Department of Islamic Law
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Browsing Department of Islamic Law by Author "AbdulWahab Mhammad Jamiu ELESIN"
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- ItemAnalysis of Misconception of Nature of Dissolution of Nikāḥ at the Instance of Wife under Islamic Family Law(Kwasu Law Journal (KWASULJ), 2021) AbdulWahab Mhammad Jamiu ELESINApart from death, wedlock (nikāḥ) may come to an end through separation which also takes different methods under Islamic family law such as separation by way of consent between the parties (khulʻu) otherwise known as “dissolution of marriage at instance of the wife”. However, reading through some court decisions, it is observed that true nature of khulʻu is misconceived. Identifying nature of khulʻu therefore becomes significantly momentous as it guides the courts, legal practitioners, lecturers, students of law as well as other stakeholders in drawing legal opinion or decision. The paper reviewed opinions of major schools of fiqh as well as judicial decisions on the subject matter of study. The research consulted Qur’ān, Sunnah, fiqh manuals, tafsīr books and academic literature. Research findings revealed that, confusion within Muslims occurs in the mix-up of true nature of khulʻu. The recommended that experts in Islamic family law review opinions of the jurists on the subject
- ItemAppraisal of Misconception of Retirement of Wife (Istibdāluz-Zawjah) and Incorrectly Practice Ware under Islamic Family Law(Al-Hikmah University Journal of Islamic Law (HUJIL), 2021) AbdulWahab Mhammad Jamiu ELESINMarriage and divorce are parts of the natural identity of human beings that has been given ample attention within socio-cultural, religious and political studies. The position of Islamic law is that “Female vulva is prohibited in principleالأَصْلُ فِي الأَبْضَاعِ التَّحْرِيمُ”. As a result, Islam vehemently prohibits free intermingling between people of opposite sex. Permissibility of sexual and all other marital relationships with a woman are strictly restricted into only two means viz nikāh and milkul-yamin. Sūratul-Muminun23, verses 5-7. Therefore, marriage under Islamic law is “a contract for the purpose of legalising sexual intercourse and the procreation of children. It is purely a civil contract, the terms of which depend, within very wide limits, on the will of the consenting parties, and to the validity of which no religious ceremony is necessary”. Lawful cohabitation of husband and wife relies on existence of the bond of marriage. Once it broke via any means, man and woman can no longer legally cohabit. However, the practice of “wāre” which is retirement of a wife and replace her with another wife, seems to be a misconception, misunderstanding, misinterpretation of aim of istibdāluz-zawjah subsequently misapplication and therefore, an inconsistent with the laws regulating nikāh and talāq, to the extent that it may lead to marrying more than four wife at time. This paper reviewed the practice. Our findings revealed that there is misapplication along the line and therefore made recommendations accordingly.
- ItemContractual Legal Capacity and Its Impediments under Islamic Law(Journal of Contemporary Commercial and Industrial Law, Department of Commercial and Industrial Law, Faculty of Law, University of Port Harcourt, Choba, Rivers State, Nigeria,, 2021) AbdulWahab Mhammad Jamiu ELESINContract law can be viewed as the main instrument of facilitating social interactions and distributing legal entitlements. Under the Islamic law, contract is “an expression of the matching between a positive proposal made by one of the contractors and the acceptance of the contract by the other contractor in a way which has an impact on the subject of the contract”. It well established that, for any contract/transaction to be validly concluded, there must be tarāḍīl-mutaʻāqidayn; (mutual consent or free consensus of the parties to the contract). Also, at-tarāḍī is only legally valid when the parties to the contract possess ahliyatul-ʻaqd (contractual legal capacity). Consent is when one does something voluntarily without being forced or coerced to do the act. In other words, contractual legal capacity of the party to a contract must be free from any invalidating factors. It is therefore pertinent to discuss contractual legal capacity and various factors that affect a person’s legal power from disposing his property and concluding the contract on the ground of lacking valid consent. This research is descriptive and doctrinal aiming at providing legal material for legal practitioners especially those who do not comprehend original language of the law. The research consulted Qur’ān, Sunnah, fiqh manuals, tafsīr books and academic literature. Our findings reveal that lack of proper understanding of the contractual legal capacity and its impediments may lead to miscarriage of justice. The paper therefore recommends that al-quḍāt (judges), muḥāmūm (lawyers), students of law as well researchers be well informed and be guided accordingly. Keywords: Islamic Law of Contract, Contractual Legal Capacity, Impediments of Contractual Legal Capacity, Interdiction of Contractual Legal Capacity
- ItemJURISTIC STUDY ON CONDITIONALITY OF AL-MAḤRĀM FOR NIGERIAN FEMALE ḤAJJ (PILGRIM): IMPLICATIONS AND SOLUTIONS(Jurnal Syariah, Jil. 25, Bil. 2 (2017) 289-312, 2017) AbdulWahab Mhammad Jamiu ELESINThe requirement for a female Muslim to have a maḥrām when traveling is not peculiar to hajj and ʻumrah alone. However, in the contemporary period, the Kingdom of Saudi Arabia has become very strict on such a condition, especially on ʻumrah and hajj. The legal implication of this system is that a female Muslim may not participate in hajj or ʻumrah if her maḥrām cannot perform hajj or ʻumrah with her for various reasons. However, this study reveals that the result of such a strict condition has led operators of the hajj and ʻumrah to falsify data by applying for their visa through another male pilgrim who is not their legal maḥrām. Eventually, such intending female pilgrims end up performing the hajj or ʻumrah with a group of trustworthy women or men, as has been rightly supported by a reasonable numbers of independent jurists. It is worthy of note that this practice of accompany with a maḥrām for a travelling female Muslim originates from the statement of the Messenger of Allāh (SAW) due to the prevailing circumstances of the ummah at his time. The practice of his noble companions after him support this understanding. This paper analyzes the legal precedent and reasoning behind this condition and offers reasonable, practical and meaningful solutions.