Region: Africa
Year: 2001
Court: Court of Appeals, Kaduna Judicial Division
Health Topics: Sexual and reproductive health
Human Rights: Right to privacy
Under Islamic jurisprudence, a divorced woman is to observe her “iddah,” a mandatory period of three months, before she is eligible to remarry. During this probationary period, her marriage to her ex-husband is considered to be inactive but capable of being revitalized and reconciled. She is obligated to stay in her parents’ house, while her ex-husband is under obligation to see to her upkeep. The appellant had approached the court seeking dissolution of the marriage between his ex-wife and her new husband. His complaint was that his ex-wife had not completely observed her “iddah.” His submission rested on the assumption that for his ex-wife to serve the “iddah” she must have menstruated three times in three months. The woman affirmed on her defense that she had menstruated three times within 2 months and 8 days. But her declaration was doubted. The lower court granted his request and ordered the woman to return to her family house, unmarried.
It is the exclusive prerogative of a woman to say whether she has observed her menses or not. The veracity or proof of it cannot be demanded from her, nor should she be compelled to swear to an oath to assert this. The Court affirmed that issues touching on a woman's private sphere are best determined by her; she should be believed. This accords with fundamental human rights provisions of the 1999 Constitution of the Federal Republic of Nigeria.
"I have considered the case of the parties on this issue. This matter had caught the attention of Islamic authorities to the effect that under Islamic Law when a woman said she has completed her 'Iddah' on the usual time she observed that menstrual period, the Sharia Law says she should be believed without adducement of swearing the oath." Page 9.
"In the circumstance the statement of 1st Respondent before the two lower Courts that she had completed her 3 menstral period within 2 months and eight days instead of 3 months should be believed without advancement of swearing oath since it is a matter concerning her private part and I so hold." Page 9.