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By Lillian Okenwa
In another landmark judgment, an Upper Customary Court Of Kaduna State has held that: “Kagoma marriage custom requiring a woman who initiates a divorce to refund the token paid as her bride price as repugnant to natural justice, equity and good conscience.”
The court in its verdict delivered by His Worship Emmanuel J. Samaila, Esq. on Wednesday 10 January, 2024 held that: “The respondent’s reliance on the custom has the propensity of inhibiting the petitioner’s decision to seek a release from a marriage which for all intents and purposes has broken down irretrievably as evidenced by her uncontroverted testimony of the respondent’s acts of indignity, cruelty, assaults, grievous bodily harms and psychological hurts.
“The custom, which also violates the petitioner‟s fundamental right to freedom from discrimination and gender-based disabilities, as guaranteed under Section 42(1)(a) of our Constitution, is also unfair to the women married under Kagoma custom as no corresponding liability to pay any kind of compensation to a divorced wife is known to exist under Kagoma custom against a husband.”
His Worship further held that: “the custom is unenforceable because the Kagoma marriage custom requiring a woman to refund the token paid as her bride price, as a validation of the divorce she initiated to terminate a union which has broken down irretrievably, is incompatible with the 1999 Constitution (as amended), particularly Sections 1(3), 17(2)(b), 21(a) and 34(1)(a).
“It erodes the dignity of a woman married under Kagoma custom by reducing her to the status of a mere property whose value is determinable and recoverable at any time if she dares to opt out of a broken marriage, even after years of lawful cohabitation and all its concomitants including child bearing…
“Is it fair and in accord with the principles of natural justice to require a woman to refund the token paid as her bride price and return alone and empty-handed to her parents‟ house after investing her life in matrimony she must have desired to last forever? Is it equitable to make and enforce such an order against a woman married under customary law, as in the instant case, when such is not a requirement for either an interim or final decree dissolving a marriage contracted under the Marriage Act?
“Will it be conscionable to blindly and slavishly give effect to and make such an order against the petitioner just because it is the custom of the Kagoma people as canvassed by the respondent?
“Is it conscionable that a woman married under the Marriage Act gets alimony and enjoys the just and equitable right to settlement of property and maintenance but her sister married under customary law gets nothing when she chooses to leave and is even required to refund to her man the token he paid as her bride price?
“Is it conscionable that a woman who was physically and psychologically battered and bruised in the course of discharging her numerous matrimonial responsibilities for eight (8) years, including taking care of their child and the respondent, especially when he becomes sick, should be ordered to refund her bride price for seeking to leave a broken union?
“How will the application of this custom encourage and inspire women married under customary law to be committed to their marriages to the point of returning to their husbands‟ houses, as the petitioner did severally in the instant case, even after being maltreated, bruised and battered…”
Ruth Reuben had approached the court seeking the dissolution of her marriage to Reuben Ibrahim which was contracted in 2015 in accordance with Gwantu custom.
The parties were given time to explore reconciliation. However, the matter was heard after reconciliation was reported to have failed.
While Ruth did not dispute the existence of the Kagoma marriage custom requiring a departing wife to refund the token paid as her bride price to her husband., she countered it with a statement of her corresponding right to take custody of their child under Gwantu marriage custom.
Similarly, Reuben Ibrahim did not question the existence or applicability of the Gwantu marriage custom requiring a husband, as a pre-condition for the refund of his bride price, to (a) give up the custody of his child, (b) fix the damage done to a woman’s body as a result of the husband’ s acts of cruelty and (c) return her dowry, the items she brought to his house when they got married. Yet he wanted a refund of the bride price without complying with the custom.
Last year His Worship Samaila, Esq in an unprecedented verdict, upheld the request of a woman who contended that she would only return her bride price if the husband whom she sought to be divorced from could return her body to the condition it was in when he married her.
Read also: Court says bride price could be refunded if a woman’s body is returned to its form before marriage
Read also: Ugandan Supreme Court outlaws refund of bride-price
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Reuben-v.-Reuben-2024
