an offence of
‘bigamy’) and that of ‘adultery’ are criminal and a Muslim man or a
Muslim woman can therefore be prosecuted for committing ‘adultery’
under the respective sections: 387 and 388 of the Penal
Code.
However, as to the offence under
section 384 of the Penal Code Act (which is referred to
as ‘bigamy’ under section 370 of the Criminal Code Act, 2004
(supra))
, this is not applicable to the Islamic
Family or the Islamic Personal Law or the Islamic Law on Marriage.
This is because, marriage under the Islamic Law is a legal act as
stated in the Holy Quran in Quran 4:3 thus ‘Then marry
(other) women of your choice, two or three, or four; but if you
fear that you shall not be able to deal justly (with them), then
only one or (slaves) what your right hands possess’.

Therefore, this provision of the Holy Quran has overridden the
provisions of section 384 of the Penal Code Act, from
being applicable to Islamic Marriage.
Also, the
superior authority of the Quran in Nigerian Islamic Personal Law
has been upheld even by the Supreme Court of Nigeria. See the cases
of: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor
(1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254)
377; (1992) 7 SCNJ (Pt.11) 388 P.400.
I must add that
apart from the fact that ‘adultery’ is
punished in the FCT-Abuja, under section 384 of the
Penal Code with years of imprisonment,
it is a
capital offence under the Islamic Criminal Law (assuming Nigeria is
practising such Islamic criminal law with ‘stone to
death’
as a sentence/punishment on the married couple
concerned). There was a question and a ruling on the question on
islamweb.com which would be supplied here
as it is useful for the purpose of this paper which goes thus

‘Question

A non-Muslim friend asked me how is it possible, in
recent life, to avoid having relations with a girl before the
marriage as long as there are many means to avoid pregnancy or
diseases? I want to convince him the dangers of
Zina.

Answer

All perfect praise be to Allah, The Lord of the
Worlds. I testify that there is none worthy of worship except
Allah, and that Muhammad  sallallaahu  `alayhi 
wa  sallam ( may  Allaah exalt his mention ) is His slave
and Messenger.

Zina (fornication or adultery) is a grave major sin.
It is prohibited in all religions due to fatal diseases such as
AIDS. It does not only bring down Allah’s wrath, but also causes
crimes, generates hatred among people, spoils the chastity of the
person and his/her lineage and so forth. Allah, the Exalted, has
imposed a great punishment on those who commit Zina in this worldly
life and in the Hereafter.

Allah Says (what means): {And those who do not
invoke with Allah another deity or kill the soul which Allah has
forbidden [to be killed], except by right, and do
not commit unlawful sexual intercourse. And whoever should do that
will meet a penalty. Multiplied for him is the punishment on the
Day of Resurrection, and he will abide therein humiliated – Except
for those who repent, believe and do righteous work. For them Allah
will replace their evil deeds with good. And ever is Allah
Forgiving and Merciful.} [Quran 25: 68-70]

On the Night of Israa’ and Mi’raaj, as recorded in
Saheeh Al-Bukhaari, the Prophet  sallallaahu 
`alayhi  wa  sallam ( may  Allaah exalt his mention
) saw naked men and women on a building similar to a furnace, wide
at the bottom and narrow at the top, and a fire kindling from the
bottom. When the fire starts, they cry and come up; when it goes
out, they return to their previous state. When the Prophet 
sallallaahu  `alayhi  wa  sallam ( may  Allaah
exalt his mention ) asked about them, the answer was: ‘They are
those who committed Zina.’ They will be tortured in the same way
till Resurrection.”

Allah warns us against committing Zina as
He Says (what means): {And do not approach unlawful sexual
intercourse. Indeed, it is ever an immorality and is evil as a
way.} [Quran 17:32]

As for the punishment of Zina in the present life,
if it is proved, an unmarried person is to be lashed one hundred
times, and then, the man should be exiled for one year. This should
be carried out by the Muslim ruler. As regards a married person who
commits Zina, he should be stoned till death.

Allah Says (what means): {The [unmarried] woman or
[unmarried] man found guilty of sexual intercourse – lash each one
of them with a hundred lashes, and do not be taken by pity for them
in the religion of Allah, if you should believe in Allah and the
Last Day. And let a group of the believers witness their
punishment.} [Quran 24: 2]

This punishment is for unmarried persons guilty of
the above sin but if married persons commit it, the punishment is
to stone them to death, according to Allah’s Law.

The Prophetic Hadeeth explained the above verse
stating: “One hundred lashes and one year exile for a bachelor and
a married one should be stoned (to death).” [Muslim, At-Tirmithi,
Ibn Maajah]

As for your friend’s saying ‘How can I
endure?’, we clearly state that whoever believes in Allah, the
Final Day, the Reckoning and the punishment, Hellfire and Paradise,
should have patience, fearing Allah and longing for His
reward.

On the other hand, using medical condoms and so on
does not change the Sharee’ah rulings for a believer. But, for a
disbeliever, we are to do our best to convince him of Islam and
belief since there will be no profit to convince him of the dangers
of Zina as long as he is not a believer.

Therefore, dear brother, your first step is to
convince him of Islam and the dangers of disbelief. Then, he –
Allah willing – will automatically believe in the dangers of
Zina.

Allah knows best.’. (Underlining is mine for
emphasis).

From the above question and the answer provided, it is my humble
belief that the laws on fornication and adultery have been catered
for without the need for me to supply further authorities.

Furthermore, and therefore, it is my humble submission that a
Muslim man needs not have a secret marriage with either his second
or third or fourth wife unknown to his wife (or wives) already
married as marriage to more than one wife is permissible in Islam
Family Law. I also humbly submit that
‘adultery’ by a married man or woman
(apart from its being a capital offence under Islamic Criminal Law)
it is a criminal offence under section 384 of the Penal
Code Act of FCT-Abuja and punishable under the said
section.
So, a Muslim man is prohibited from engaging
in extra-marital affairs or sex with a woman or female that he is
not validly married to under Islamic law of Marriage. Also, married
Muslim women must understand that as far as Nigerian Legal System
is concerned, marriage (legal marriage) can be in three
different forms vis-à-vis: marriage conducted under the Marriage
Act; marriage conducted in accordance with the Islamic Law of
Marriage (Personal Law); and marriage conducted under the Customary
laws or tradition.
Any of these three forms of
marriages have the legal backup of the law. Each of them is a form
of legal marriage. A Muslim may choose whichever that he prefers
either based on his religious belief or based on his custom. A
Muslim should know that if he marries under the Marriage Act, there
are consequences which means that it is a union of one man-one wife
(monogamy). Also, if he marries under the
Islamic Law of Marriage, it is a marriage that entitles a man to
marry up to four (4) wives under his control. And marriage under
customs or traditions is governed by its principles. The only thing
that I have observed is that, depending on the custom or tradition,
the man is allowed to marry wives up to an indefinite number so far
he can finance them in the marriage (i.e. under customary law
marriage). So, it remains the best for a Muslim (both male and
female) to sit down and know what type of marriage that he or she
would like to conduct. In any case, any of the three marriages is a
legal marriage and is supported by law (under the Nigerian Legal
System) but as for a Muslim (male or female) the only type of
Marriage recommended for him or her by Almighty Allaah and which in
my humble view is the best for both of them (without any need for
selfishness or jealousy) is the marriage under the Islamic
Law/Islamic Marriage or marriage conducted in line with Islamic Law
of Marriage.

Finally, I humbly submit that the offence under
section 384 of the Penal Code Act (which is referred to
as ‘bigamy’ under section 370 of the Criminal Code Act, 2004
(supra))
, this is not applicable to the Islamic
Family or the Islamic Personal Law or the Islamic Law on Marriage.
This is because, marriage under the Islamic Law is a legal act as
stated in the Holy Quran in Quran 4:3 thus ‘Then marry
(other) women of your choice, two or three, or four; but if you
fear that you shall not be able to deal justly (with them), then
only one or (slaves) what your right hands possess’.

Therefore, this provision of the Holy Quran has overridden the
provisions of section 384 of the Penal Code Act, from
being applicable to Islamic Marriage.

Email: hameed_ajibola@yahoo.com[1]

By Hameed Ajibola Jimoh Esq.

image image

‘Bigamy’ is an offence under both the Criminal Code
Act, 2004 and the Penal Code Act, Laws of FCT-Abuja, 2007 (though
not specifically termed ‘bigamy’).
Introductorily
(and as would be seen in details below), marriage of either of the
couples with another person in the pendency of a valid marriage
without the valid marriage having been nullified is termed as
‘bigamy’. There have been situations
where some Muslim married men have had to marry another woman (or
women) to the unawareness of their wife (or wives) already married
and these wife (ves) already married might only get to know either
by exposure of such marriage during the life time of the husband
one way or the other or after his (the husband’s) death, the
situation which raises a sort of breach of trust against the
husband. Perhaps these men have done so by hiding the second or
third or fourth marriage because of the likely reactions of the
already married wife (or wives) or for the fear of the majority
views of people within the society (which relates to the practices
in the matrimonial issues under the English Family/Marriage System
on monogamy (i.e. of a one husband to only one wife) and not that
of Islamic law).

image

This paper therefore aims at sharing the legal opinion for
Muslim married couples (i.e. both husband and wife) to understand
that under Islamic Family Law, it is allowed for a man to marry
more than one wife under his care and or control complying with the
Islamic modes of marriage and that the husband does not need to
have any secret marriage with another woman and the wife already
married should also not allow jealousy and envy to override her
religious understanding that a Muslim man under an Islamic marriage
has the option and or permission to marry more than one wife under
his control. Also, for them to understand that Islam is
polygamous in nature all for the good of
humanity and the practitioners of the religion (Islam) i.e. Muslims
and that Islamic marriage conducted according to Islamic law on
marriage is not and never absolutely a marriage of a husband with
only one wife- monogamy. This paper also
aims to Therefore, a Muslim family should be a strong bond with
total submission to the Will of Almighty Allaah.

According to Wikipedia online,
‘bigamy’ ‘is a crime in most
countries that recognise only monogamous marriages. When it occurs
in this context often neither the first nor second spouse is aware
of the other. In countries that have bigamy laws, with a few
exceptions (such as Egypt and Iran), consent from a prior spouse
makes no difference to the legality of the second marriage, which
is usually considered void. In cultures where monogamy is mandated,
bigamy is the act of entering into a marriage with one person while
still legally married to another. A legal or de facto separation of
the couple does not alter their marital status as married persons.
In the case of a person in the process of divorcing their spouse,
that person is taken to be legally married until such time as the
divorce becomes final or absolute under the law of the relevant
jurisdiction. Bigamy laws do not apply to couples in a de facto or
cohabitation relationship, or that enter such relationships when
one is legally married. If the prior marriage is for any reason
void, the couple is not married, and hence each party is free to
marry another without falling foul of the bigamy
laws.’.

Under the Nigerian Criminal Laws,
‘bigamy’ is an offence and punishable
with sentence of imprisonment. This is clearly stated in
section 384 of the Penal Code Act, Laws of FCT-Abuja
(though without mentioning ‘bigamy’ in specific word,

which provides thus ‘(1) Whoever having a husband or
wife living marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife,
shall be punished with imprisonment for a term which may extend to
seven years and shall also be liable to fine.’ Section 370 of the
Criminal Code Act, 2004 (which is an equivalent law of a State for
such State that it is applicable to and which has not legislated
its own law for the State, since ‘offences’ are on the Residual
Legislative List, which only a State House of Assembly can
legislate on except those offences that are incidental to the items
contained in both the Exclusive and Concurrent Legislative List,
which the National Assembly has exclusive and overriding coverage
over under the doctrine of covering the field respectively. See:
the case of A.G. Federation v A.G. Lagos State (2013) 16 NWLR (Part
1380) 249 SC.), provides thus ‘Any person who, having a husband or
wife living marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife,
is guilty of a felony, and is liable to imprisonment for seven
years’.
It is important for me here to state that
‘bigamy’ and ‘adultery’ are two different
offences under sections: 384, 387 and 388 of the Penal
Code Act of FCT-Abuja (though bigamy was not specifically
named),
which provide thus ‘387. Whoever,
being a man subject to any native law or custom in which
extra-marital sexual intercourse is recognized as a criminal
offence, has sexual intercourse with a person who is not and whom
he knows or has reason to believe is not his wife, such sexual
intercourse not amounting to the offence of rape, is guilty of the
offence of adultery and shall be punished with imprisonment for a
term which may extend to two years of with fine or with both’.
Section 388 provides thus ‘Whoever, being a woman subject to any
native law or custom in which extra-marital sexual intercourse is
recognized as a criminal offence, has sexual intercourse with a
person who is not and whom he knows or has reason to believe is not
her husband is guilty of the offence of adultery and shall be
punished with imprisonment for a term which may extend to two years
of with fine or with both’.
These two sections of the
Penal Code Act of FCT-Abuja, prohibit and criminalise
(respectively) for a married man or a married woman to
engage in extra-marital relationship or sexual relationship with
another woman or man respectively (where there was no valid
marriage to such person (in the case of a man) as either the man’s
second or third or fourth wife, since a woman is prohibited from
even being married to more than one husband).

Therefore, in the FCT-Abuja, both offence referred to in
section 384 of the Penal Cope Act (as no such offence
is referred to as ‘bigamy’ in the FCT under the Penal Code but the
provisions clearly states what amounts to such an offence of
‘bigamy’) and that of ‘adultery’ are criminal and a Muslim man or a
Muslim woman can therefore be prosecuted for committing ‘adultery’
under the respective sections: 387 and 388 of the Penal
Code.
However, as to the offence under
section 384 of the Penal Code Act (which is referred to
as ‘bigamy’ under section 370 of the Criminal Code Act, 2004
(supra))
, this is not applicable to the Islamic
Family or the Islamic Personal Law or the Islamic Law on Marriage.
This is because, marriage under the Islamic Law is a legal act as
stated in the Holy Quran in Quran 4:3 thus ‘Then marry
(other) women of your choice, two or three, or four; but if you
fear that you shall not be able to deal justly (with them), then
only one or (slaves) what your right hands possess’.

Therefore, this provision of the Holy Quran has overridden the
provisions of section 384 of the Penal Code Act, from
being applicable to Islamic Marriage.
Also, the
superior authority of the Quran in Nigerian Islamic Personal Law
has been upheld even by the Supreme Court of Nigeria. See the cases
of: Alhaji Ila Alkamawa v. Alhaji Hassan Bello & Anor
(1998) LPELR-424(SC) and Usman v. Umaru (1992) 7 NWLR (Pt. 254)
377; (1992) 7 SCNJ (Pt.11) 388 P.400.
I must add that
apart from the fact that ‘adultery’ is
punished in the FCT-Abuja, under section 384 of the
Penal Code with years of imprisonment,
it is a
capital offence under the Islamic Criminal Law (assuming Nigeria is
practising such Islamic criminal law with ‘stone to
death’
as a sentence/punishment on the married couple
concerned). There was a question and a ruling on the question on
islamweb.com which would be supplied here
as it is useful for the purpose of this paper which goes thus

‘Question

A non-Muslim friend asked me how is it possible, in
recent life, to avoid having relations with a girl before the
marriage as long as there are many means to avoid pregnancy or
diseases? I want to convince him the dangers of
Zina.

Answer

All perfect praise be to Allah, The Lord of the
Worlds. I testify that there is none worthy of worship except
Allah, and that Muhammad  sallallaahu  `alayhi 
wa  sallam ( may  Allaah exalt his mention ) is His slave
and Messenger.

Zina (fornication or adultery) is a grave major sin.
It is prohibited in all religions due to fatal diseases such as
AIDS. It does not only bring down Allah’s wrath, but also causes
crimes, generates hatred among people, spoils the chastity of the
person and his/her lineage and so forth. Allah, the Exalted, has
imposed a great punishment on those who commit Zina in this worldly
life and in the Hereafter.

Allah Says (what means): {And those who do not
invoke with Allah another deity or kill the soul which Allah has
forbidden [to be killed], except by right, and do
not commit unlawful sexual intercourse. And whoever should do that
will meet a penalty. Multiplied for him is the punishment on the
Day of Resurrection, and he will abide therein humiliated – Except
for those who repent, believe and do righteous work. For them Allah
will replace their evil deeds with good. And ever is Allah
Forgiving and Merciful.} [Quran 25: 68-70]

On the Night of Israa’ and Mi’raaj, as recorded in
Saheeh Al-Bukhaari, the Prophet  sallallaahu 
`alayhi  wa  sallam ( may  Allaah exalt his mention
) saw naked men and women on a building similar to a furnace, wide
at the bottom and narrow at the top, and a fire kindling from the
bottom. When the fire starts, they cry and come up; when it goes
out, they return to their previous state. When the Prophet 
sallallaahu  `alayhi  wa  sallam ( may  Allaah
exalt his mention ) asked about them, the answer was: ‘They are
those who committed Zina.’ They will be tortured in the same way
till Resurrection.”

Allah warns us against committing Zina as
He Says (what means): {And do not approach unlawful sexual
intercourse. Indeed, it is ever an immorality and is evil as a
way.} [Quran 17:32]

As for the punishment of Zina in the present life,
if it is proved, an unmarried person is to be lashed one hundred
times, and then, the man should be exiled for one year. This should
be carried out by the Muslim ruler. As regards a married person who
commits Zina, he should be stoned till death.

Allah Says (what means): {The [unmarried] woman or
[unmarried] man found guilty of sexual intercourse – lash each one
of them with a hundred lashes, and do not be taken by pity for them
in the religion of Allah, if you should believe in Allah and the
Last Day. And let a group of the believers witness their
punishment.} [Quran 24: 2]

This punishment is for unmarried persons guilty of
the above sin but if married persons commit it, the punishment is
to stone them to death, according to Allah’s Law.

The Prophetic Hadeeth explained the above verse
stating: “One hundred lashes and one year exile for a bachelor and
a married one should be stoned (to death).” [Muslim, At-Tirmithi,
Ibn Maajah]

As for your friend’s saying ‘How can I
endure?’, we clearly state that whoever believes in Allah, the
Final Day, the Reckoning and the punishment, Hellfire and Paradise,
should have patience, fearing Allah and longing for His
reward.

On the other hand, using medical condoms and so on
does not change the Sharee’ah rulings for a believer. But, for a
disbeliever, we are to do our best to convince him of Islam and
belief since there will be no profit to convince him of the dangers
of Zina as long as he is not a believer.

Therefore, dear brother, your first step is to
convince him of Islam and the dangers of disbelief. Then, he –
Allah willing – will automatically believe in the dangers of
Zina.

Allah knows best.’. (Underlining is mine for
emphasis).

From the above question and the answer provided, it is my humble
belief that the laws on fornication and adultery have been catered
for without the need for me to supply further authorities.

Furthermore, and therefore, it is my humble submission that a
Muslim man needs not have a secret marriage with either his second
or third or fourth wife unknown to his wife (or wives) already
married as marriage to more than one wife is permissible in Islam
Family Law. I also humbly submit that
‘adultery’ by a married man or woman
(apart from its being a capital offence under Islamic Criminal Law)
it is a criminal offence under section 384 of the Penal
Code Act of FCT-Abuja and punishable under the said
section.
So, a Muslim man is prohibited from engaging
in extra-marital affairs or sex with a woman or female that he is
not validly married to under Islamic law of Marriage. Also, married
Muslim women must understand that as far as Nigerian Legal System
is concerned, marriage (legal marriage) can be in three
different forms vis-à-vis: marriage conducted under the Marriage
Act; marriage conducted in accordance with the Islamic Law of
Marriage (Personal Law); and marriage conducted under the Customary
laws or tradition.
Any of these three forms of
marriages have the legal backup of the law. Each of them is a form
of legal marriage. A Muslim may choose whichever that he prefers
either based on his religious belief or based on his custom. A
Muslim should know that if he marries under the Marriage Act, there
are consequences which means that it is a union of one man-one wife
(monogamy). Also, if he marries under the
Islamic Law of Marriage, it is a marriage that entitles a man to
marry up to four (4) wives under his control. And marriage under
customs or traditions is governed by its principles. The only thing
that I have observed is that, depending on the custom or tradition,
the man is allowed to marry wives up to an indefinite number so far
he can finance them in the marriage (i.e. under customary law
marriage). So, it remains the best for a Muslim (both male and
female) to sit down and know what type of marriage that he or she
would like to conduct. In any case, any of the three marriages is a
legal marriage and is supported by law (under the Nigerian Legal
System) but as for a Muslim (male or female) the only type of
Marriage recommended for him or her by Almighty Allaah and which in
my humble view is the best for both of them (without any need for
selfishness or jealousy) is the marriage under the Islamic
Law/Islamic Marriage or marriage conducted in line with Islamic Law
of Marriage.

Finally, I humbly submit that the offence under
section 384 of the Penal Code Act (which is referred to
as ‘bigamy’ under section 370 of the Criminal Code Act, 2004
(supra))
, this is not applicable to the Islamic
Family or the Islamic Personal Law or the Islamic Law on Marriage.
This is because, marriage under the Islamic Law is a legal act as
stated in the Holy Quran in Quran 4:3 thus ‘Then marry
(other) women of your choice, two or three, or four; but if you
fear that you shall not be able to deal justly (with them), then
only one or (slaves) what your right hands possess’.

Therefore, this provision of the Holy Quran has overridden the
provisions of section 384 of the Penal Code Act, from
being applicable to Islamic Marriage.

Email: hameed_ajibola@yahoo.com[1]

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