AN EXAMINATION OF THE CONCEPT OF IJBAR UNDER ISLAMIC FAMILY LAW

Description

ABSTRACT

Under Islamic law, a wali mujbir has an authority to contract the marriage of his virgin daughter even though she does not agree with the marriage. The authority is known as wilayat al-ijbar and quite often described as marriage by compulsion. This paper seeks to examine the concept of ijbar under Islamic law. The discussion will include an analysis of views of Muslim scholars on the issue. The paper will also investigate the practice of the Muslim communities in Nigeria nowadays as regards the theory of ijbar. The examination will be extended to the provisions of Islamic Family Law (Federal Territories) Act 1984 on compulsory. The research will adopt qualitative research where most of the materials will be based in the library. Finally, the research will provide the suggestion for improvement of the application of Islamic law.

TABLE OF CONTENTS

COVER PAGE

TITLE PAGE

APPROVAL PAGE

DEDICATION

ACKNOWLEDGEMENT

ABSTRACT

CHAPTER ONE

INTRODUCTION

• BACKGROUND OF STUDY
• AIM AND OBJECTIVES OF THE STUDY
• SCOPE OF THE STUDY
• SIGNIFICANCE OF THE STUDY
• LIMITATIONS OF THE STUDY

CHAPTER TWO

LITERATURE REVIEW

• REVIEW OF THE STUDY
• MAQASID AL-SHARI’A
• THE CLASSICAL DOCTRINE OF WILAYA

CHAPTER THREE

• THE CONCEPT OF COMPULSION (IJBAR) UNDER ISLAMIC LAW
• IJBAR AND THE ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984
• INCORPORATION OF HANAFI’S VIEW IN THE ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

CHAPTER FOUR

• THE DOCTRINE OF WILAYAT AL-IJBAR
• AL‑WALI AL‑MUJBIR
• THE SUBJECTS OF IJBAR
• TERMINATION OF THE POWER OF LJBAR

CHAPTER FIVE

• CONCLUSION AND RECOMMENDATION

TABLE OF STATUTES

Child Marriage Restraint Act of 1929 

Islamic Family Law (Federal Territories) Act 1984

revision of Islamic Family law in 2000s

Islamic Family Law (Federal Territories) Act 1984, s. 52

Islamic Family Law (Federal Territories) Act 1984, s. 37

The Sources of the Maliki Doctrine of Ijbar, at 218)

ARABIC TERMS AND THEIR MEANING

marriage guardianship (wilayat-un-nikah)

puberty (khiyar-ul-bulugh)

Khul` (Muslim woman’s right to negotiate divorce)

Mata`(economic right of a Muslim divorcee to receive some property)

istiqra’ (inductive search of meaning)

sukut (silence)

ibaha (assumption of permissibility)

Shari’a (the revealed laws in the Qur’an and its explanations in the Sunna)

Fiqh (the schools of law)

classical doctrine (ikhtilaf al-fuqaha)

fatwa (expert opinion)

judgment (hukm)

Maqasid al-Shari’a (objectives of law)

faith (din)

life (nafs)

intellect (‘aql)

family and children (nasl)

property (mal)

Qanun (state legislation and administrative laws)

Guardianship (wilaya)

marriage guardian (wali al-nikah)

aI‑milkiyyat‑al‑ijbariyya (absolute right of ownership)

al-milkiyya al‑ikhtiyariyya (voluntary right of ownership)

absolute legal power (wali mujbir)

virgin (bikr)

CHAPTER ONE

1.0                                                                              INTRODUCTION

1.1      Background of the study

In the present generation, the marriage of minors especially by and among  Muslims is one of the topical legal issues that have attracted the attention of feminists and modern human rights scholars who concern themselves with the protection of the rights of the girl-child across the globe albeit from secular conception.

With this development, national and international communities are therefore increasingly recognizing child marriage as a serious problem, both as a violation of girls‟ human rights and as a  hindrance to key development outcomes [1].

The practice whereby a child is married off early under the influence or compulsion (ijbar) from its parents is somewhat a religious and customary practice among Muslims, particularly those who follow the Maliki school of Islamic law which sanction the role of matrimonial guardian (wali) as one of the essential elements of validity (arkan) to a marriage contract under Islamic law[2].

The matrimonial guardian (wali) may be one with power to enforce marriage on his ward, i.e., wali mujbir, and such a guardian (wali  mujbir) is possessed of the power to compel his ward in entering into a marriage contract for purposes that are viewed as satisfying the best interests of the child in question[3].

vis-à- vis the wishes of parents to ensure that the child is prevented from getting plunged into the dexterities of immorality and its attendant social consequences in the society.

On the other hand,  the critics of the Sharia have likened the concept or practice of Ijbar with forced marriage,  wherein contrary to this perception, mutual consent  of both parties (ridha al-Zawjain) is ever an essential requirement to the formation and validity of a marriage contract under Islamic law[4].

Feminists have, in the name of health, poverty, population, and fertility control together with the quest for the attainment of universal basic education globally with particular attention on the girl-child, the practice of early or child marriage has come to be abominable altogether in the Western society, it being largely a prohibited practice in several countries[5].

In fact, in the slogan of the feminists, it is regarded as a “harmful traditional practice” that impedes the developmental rights of the child.

Thus, the move for the abolition of the so-called child marriage has transcended from Western society to other African and Asian countries and it has deeply crept into the Muslim world.

This was followed later by a law in Egypt that prohibits the registration of marriages of males below eighteen and females below sixteen years of age. In the Indian sub-continent, the Child Marriage Restraint Act of 1929 also prohibited the marriage of males below eighteen and females below fourteen years[6].

In all these pre-modern and reform-minded legislation, one basic thing is observable, that is to say, the crux of the matter is regulation of marriageable age as a legal device to delay marriage. But under classical Islamic family law, the age of the parties bears no legal weight as physical puberty is the basis of the majority and this stance of the law poses a challenge to the modernist and western-oriented Muslims in some Muslim countries[7].

As it becomes open that under sharia, once a child attains puberty, he/she becomes eligible for marriage, to counteract this possibility, modern family law scholars have therefore recognized devising a specified age as an essential qualification for marriage with the eventual prohibition of child marriage under threat of penalty[8].

However, contrary to popular opinion especially in the West, the sharia establishes no specific age to wait for marriage. Islamic law permits a marriage contract of young children to be entered into years before the marriage itself is actually executed or ratified.

ijbar is a concept related to marriage guardianship (wilayat-un-nikah) and it connotes the power entrusted upon parents/guardians to marry off his ward in order to secure the protection of his/her welfare and in instances where it becomes apparent that the parent/guardian acted wrongly or in defiance of the rationale of ijbar, certain safeguards were instituted to cope with the situation[9].

This involves the exercise of the option of puberty (khiyar-ul-bulugh) under which the marriage would be annulled.

Prompted by the raging debate and desire for the urgent need to reform Islamic family law whereby a drastic curtailment or even the abolition of the concept of ijbar vis-à- vis the practice of child marriage is advocated by the West globally, the main objectives of this research work, therefore, is an attempt to critically analyze the contemporary debates for and against child marriage in Islamic law[10].

It is argued that, while puberty marks the legal criteria of Islamic adulthood and in the absence of fixed marriageable age in addition to the exercise of coercive marriage guardianship, the practice of Islamic child marriage goes to secure the welfare of minors and the protection of their best interest in life and in view of this,

it was observed that to prohibit or even restrict Islamic child marriage and the exercise of the role of coercive guardianship,

is to call for the disruption of the moral foundation behind the Islamic institution of the family and at the same time aggressively enforcing western secular family values that delay marriage while paying the least concern on premarital sexual indulgence among teenagers.

Further still, it has been argued that the current move by the international community for the curtailment of ijbar and the abolition of child marriage together with recent reforms directed towards these ends in the Muslim world is nothing but motivated by the western conspiracy against population growth in third world countries, more particularly in the Muslim world[11].

Therefore, the study concludes with the firm recommendation that the Islamic concept of ijbar vis-à-vis the practice of child marriage by Muslims should be accordingly maintained and that as a matter of human right,

Muslims must be allowed sufficient freedom to practice the tenets of their Islamic personal law, in particular, to have recourse to the practice of child marriage where they deem so.

1.2      Aim and objectives of the study

The main aim of this study is to examine of the concept of ijbar under Islamic family law. The study seeks to achieve the following objectives:

1. to examine the theory and concept of ijbar under Islamic law
2. to investigate the practice of the Muslim communities in Nigeria nowadays as regards to marriage by compulsion based on the theory of ijbar

• to make suggestions for improvement of the application of Islamic law

1.3      Scope of the study

The scope of this study covers examining the essential element of Ijar, and indeed the legal basis upon which it rests according to Islamic law. Islam as a complete way of life has a distinct outlook of life. It aims at producing a unique personality in the individual and a distinct culture for the community based on Islamic ideals and values. Effort is made in this research to explain the Islamic concept of ijbar under Islamic law

1.4      Significance of the study

The study will serve as means of having a full knowledge of basis Ijbar under Islamic law. it will also serve as means of making recommendation towards the application of Ijbar in Muslim community.

1.5      Limitation of the study

The Institution marriage and the family occupy a very important position in this scheme of life. It is pertinent to note that marriage forms the basis of an ideal union we consider the concept of guardianship in marriage, as it is one of the features of a valid marriage, it is in line with this concept that this research dwells on the concept or theory of Ijbar under Islamic law.

[1] Abd al-Ati, H. Family Structure in Islam, American Trust Publication (2017) pp. 72-73

[2] Abdul-Rahman Al-Sheha (2017), Women In Islam & Refutation of some Common Misconceptions, Translated by: Abu Salman Deya ud-Deen Eberle Edited by: Abu Ayoub Jerome Boulter Abdurrahman Murad, The Vista, p.94

[3] Abdur-Rahim, M. A. The Principles of Muhammadan Jurisprudence According to the Hanafi, Maliki, Shafii and Hanbali Schools, All Pakistan Law Publishers, pp. 226-339

[4] Abul A‟ala al-Maududi, The Laws of marriage and Divorce in Islam, Islamic Book Publishers, Safat, Kuwait (1983, 1^st ed.) pp. 69-70
Ahmed, K. N. (1978), The Muslim Law of Divorce, Kitab Bhavan, New Delhi, India p. 138

[5] Al-HILLI, Shaikh Abdul Kareem Rida, Al-Ahkaam al-Jaafariyya fil Ahwall-ish- Shakhsiyya, Baghdad Muthanna Library, Cairo, (1947), p. 10

[6] al-Hilali, M. T. and Khan, M. M. Translation of the Meanings of the Noble Qur‟an in the English Language, King Fahd Glorious Qur‟an Printing Complex, Madinah, K.S.A

[7] Ali, Maulana Muhammad (nd) The Religion of Islam, S. Chand & Company Ltd., New Delhi, India, p. 602; Habibi, Syed Ahmad Moinuddin (1975) Lectures on Muslim Law, Allahabad Law Agency, Pakistan, p. 23

[8] Aliyu, I. A. (2000) Marriage under the Sharia: its Position and Objectives, Journal of Islamic and Comparative Law, Vol. 22

[9] Aliyu, I. A. Protection of Women‟s Rights under the Shariah, Dakwah Corner Bookstore, Jeddah, Saudi Arabia (2010, 1^st ed.) pp. 36-40

[10] Al-Jaziri, A. Al-Fiqh ala al-Madhahib al-Arba‟ah, Dar al-Fajir, Cairo, Vol. 3 Al-Sarkhasi, al-Mabsud, Vol. 4, p. 193

[11] Anderson, J.N.D. (2010) Islamic Law in Africa, London, P. 204
An-Nawai‟s Fourty Hadith, translated by Ibrahim, E. and Daview, D. J. (1977) The Holy Qur‟an Publiahing House, Syria, pp. 84-85