Customary Law Which Demands Return Of Bride Price Before Divorce, Repugnant To Natural Justice- Court
The Upper Customary Court, Kafanchan judicial division sitting at Gwantu has declared as repugnant to Natural Justice, Equity and good conscience, the Mada marriage custom requiring a departing wife to refund her husband’s dowry and other incidental expenses for her marriage as a ground for granting her divorce.
In a land mark Judgment delivered by His Worship, Emmanuel J. Samaila, the court condemned the practice that reduces women married under customary law to the status of mere chattels acquired by men to be used and dumped at their pleasure and with effrontery as repugnant.
The Petitioner had “contended that the only ground upon which she will make such refund is if the respondent can restore her body to its pre-marital state as he has used her body to produce children and in other ways, too.”
According to the court “It is indisputable that the parties have been married for about 31 years prior to the institution of this petition. Even though there was no direct evidence of the year of their separation, it appears to be a not too distant incident. It is also not contended by the respondent that during the period the petitioner lived with him as a wife, she was not submissive to him or failed to perform all her marital duties or fulfill her marital obligations. It was not contended by the respondent that the petitioner did not take care of him and his household and his properties while they were living together. There is also no contention by the respondent that the petitioner never helped him with his farming activities. The respondent never told the Court that the petitioner failed to respect his conjugal rights while they lived together or that she is not the mother of his five (5) children, three of whom are still alive. In the absence of any evidence that the petitioner has ever failed to fulfill all her marital obligations as a spouse, mother, housekeeper and homemaker during the period of about 30 years the parties lived together prior to their separation and the institution of this matter, would it be equitable and in good conscience to require her to refund to the respondent the sum he expended to perform her marriage rites under Mada marriage custom as a pre-condition for the success of her petition for the dissolution of their marriage?
The Court noted that “If the respondent were to pay for all the services rendered by the petitioner and the performance of her conjugal duties for over 30 years, would the token he paid as her dowry and incidental expenses be sufficient? Our answer is an unqualified and an unequivocal “No”.
Proceeding the Court said “This Court will not imprint its hallowed seal on any custom the enforcement of which will denigrate the women married under customary law and effectively reduce them to the status of mere chattels acquired by men to be used and dumped at their pleasure and with effrontery, require a woman, such as the petitioner in the instant case, to refund to her estranged spouse the token he paid as her dowry and incidental expenses; a woman who deserves commendation for choosing and daring to walk away in peace, with dignity, without physical hurt and alive from a union to which she has sacrificially committed over 30 years of her youthful and productive life. Without further ado, the first question for determination is answered in the negative.
The Mada marriage custom requiring a woman who leaves her matrimonial home, especially after over 30 years of marriage, to refund the expenses incurred by her husband for the performance of her marriage rites is hereby declared repugnant to natural justice, equity and good conscience. Consequently, we hold that the petitioner is not under any moral or legal obligation to refund to the respondent any money expended for the performance of her marriage rites as a pre-condition for the grant of an order dissolving her marriage with the respondent.”