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Home > Article > The Sharia Court Judges and Judicial Impunity – Legal Issue on Child Custody

The Sharia Court Judges and Judicial Impunity – Legal Issue on Child Custody

When the presiding officer of the Upper Area Court, Karu, Hon. Abdullah Yusuf Baba remanded me for the second time in Keffi Medium Security Prison in a pure civil matter, I lost absolute confidence in the judicial system of Nigeria, especially the sharia law. My confusion and frustration stem from the fact that judges in the sharia court can easily exploit the invisible line separating the criminal justice from a civil justice in a law court.

The Presiding Officer, Hon. Abdullah Yusuf Baba while executing a previous judgment that was based on an erroneous decision had sternly ordered that I be arrested and remanded for the second time on Thursday 1st November, 2018; the first time he ordered for my arrest and remand being on the 15th October, 2018. Both of these being in the court room while I was present as well as my counsel. In what I can best describe as judicial impunity as I have never been absent during any proceeding; he sent me to Keffi Medium Security Prison on the order that I be brought from the prison on 6th November, 2018 to continue my trial, in a non-criminal matter.

My Counsel, Barrister AbdulGaniyu Shuaibu in a bid to secure my release the following day had to invoke an ‘Order from Above’ from the Sharia Court of Appeal so as to convince Hon. Abdullah Yusuf Baba that his decision was erroneous and so must shift ground.

Eventually, when Hon. Abdullah Yusuf Baba realized the reason, one of which [neither the mother shall be made to suffer harm on her child’s account, nor the father on account of his child]. (Quran 2: 233.), while I should not have been sent to keffi prison in the first place, it took almost the whole day for the registrar of the court to fill the Production Warrant for my release. At a point, Hajia Fadima, the court registered was even confused and had to wait for the prison warder, Mark before filling it the Production Warrant.

What this connivance means was that I was not going to be released on Friday 2nd November, 2018, after the Prison warder, Mark collected N5,000.00k from my brother to expedite action; and again on Saturday 3rd November, 2018 on the premise that I cannot be released on Saturday. I had to spend a whole weekend with a bunch of Boko-haram guys, armed robbers, Rapists, Shiites and EL-Zakzaky disciples, 419ners, and hosts of other petty criminals. I was among the 194 prisoners in keffi prison that weekend!

Hon. Abdullah Yusuf Baba had sternly reaffirmed that his action is based on the erroneous judgment of the past, and so he must be thorough.

Reminisce the matter at hand that is bothered on child-custody and maintenance. the presiding officer then in January 2016, Hon. Ibrahim Usman Walliyyullah in his judgment, granted the custody of my son that is 7 years old to my late ex-wife until the age of ten (10) citing no authority.

Child custody in Sharia law is very clear and should never be a matter of contention.

Some jurists are of the beleive that the custody of a child before the age of two is to be undertaken by the mother (Shahid Awwal, Muhammad b. Makki ʿAmili, Al-Qawaʿid wa al-Fawa’id fi al-Fiqh wa al-Usul wa al-ʿArabiyya, ed. Sayyid ʿAbd al-Hadi Hakim, 2 vols. Maktibat al-Mufid, n.d., 1/395; Miqdad Suyuri, Nadhd al-Qawaʿid al-Fiqhiyya ʿala Madhhab al-Imamiyya, ed. ʿAbdul Latif Kuhkamari, Ayatollah Marʿashi Library, Qum, 1403/1982, 433; Sabziwari, Muhammad Baqir b. Mu’min, Kifayat al-Ahkam, p. 193.), others believe that the custody of the child is upon both parents, even though they are separated (Ibn Fahd Hilli, Al-Muhadhdhab al-Bariʿ, 3/426; also, to learn about its criticism, see: ʿAmili, Sayyid Muhammad, Nihayat al-Maram, 1/466; Tabataba’i, Sayyid ʿAli, Riyadh al-Masa’il, 2/162).

Seeing the mother as more deserving (ahaqq = more rightful) towards her child, these traditions state this priority in respect to breastfeeding (Kulayni, Muhammad b. Yaʿqub, Al-Kafi, 6/103, No. 3 and 41, No. 6 and 44, No. 1; Ibn Babuwayh Qummi, Man la Yahdhuruhu al-Faqih, 3/509, No. 4788; Tamimi, Nuʿman b. Muhammad, Daʿa’im al-Islam, 2/256, No. 976.)

After the age of two (2), in case the parents are divorced and are both alive, there are various views stated by the jurists on the custody of the child in terms of its gender. The most important is the priority of the mother in the custody of a son up to the age of two(2) and a daughter up to the age of seven(7). To prove this as agreed by all jurists (consensus), reference has been made to the reconciliation of the traditions and preference of the traditions denoting seven(7) years of age; (See: Ibn Barraj Trablusi, Qazi ʿAbd al-ʿAziz, Al-Muhadhdhab, 2/262; Muhaqqiq Hilli, Shara’iʿ al-Islam, 2/567; Hilli, Jaʿfar b. Hasan, Al-Mukhtasar al-Nafiʿ, p. 194; Yusufi, Hasan b. Abi Talib, Kashf al-Rumuz, 2/200; ʿAllama Hilli, Tahrir al-Ahkam, 1/247 and 2/43; ʿAllama Hilli, Tabsirat al-Mutiʿallimin, p. 187; Shahid Awwal, Muhammad b. Makki ʿAmili, Al-Lumʿat al-Damishqiyya, p. 176; Fadhil Hindi, Muhammad b. Hasan, Kashf al-Litham, 2/106; ʿAmili, Sayyid Muhammad, Nihayat al-Maram, 1/466; ʿAllama Hilli, Mukhtalaf al-Shiʿa, 7/308; Najafi, Muhammad Hasan, Jawahir, 31/291; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Masalik al-Afham, 8/421-422.)  of course, none of these reasons are sufficient to prove it and the differentiation between a son and a daughter concerning custody does not seem right (See: Bahrani, Yusuf, Al-Hada’iq al-Nadhiraʿ, 25-88; Sabziwari, Muhammad Baqir b. Mu’min, Kifayat al-Ahkam, p. 194; Khwansari, Sayyid Ahmad, Jamiʿ al-Madarikʿ, 4/474; Tabataba’i, Sayyid ʿAli, Riyadh al-Masa’il, 2/162.).

So, the custody of the child, although after being weaned, is the main responsibility of the father; however, the mother is also given the right to undertake this responsibility up to the age of seven (7) if she wishes so irrespective of the child’s gender.(Al-Wafi, 3/207, chapters on wiladat; Jaza’iri, Sayyid ʿAbd Allah, Al-Tuhfat al-Saniyya, p.296; ʿAllama Hilli, Tahrir al-Ahkam, 1/247 and 2/44; Tusi, Abu Jaʿfar Muhammad b. Hasan, Al-Khilaf, 5/131, problem 36; Tusi, Abu Jaʿfar Muhammad b. Hasan, Al-Mabsut, 6/39; Ruhani, Sayyid Muhammad Sadiq, Fiqh al-Sadiq, 22/304)

The best evidence for proving this view is the tradition related by Ayyub b. Nuh, which explicitly states: “The woman is more deserved to [take care of] her child until it reaches seven (7), unless she wishes otherwise.”(bn Babuwayh Qummi, Man la Yahdhuruhu al-Faqih, 3/435, No. 4504.) It is obvious that this statement can constrain the absoluteness of the tradition related by Dawud, the tradition related by Abi al-ʿAbbass and the one related by Fudhayl b. Yasar (Kulayni, Muhammad b. Yaʿqub, Al-Kafi, 6/45, No. 4 and 1; Ibn Babuwayh Qummi, Man la Yahdhuruhu al-Faqih, 3/275, No, 1304.denoting the father’s priority, and regard his right as authorized after the age of seven (7). (Other views have also been brought up in Islamic jurisprudence in this respect, such as: mother’s priority in custody of her child until the latter’s marriage; priority of mother in custody of her son up to the age of two and the daughter up to the age of nine; mother’s priority in the custody of her son until the age of seven and the daughter until the mother gets married; mother’s priority in the custody of her son until maturity and the daughter until she [the daughter] gets married; mother’s priority in the custody of her son until he can eat and dress by himself and the daughter until she gets married; mother’s priority in the custody of her son until the age of two in case there is a clash and until the age of seven in case there is no clash; the preference of leaving the son’s custody to the mother until the age of seven. For more information concerning the reasons for these views and their criticism, see: Al-Muqni, p. 360; ʿAllama Hilli, Mukhtalaf al-Shiʿa, 7/306, 308, and 313; Ibn Fahd Hilli, Ibn Fahd Hilli, Al-Muhadhdhab al-Bariʿ, 3/426-427 and 429; Ibn Barraj Trablusi, Qazi ʿAbd al-ʿAziz, Al-Muhadhdhab, 2/352; Muhaqqiq Hilli, Shara’iʿ al-Islam, 2/567; Hilli, Jaʿfar b. Hasan, Al-Mukhtasar al-Nafiʿ, p. 194; ʿAllama Hilli, Qawaʿid al-Ahkamʿ, 3/102; ʿAllama Hilli, Tahrir al-Ahkam, 2/44; Al-Marasim, p. 166; ʿAl-Muqniʿa, p. 531; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Masalik al-Afham, 8/420; Fadhil Hindi, Muhammad b. Hasan, Kashf al-Litham, 2/106; Najafi, Muhammad Hasan, Jawahir, 31/291; Tabataba’i, Sayyid ʿAli, Riyadh al-Masa’il, Riyadh al-Masa’il, 2/162; Bahrani, Yusuf, Al-Hada’iq al-Nadhira, 25/89; Tusi, Abu Jaʿfar Muhammad b. Hasan, Al-Khilaf, 5/131, issue 35-36; Makki, Muhammad b. Mansur, Al-Sara’ir, 3/653; ʿAmili, Sayyid Muhammad, Nihayat al-Maram, 1/467-468; Sabziwari, Muhammad Baqir b. Mu’min, Kifayat al-Ahkam, p. 194; Tusi, Abu Jaʿfar Muhammad b. Hasan, Al-Mabsut, 6/39; Khwansari, Sayyid Ahmad, Jamiʿ al-Madarik, 4/474.)

In case the mother dies while undertaking the custody of her child (to the age of seven), the responsibility of the child custody will be transferred to the father. (Najafi, Muhammad Hasan, Jawahir al-Kalam fi Sharh Shara’iʿ al-Islam, 31/293.) Since the child custody – as it was said before – is the responsibility of the father and it is transferred to the mother for seven years in case she desires so; therefore, the father has priority over others in his child’s custody. The possibility of transferring this privilege to the child’s maternal grandmother – as Ibn Barraj has asserted – does not sound correct. (Ibn Barraj Trablusi, Qazi ʿAbd al-ʿAziz, Al-Muhadhdhab, 2/353-354 and 318; Fadhil Hindi, Muhammad b. Hasan, Kashf al-Litham, 2/106; Jawahir al-ʿUqud, 2/189.)

However, if the father dies, there is no doubt that the mother would undertake the custody of the child up to the age of seven. However, who should take care of the child after this age?

Some jurists have mentioned the restoration of custody to the mother and have invoked the verse [the blood relatives are more entitled to inherit from one another in the Book of Allah. (Q. 8: 75; 33: 6)] and the verse [neither the mother shall be made to suffer harm on her child’s account, nor the father on account of his child]. (Q. 2: 233.)  The jurists’ consensus (ijmaʿ), Dawud b. Husayn’s tradition, Ibn Sanan’s tradition, the practical principle of continuance (istishab), the mother’s emotional condition, and the very traditions concerning hidhanat(custody) (For more information of how these evidences have been alluded to as well as their criticism, see: Makki, Muhammad b. Mansur, Al-Sara’ir, 2/652; Najafi, Muhammad Hasan, Jawahir, 31/293; Fadhil Hindi, Muhammad b. Hasan, Kashf al-Litham, 2/106-107; Ruhani, Sayyid Muhammad Sadiq, Fiqh al-Sadiq, 22/308-309; Tabataba’i, Sayyid ʿAli, Riyadh al-Masa’il, 2/162; ʿAllama Hilli, Qawaʿid al-Ahkamʿ, 3/102; idem, Irshad al-Adhhan, 2/40; Muhaqqiq Hilli, Shara’iʿ al-Islam, 2/567; Hilli, Jaʿfar b. Hasan, Al-Mukhtasar al-Nafiʿ, p. 194; Ibn Barraj Trablusi, Qazi ʿAbd al-ʿAziz, Al-Muhadhdhab, 2/262; ʿAllama Hilli, Tahrir al-Ahkam, 1/247 and 2/44; Kulayni, Muhammad b. Yaʿqub, Al-Kafi, 6/45, No. 4 and 41, No. 7.).

In contrast, there are some other possibilities brought up such as transfer of the child custody to the father’s wasi (executor of the father’s will), (See: ʿAllama Hilli, Tadhkirat al-Fuqaha, 2/510; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Al-Rawdhat al-Bihiyya, 5/66.) to the paternal grandmother(Al-Muqniʿa, p. 531), and to the paternal grandfather, of which the latter possibility is more likely to be correct by all the reasons presented. (Although in regard to custody, none of the jurists have brought up the above possibility, it is asked in the book of inheritance whether one can after his death hand over his child to a stranger to take care of while the child’s grandfather is still alive. Giving a negative answer to this question, the Shiʿa jurists – contrary to the Sunnis – have brought up some matters from which it can be concluded that the custody of the child after its father’s death rests with its paternal grandfather in case the parents have already divorced and the child is over seven years of age. For more information, see: Tusi, Abu Jaʿfar Muhammad b. Hasan Al-Khilaf, 4/161-162, issue 40-41; idem, Al-Mabsut, 4/54-55 and 6/154-155; ʿAllama Hilli, Tadhkirat al-Fuqaha, 2/586, 510, 460, and 80; Ali Bahr al-ʿUlum, Sayyid Muhammad, Bulghat al-Faqih, 4th edition, Maktabat al-Sadiq, 1403/1984, 4/72-73; Ruhani, Sayyid Muhammad Sadiq, Fiqh al-Sadiq, 20/398; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Masalik al-Afham, 6/144 and 268, and 7/195; ʿAllama Hilli, Mukhtalaf al-Shiʿa, 6/378; Makki, Muhammad b. Mansur, Al-Sara’ir, 3/204; Bahrani, Yusuf, Al-Hada’iq al-Nadhiraʿ, 19/94-95 and 22/16; Muhaqqiq Hilli, Shara’iʿ al-Islam, 2/470 and 506; Ansari, Shaykh Murtadha, Al-Wasaya wa al-Mawarith, 1st edition, Baqiri Publication, Qum, 1415/1995, p. 61; ʿAllama Hilli, Tahrir al-Ahkam, 1/219 and 2/541 and 7 and 7/418; ʿAllama Hilli, Idhah al-Fawa’id, 2/52; Yusufi, Hasan b. Abi Talib, Kashf al-Rumuz, 3/229; ʿAllama Hilli, Tabsirat al-Mutiʿallimin, p. 173; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Al-Rawdhat al-Bihiyya, 5/151; Shahid Thani, Zayn al-Din b. ʿAli ʿAmili, Al-Durus al-Sharʿiyya fi Fiqh al-Imamiyya, 3 vols. 1st edition, al-Nashr al-Islamiyya Publication, Qum, 1412/1991 2/323; Hakim, Sayyid Muhsin, Mustamsik al-ʿUrwat al-Wuthqa, 14 vols. 4th edition, Dar Ihya’ al-Turath al-ʿArabi, Beirut, 1391/1971, 14/593; Najafi, Muhammad Hasan, Jawahir, 28/277.)

On the child maintenance, Hon. Ibrahim Usman Walliyyullah ordered me in the judgment to be paying N10,000.00k, out of N15,076.00k basic salary for the up-keep. Hon. Ibrahim Usman Walliyyullah rely on this verse [Let the man of means spend according to his means and man whose resources are restricted let him spend according to what God has given him]. (Quran 65: 7.), with his eyes closed to the payslip he admitted from me as evidence of my income! I have other 2 children and a wife to cater for, plus I am still paying the said child’s school fees, clothing and other personal effects from this N15,076.00k. I think justice is supposed to be for both parties, justice is not a one way traffic. [DICTUM OF JUSTICE OPUTA – MEANING OF JUSTICE

………..justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant (accused) of a heinous crime of murder; justice for the victim…, ‘whose blood is crying out to heaven for vengeance’ and finally justice for society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.
GODWIN JOSIAH v. THE STATE (1985) 1 NWLR (Part 11) page 125 at 141]

I was a victim of judicial impunity, spending 4 days in a prison. But, mine case is just a tip of the ice-berg compare to the numerous people that had suffered, is suffering as a result of judicial impunity such as in my case. Many people are in prison without justification. The condition of the Nigeria Prisons is a different discussion for another day. I don’t even want to talk about it now.

Judiciary, especially the sharia law courts should put their house in order as many people are looking up to this institution. This would put the sharia law in the right pedestal for the justice for all humanity.

Reference; Child Custody in Islamic Jurisprudence

curled from Rayman’s diary.

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