TASIU RABIU v. AISHATU AMADU(2002)

TASIU RABIU v. AISHATU AMADU

(2002)LCN/1294(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of November, 2002

CA/K/123/S/92

Justice

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria

Between

TASIU RABIUAppellant(s)

AND

AISHATU AMADURespondent(s)

RATIO

WHETHER OF NOT THE COURTS CAN ANSWER ACADEMIC QUESTIONS

Courts have been enjoined to be loathe in answering academic questions. See Chafe v. Chafe (1996) 6 NWLR (Pt.455) 417, (1996) 6 SCNJ 167 at pages 183-184; Ukejianya v. Uchendu (1950) 13 WACA 45; Oyeneye v. Odughesan (1972) 4 SC 244; B.O.N. v. Maidamisa (1997) 10 NWLR (Pt. 525) 408. PER MUHAMMAD, J.C.A.

THE GENERAL CIRCUMSTANCES GIVING RISE TO PATERNITY AND THE PROCEDURE FOR DISOWNING IT IN ISLAMIC LAW DISPENSATION

T. MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The respondent herein, was the plaintiff at the Area Court No.3, Katsina, Katsina State. The appellant was the defendant. The claim of the plaintiff before the trial court reads as follows:-
“I Aisha, I am suing my husband Tasiu because since I delivered he did not do any thing to me and he also removed my properties and claiming that the child I gave birth to is not his own. So I want to know my stand that was the reason I sue him to court. I also want him to pay me back what I spent when I delivered along with my properties he removed. We got married in the Islamic month of Zul-Hajj. Moreover, he had received his properties that he brought to me for the marriage but all my belongings which I took to my house he removed half of them. Also, I spent only two months in his house he divorced me, therefore I delivered 4 months ago now I spent 2 months in his house while I spent 2 months in my parents house totalled 4 months.”
The trial court wanted to know from the plaintiff how many months did she spend before she delivered her baby. The plaintiff replied:-
“I spent 8 months from the time the marriage was contracted to the time I delivered.”
The trial court then asked the defendant whether the allegation made against him was true?. The defendant, in a long story, which I may have recourse to quote in extenso, at the appropriate time, denied the allegation in its totality. In categoric terms, the court asked the defendant:-
“Is the child delivered belong to you?”
The defendant replied:-
“It is not my own because I never have sexual intercourse with her.”
The trial court summoned plaintiff’s mother and took her statement.
The plaintiff later produced one witness to confirm to the court the actual date of her delivery. The defendant did not like to bring any witness to confirm the date of plaintiff’s delivery. After having considered the statements made by the parties and that of the single witness, the trial court Judge delivered his judgment wherein he gave paternity of the baby born by the plaintiff to the defendant.
Dissatisfied with the trial court’s judgment, the defendant filed an appeal before the Upper Area Court 1, Katsina (hereinafter referred to as “UAC”). The grounds of appeal stated by the appellant before that court were couched as follows:-
“My grounds of appeal are that I stated my reasons that the pregnancy is not my own, because Doctors at the Hospital knew that she was pregnant and even her parents wanted me to have the pregnancy aborted but I refused. She also mentioned the people who pregnated her and also I never have sexual intercourse with her and I was not asked to produce any witness while Aisha brought her witnesses those witnessed the wedding Fatiha not the date she delivered it was only (sic) her mother we were asked to performed (sic) ablution in order to undertake oath but none of us undertook the oath, the Judge went ahead and passed his judgment where he confirmed the ownership of the pregnancy to me whereby as I see it Islamically as not belong to me.”
After reviewing the record of the trial court, the UAC Judge allowed the appellant to call his witnesses which he claimed the trial court did not afford him to do. At the end of hearing the appeal, the UAC Judge affirmed the decision of the trial court.
Aggrieved further, the appellant appealed to the Sharia Court of Appeal, Katsina (lower court). Appellant’s grounds of appeal at the lower court were as follows:-
“1. I informed the court that I have never had sexual intercourse with my wife in the 42 days she spent in my house I realised that she was pregnant.
2. It was within 46 days with the marriaged contracted (sic) and the time I took her back home when I realised she was pregnant.
3. At Kaduna, I took her to hospital which I have a report from the doctor indicating that her pregnancy was between 20 – 22 weeks old at that material time she spent only 6 weeks in my house.
4. When I brought her back to her parents house, I informed them she was pregnant for over 20 weeks within the 43 days the marriage was contracted even if we had a sexual intercourse the number of days of the pregnancy as far exceed (sic) the number of days of the marriage contract.”
After hearing additional information from the parties, the lower court reviewed the record of the case placed before it. In its judgment, the lower court affirmed the decision of UAC.
The appellant was again dissatisfied and he appealed to this court. After filing his (self-drafted grounds of appeal), the appellant engaged the services of a counsel. The learned counsel for the appellant filed his brief of argument on behalf of the appellant.
On the hearing date of the appeal, learned counsel for the appellant adopted and relied on his brief (filed on 15/4/94). He had nothing more to add and urged the court to allow the appeal.
The respondent was represented by one Ahmadu Umaru (her father). The respondent adopted and relied on the submissions she made at the courts below as contained in the record of proceeding.
There was nothing new to be added but urged the court to dismiss the appeal.
In his 11/2 page brief learned counsel for the appellant formulated the following two issues:-
“(a) Were the lower courts right to refuse to act on the medical report that as at 15th February, 1991, the respondent was 20 – 22 weeks pregnant?.
(b) Is there any time limit or prescribed procedure for ‘LIAN’.”
In his submission on the first issue, learned counsel for the appellant stated that under Islamic law medical report is relevant to show that at the time the respondent got married to the appellant she was already pregnant and that the issue is not whether she gave birth within the prescribed period, but whether the pregnancy belonged to the appellant.
The marriage, as at the date of the medical examination and issuance of the medical report on 15th February, 1991, was only 45 days and the pregnancy was certified to be 20 – 22 weeks old.
On the second issue, learned counsel for the appellant argued that even though the appellant was not the one who took the matter to the court, the moment the appellant raised the issue of ownership of the pregnancy, LIAN could be invoked by the Area Court, Upper Area Court or the Sharia Court of Appeal. Learned counsel concluded that LIAN could be invoked at any stage. He urged this court to allow the appeal.
In treating this matter, which from all intents and purposes is very important, no much industry I must say, has been put by learned counsel for the appellant. Paternity of a child under Sharia, is as important as life itself, if not more. This is because it affects the life span, status and style of the child in question. It makes the child in the eyes of the public either great, respectable and honourable or as the case may be, low and disgraceful. The yoke of illegitimacy continues to haunt him. He suffers psychological debasement in the society for no fault of his. Paternity is an inalienable right of the child as every child must have a father, and one father only. It is also a right of God and no parent shall be allowed by the law to disown a child who belongs to him legitimately except where he has legally disowned the paternity through the process of LIAN i.e. mutual imprecation. It is because of its (legitimacy) weight that is why the Prophet (PBUH) once said:-
“A woman who misplaces a child’s legitimacy by relating its descent to some one who is not responsible for its conception has committed a grave offence, alienated herself from God, and will be denied the bliss of eternity. Likewise, a father who obscures his child’s legitimacy by denying his responsibility for its conception has offended God and inflicted upon himself universal disgrace.”

I think it is necessary to comment first and foremost on the general circumstances giving rise to paternity and the procedure for disowning it in Islamic law dispensation. Paternity comes about through any of the following three ways:- (1) Marriage (2) Acknowledgement and (3) Evidence. I may not be disposed to discuss the above three ways of paternity in any material length in this judgment for obvious reasons. It must however be appreciated that marriage is the basis from which family relations stem. If a child is begotten outside wedlock, it is not considered legitimate and the Sharia legal system does not attach it to that man who may have had an affair with its mother. But if the illicit relationship is established the matter now shifts to the realm of Islamic Criminal Law and Procedure for appropriate sanctions on the parties involved. The famous Hadith of the Prophet (PBUH) states:-
Translation:-
Legitimacy of the child is in wedlock.
The adulterer shall have stones against him only.
See Hadith credited to Aisha (wife of the Prophet) reported by the five reporters, quoted by M. A. Nasif, in his book; Al-Taju Al-Jamiu Lil Usuli Fi Ahadith Al-Rasul (SAW), 1961, 3rd Edition, Ihyau Al -Turath Al-Arabi (publishers) Beirut, Lebanon, page 350. Thus, Sharia recognises legitimacy in wed-lock. The author of the book referred to above, commented on this principle of law as follows:-
Translation:-
A child born through the process of adultery cannot be attached to the adulterer but to his (child’s) mother if she is not under serfdom.
Where she is a slave, the child is attached to her master.
See: Al- Taju Al-Jamiu (supra); Al-Kashnawis Badru Al-Zaujaini page 229.
Even where a child is born in wedlock, the delivery must have been within the generally acceptable periods of gestation i.e. the minimum or maximum. The general understanding of majority of jurists is that a period of six months less five days after consummation of the marriage or possibility of consummation of marriage is regarded to be the minimum period of gestation. Imams Maliki, Shafie and Ibn Hanbal agreed to this view. Imam Abu Hanifah, on the other hand, considers the child legitimate six months after the conclusion of the marriage contract not necessarily consummation of the marriage.
See: Al-Dasuqi: Hashiyat Al-Dasuqi ‘Ala Al-Sharlz Al-Kabir, vol. 2, page 459, Ibn Rushd’s Bidayat Al-Mujlahid Wa’ Nihayal Al Muqtasid, vol. 2, page 358. As for the maximum period of gestation, there is no consensus among the generality of jurists. Even among the Maliki jurists for instance, some are of the view that a child can remain in its mother’s womb for a period of five years.
Others such as Muhammad Ibn Abd Al-Hakam opined that a child does not remain in its mother’s womb for more than one year.
The Hanafi jurists hold the view that a child may remain in it’s mothers womb for two years. The Zahiri School (most liberal school) holds the view that a child may remain in it’s mothers womb for only nine months. See: Bidayal Al-Mujtahid (supra) page 358. It follows therefore, that where a child is born, though in a legal wedlock, but under a period of six lunar months less five days, from the date of marriage then the child cannot be attached to that husband.
It is stated in the Jawa Hir Al-Iklil:
Translation:-
Under no circumstance shall pregnancy or child (of the marriage) be denied except where the wife delivers complete baby within a period lesser than six months five or six days less, from the date of the marriage contract.
In that situation paternity can be denied without the necessity of having recourse to LIAN (mutual imprecation) as there exists a legal barrier (between the child and its suspected father).
See: page 381 of vol. one of the Jawahir Al-Iklil (supra).

Thus, for the purposes of Islamic law, paternity is presumed where:-
a) A marriage contract exists between the spouses either De jure or De facto.
b) There is actual consummation or possibility of consummation between the spouses without any legal hindrance. This includes seclusion between the husband and wife (khalwah); sleeping together (mabeet); letting loose the curtain (irkhaus-sutuur) etc.
c) The child is born within the minimum or maximum period of gestation.
d) There is no legal denial, LIAN (mutual imprecation) by the spouses.
The principal issue involved in this appeal is rested upon the claim that the child delivered by the respondent was delivered within a period under the minimum gestation period and that medical report confirmed that. I shall come back to the issue of medical report and its probative value in due course. Let me however recapitulate the episode, leaning more on what the appellant said in course of his explanations and the evidence he called as contained in the record of appeal before this court. Even though he was the defendant at the trial court, the burden to prove his allegation that he did not have sexual intercourse with his wife squarely rested upon his shoulder as this assertion now turns him to be a plaintiff.The Prophet (PBUH) has laid down the principle:-
Translation: –
Burden of proof is on the one who alleges (plaintiff).
Oath is on the (denier) defendant. (Hadith of the Prophet SAW)
Another method of proof to entitle him disown the child is if he subscribes to the oath of LIAN (mutual imprecation) that the child was not his own and he suspected the wife to have had illicit relations with other men. (See: Quran Chp. 24:6. Ahadith Nos. 1155 and 1156 in Muwatta Imam Maliki, translated into English by Rahimuddin). At the end of the LIAN (oath), the spouses shall separate themselves permanently.
Translation:-
Separation (divorce) occurs between the two (i.e. spouses) at the end of the oath without the necessity of the Judge making an order.
(See: Tabsiratu Al-Hukkami vol. 1, page 275; see also Badrul Zawjaini, page 207).
The child shall thenceforth, remain the sole responsibility of its mother. The author of Badrul-Zaujaini  quoted Malikis Muwattah as follows:-
Translation: –
It is reported from Nafiu, from Abdullahi bn. Umar that a man imprecated his wife (through LIAN) during the period of the Prophet (PBUH). He ran away from the wife’s child. The Prophet (PBUH) separated them and the child was attributed to the woman. (See: page 207 of Badru Al-Zaujaini
One of the grounds of appeal filed by the appellant at the Upper Area Court was that the trial court did not allow him to call evidence. The Upper Area Court remedied that and permitted him to call the witnesses he required which he, in fact, did. The Upper Area Court affirmed the trial courts’ decision. This shows that the UAC did not find any merit in the evidence produced by the appellant.
At the lower court one of the grounds of appeal was that appellant never had sexual intercourse with the respondent through out the 42 days period they spent together. The lower court’s finding on that issue aptly answered appellant’s contention. Below is what the lower court found:-
“There is nothing to relied (sic) on that he did not (sic) any sexual intercourse with her.”
The findings of both the upper and lower courts were, in my view, cogent enough to have settled the issue of whether the child born by the respondent was conceived by her within the minimum period of gestation as a result of her marital relationship with the appellant. It is foolhardy, and I think immoral, illegal, despicable, shameful and incredible, under Sharia dispensation for a person (husband) who has contracted a marriage between himself and a woman (wife) and she, having spent the required minimum period of gestation in his wedlock and without him proving his inability to cohabit with her or subscribes to LIAN procedure, will not turn round to disown the pregnancy conceived or child born within that period of time. Sharia will certainly not allow that kind of cheap scape-goatism or abdication of responsibility. In Islamic Law, no one shall bear the responsibility of another (See: Quran 6: 164; 17:15; 35: 18). Even if it is for argument’s sake, the appellant should note that even where it is proved that the wife, so long as she remains in his marital tie, misbehaved herself and went out to have sexual intercourse with another person, he (the husband) and on one else, shall own the child and bear it’s responsibility. It is stated in the Badru Al-Zaujaini (supra).
Translation:-
Where a person commits adultery with a married wife with her consent and she conceives, a verdict of HADD punishment is necessary where both or one of them is married if all the preceding conditions (as discussed in the chapter of mutual imprecation) are complied with.
Then the child will be attributed to the husband of the wife. Even where (the lady) has no husband, the child cannot be attributed to the adulterer who must under go the punishment of HADD, where he is not the slave-master of the lady and there are no doubtful circumstances to ward off the Hadd punishment.
See: page 229 of the book and also: Al-Taju Al-Jamiu (supra) page 350, author’s comments in foot notes.
Now, coming back to the issue of medical report or what is generally regarded as Expert’s Evidence or opinion. J consider it pertinent to cast a general bird’s eye view on it in order to facilitate the understanding of the position of Sharia on the subject matter. Expert’s evidence/opinion is referred to as (Al-Shahadatu bil Qafah).
It is the testimony/opinion which is given in relation to some scientific, technical or professional matter by experts i.e. persons qualified to speak with some amount of authority by reason of their special training, skill, mastery or familiarity with the subject matter in question. It assists the Judge to determine a fact in issue. A witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.
The Quran has given due recognition to expert opinion and it states:-
“We granted inspiration: if ye realise this not ask of those who have knowledge.” See: Quran: 16:43.
There are a plethora of Ahadith (traditions) of the Prophet (PBUH) which recognize expert’s evidence.
We will be content to quote only one. It has been related on the authority of Aisha (wife of the Prophet) who said that one day the Prophet (PBUH) came to her and said in a light mood:
“Oh Aisha, don’t you see that Mujazzaz Al-Mudlaji came and saw Usamah and Zaid, lying, being covered with a sheet in a position that their heads were covered but their legs were uncovered, and said, these legs are from one another” Mujazzaz Al-Mudlaji was an expert on lineages. Caliph Umar bn. Al-Khattab, practically introduced the testimony of experts in suits involving questions of techniques. Those who followed the companions (Tabiun) such as Zaid bn. Al-Musayyib, Al-Zuhri, Qatada etc. and from their students too, such as Al-Lith bn. Saad, Malik bn. Anas and his companions, all recognised and  relied on the evidence of experts whenever it was necessary. It is thus difficult to say in general terms that medical evidence or opinion of experts is inadmissible in evidence in Islamic Law.
However, it can safely be said that jurists are not unanimous in their views as to the application of expert opinion on some matters. Please refer to Ibn Qayyims Al-Turaq Al-Hukumiyyah Fi Assiyasah Assh Ariyyah, (1996), first edition; Maktabat Al-Tijariyyah publishers;  Makkah Al-Mukarramah pages 255-278; Ibn Farhuns Tabsisratu Al-Hukkami Fi Usuli Al-Aqdhiyati Wa Manahiji Al-Ahkam (1995) first edition; Dar Al-Kutub Al-Alamiyya publishers, Beirut, Lebanon, vol. 2 pages 99-101.
The argument of learned counsel for the appellant is that even under Islamic Law the medical report is relevant to show that at the time the respondent got married to the appellant she was already pregnant. That at the time and date of the examination and issuance of the medical report on 15th February, 1991, the marriage was only 45 days and the pregnancy was certified to be 20 – 22 weeks old.
The verbatim account of how the appellant came up with what he regarded as medical report is as follows:-
“I took her to hospital at Kaduna where they examined her and found out that she got five months pregnancy while she spent only 45 days in my house. I collected the report from the doctor for record purposes, I got worried at that material time I spent (sent) her to Katsina and informed her parents her condition at that juncture her father asked me to wait till tomorrow as to go to hospital together; when I came in the morning her father told me that he won’t go but he accompanied me with Umma to go to Katsina General Hospital with her where she was examined and found that she was pregnant, and we were directed to go to Dr. Bello Sada Clinic situated along Kofar Kwaya Road, Katsina, this was done in the month of February, 1991 they also examined her that she was pregnant, from Dr. Bello Sada’s Clinic they directed us to go to Okmos Clinic as they use to abort pregnancy there. I paid N20.00 for the test, there at Okmos Clinic a file was opened for her, Aisha and her mother entered Doctor’s office when the doctor examined her, he found that she has 7 months pregnancy, from there I came back home as to know the way we are going to solve the issue somebody was telling us that his daughter was once got pregnant and she was taken to Ajiwa and the pregnancy was aborted.
He then said let Aisha be taken to Ajiwa while some said let us go back to Okmos Clinic in order to abort the pregnancy, there they told us if the abortion be made there is a possibility of her to die, instantly. At that juncture, I went where I gave the N300.00 her mother was asking me when should I bring her belongings, I told her anytime I came back, it was on my way back they were telling me that the pregnancy is not my own.”
Of all the witnesses called by the appellant at the Upper Area Court, it appeared, none of them could give better account of the medical report apart from what the appellant informed them. The UAC received documents in respect of the medical examination after the evidence of Alhaji Rabiu (PW1). The UAC notes as follows:
“Court received the documents. The first document was a card from Okmos Clinic on which Aisha’s name was written dated 16/2/91 then Lumane Clinic also dated 16/2/91 when was written POP=IH=20/52, Urin-preg-nancy-positive, then another document from Haske Clinic dated 15/2/91 which someone name was cancelled and replaced with Aisha Ahmed name that they examined her and found she was pregnant 20-22 weeks.”
Unfortunately, the UAC made no reference to the medical report in its judgment. But in its findings, the  trial court did observe, on the issue of medical report, as follows:-
“The defendant Tasiu refused the ownership of the baby child delivered by Aisha, he brought her back home to Katsina and divorced her, he informed the court that he took (her) to hospital (for) several times and she was examined by different doctors who(m) confirmed to him that she was pregnant, which he relied on. What this court observed here the court of the first instance ignored the investigation and report made by the medical doctors where the court refused to relied (sic) on as Islamic Law does not allowed (sic) to use doctors report at any how. With regard to this lets drop the doctors report and rely on what Islamic Law said.” (page 4 of the record).
The lower court, Coram; Hon. Kadi Isa Mohammed Dodo and Hon. Kadi Suleiman Mohammed Daura did not advert its mind to the issue of medical report, even though it formed one of the grounds of appeal filed by the appellant.
The position of the law as is understood by the Maliki School of Jurisprudence, which remains largely in vogue in this part of the country (see section 2 of the Sharia Court of Appeal Law, Cap. 122, Laws of Northern Nigeria, 1963) and under whose principles this matter was decided by the lower courts, vis-a-vis, medical report in determining paternity, is considered unreliable. It is stated in the Tabsiratu Al-Hukkam, vol. 11, page 100.
Translation:-
The popular view is that the opinion of an expert cannot be relied upon to ascertain paternity in relation to the children of a free woman but (same can be relied upon) to establish paternity in case of children of a slave woman, whose two masters had intercourse with her in one and the period of purity.
A little further on the same page of the book under reference, it is stated:-
Translation:-
The child of a free woman cannot be disowned except by LIAN i.e. mutual imprecation. The child of a slave woman can however be disowned without taking the LIAN oath of mutual imprecation. Disowning a child by relying upon the opinion of physiognomist is purely based on IJTIHAD i.e. exertion of one’s mind. It follows therefore that there cannot be reliance upon something known to be pure exertion of the mind (ijtihad) in disowning a child.
In the instant appeal, there was no claim that the respondent was a slave, there was therefore, no need for any test to establish paternity.In any event, the time when the marriage contract was concluded between the parties was established to be the 20/12/90.
It was found by the trial court, the UAC and the lower court that the respondent delivered on 5/7/91. The period between the two dates above covered 6 months and 15 days. This is something practical which in no way required any physiognomic analysis. Since it was a delivery within wedlock and within the lawful period of gestation, the matter must be taken as finally settled by the prophetic tradition that legitimacy of the child is in wedlock and the adulterer shall have stones against him only. Again, the medical examination showed that as at the 15th of February, 1991, the respondent was 20-22 weeks pregnancy. By that time, the respondent was already a wife to the appellant for almost two months. The appellant did not tender any evidence that he never had any sexual intercourse with the respondent. It is thus difficult to believe him. I think it was too late in the day for the appellant to raise an alarm when the law presumed that he had sexual intercourse with the wife. It is pertinent to state, though in passing that Islam has allowed courtship so that the suitors will have full understanding and examination of each other in order to avoid all unpleasant consequences after conclusion of the marriage. It is for both to make deep inquiries on the mode of life of one another before assenting to be united as husband and wife. Certainly, without concrete and valid evidence to substantiate any allegation of misbehaviour levied against any of the spouses, there shall be no remedy, than to own-up any short-coming or misbehaviours found in the partners. In my opinion, the “lower courts” were quite correct to refuse to act on the medical report in question. This answers issue number (a).
On issue No. (b) which questions whether there is any time limit or prescribed procedure for LIAN. It is my observation that throughout the four walls of the record of appeal placed before this court, there has never been raised before any of the courts below any claim relating to LIAN. I would have answered the 2 points raised on the issue. But, answering them will mean labouring on academic issues. Courts have been enjoined to be loathe in answering academic questions. See Chafe v. Chafe (1996) 6 NWLR (Pt.455) 417, (1996) 6 SCNJ 167 at pages 183-184; Ukejianya v. Uchendu (1950) 13 WACA 45; Oyeneye v. Odughesan (1972) 4 SC 244; B.O.N. v. Maidamisa (1997) 10 NWLR (Pt. 525) 408.
In conclusion, I find no merit in this appeal. The appeal is hereby dismissed. Looking at the nature of the appeal, I make no order as to costs.

MOHAMMED, J.C.A.: I have had the opportunity before today of reading the judgment of my learned brother Ibrahim Tanko Muhammad, JCA, which has just been delivered. I entirely agree with the reasoning and the conclusion arrived at by my learned brother in resolving the two issues arising for determination in this appeal.
The undisputed facts of this case from the side of the appellant himself are that he was married to the respondent at Katsina on 29/12/90 or 30/12/90. The appellant came to Katsina on 3/1/91 and took the respondent to his house in Kaduna. The married couple stayed together in the house of the appellant until 15/2/91 when he brought her back to Katsina over the dispute on her pregnancy.
Therefore, on the assertion of the appellant himself, it is quite clear that the appellant and the respondent had co-habitated as husband and wife at least for period between 3/1/91 and 15/2/91 which is 42 days. It is also not in dispute between the parties that it was during this period of 42 days co-habitation between the appellant and the respondent as wife and husband that the pregnancy of the respondent was discovered by the appellant. In other words, the pregnancy of the respondent was discovered during or within the period when the respondent was lawfully and validly married to the appellant.
Under the Sharia, a child conceived in lawful and valid wedlock is a legitimate child of a man so lawfully and validly married to its mother. This is because under the Sharia, the legitimacy of a child is proved by the proof of the existence of a lawful and valid marriage between the parents at the time of the child’s conception.
There is no doubt that the natural outcome of any marriage is procreation and such children cement the relationship between the married partners. It is marriage that also brings about legitimate children.
This is the reason why Islam prohibits ZINA or fornication and marriage is made a strong SUNNAH. The children born during the existence of a valid marriage bear the name of the father as the Hadith of the Prophet Muhammad (SAW) states:-
“The child belongs to one on whose bed it is born.”
In no circumstances therefore should a husband, like the appellant in the present case, deny the fatherhood of his child going by the above quoted Hadith. Thus, having co-habited with the respondent in his house for 42 days before the discovery of the respondent’s pregnancy, the appellant’s claim that he had never had any sexual intercourse with the respondent is not admissible under the Sharia.
For the foregoing reasons and fuller reasons contained in the lead judgment, I hold that the appellant has no basis whatsoever under the Sharia to deny the paternity of the child delivered by the respondent. Accordingly, I also dismiss this appeal without any order on costs.

MUNTAKA-COOMASSIE, J.C.A.: I have had a preview of the lead judgment prepared and delivered by my learned brother, I. T. Muhammad, JCA. I entirely agree that the appeal is devoid of merit and that it should be dismissed.
I have seen clearly that the paternity of the child is put in question by the attitude of the appellant herein. There is no doubt that considering the facts and evidence before the lower courts that a valid marriage was conducted by the couple under Islamic Law.
Throughout the proceedings, it was not suggested that there is evidence that the wife was pregnant before the marriage took place.
The marriage (Nikah) was presumed to be validly conducted.
The appellant denied having consummated the marriage while the wife maintained that their marriage was consummated. In such a situation, the law will be at the side of the woman. See Dirdir Commentary on Tuhfatul Hukkam.
There is no doubt that there was the drawing of the curtain Isbalul sitr – or mabeet i.e. cohabitation agreed even by the appellant.
In such circumstance the law presumes, even though rebuttable presumption that the marriage has been consummated.
The husband/appellant cannot lawfully deny the fact that sexual intercourse has taken place. As far as I am concerned, what caused the problem in this appeal is ignorance of the position of Islamic Law on the point. What is the minimum period of gestation. Is it six months after the presumed consummation of the marriage or five months twenty-five days? It is a highly technical and difficult area. Even among the Judges because the learned jurists from various schools have not settled on that. Imam Maliki and his disciples in their school agreed that the minimum period of gestation is five months twenty-five days after the consummation of the marriage.
Others say it is six months. The issue of maximum appeared not be settled. There are many jurisprudential arguments on that point.
Since we are not at the moment considering the maximum period of gestation, it will be an academic exercise to delve into it. Suffice it to say in an appropriate real and live issue one can adopt the theory of TALFIQ – wide choice of principles – and chose and apply a particular principle to arrive at a just conclusion.
My Lord Justice Mohammad, left no stone unturned and came up with the correct principles concerning this matter. I will only state that the principles of law applied by him are quite unassailable.
As far as I am concerned, there is consummation of the marriage between the couple and the child was born within the minimum period of gestation (i.e. more than six months).

Meaning
Five years is the maximum period of gestation while six months is the minimum.
Since there is valid marriage in accordance with the Islamic Law dictates, the child can never be made illegitimate. See p. 232 of Badrul Zaujaini by Kusadawi.
I do not want to go deep in the consideration of my learned brother, on whether or not medical opinion is admissible in Islamic Law. There was semblance of it since the time of Jahiliyya – period before the coming of the Prophet Muhammad (P.U.H). But my understanding of their role was that it was not reliable considering the attitude of the 2nd Caliph Umar when he consulted the JAHILIYYA WOMEN and sometimes he consulted QAIF. I am not myself convinced that there is clear authority to say that Al-Qaif or Al-Qawaif has any scientific knowledge. We cannot safely conclude that Al-Qaif will take the position of medical doctors known in modern times. They are not also Addabibi or Addiba – medical doctors. I will therefore agree with his Lordship, that one can not say that Islamic Law accepts medical report as a good and admissible evidence. I refer to the issue of Qaif to pages 229-231 of Badrul Zaujaini by Abubakarba Hassan Kusadawi.
However, it is settled that where there is a system, principle or jurisprudential analysis, it is permitted in Islamic Law provided it does not offend any principle of Islamic Law. It was narrated that Prophet Muhammad (PBUH) has stated that:
What I mean is that if medical report is prepared by a Moslem or any of the any of the trusted Jews or Christians based on the field of medicine then one can accept it, and use it by the authority of the Hadith – supra. This is not a proper place to have in depth research on this point. Otherwise one could juxtapose different authorities on the point. More so, when I am only contributing to the lead judgment, my fear is that one will be, unwittingly, writing thesis.
With this little contribution and for the more detailed and elaborate reasons adumbrated in the lead judgment, I hold that the appeal is dismissed as it lacks merits.
I endorse all the consequential orders made therein. No order as to costs.

Appeal dismissed.
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Appearances

Yayha Mahmood, Esq.For Appellant

AND

Respondent absentFor Respondent