The first case under (a) above hardly occasions since admission of father usually avoids litigation. The
second case under (b) is the commonest in paternal disputes. In the instant case, the Appellant has
vehemently denied the paternity of child in question barely two months after the marriage and
approached the trial Court to declare that he was not the one responsible for the Respondent daughters
pregnancy. However, the respondent alleged that before the marriage was contracted between the
appellant and his daughter in accordance with the Islamic rites, the appellant had an affair with his
daughter and impregnated her.
A Court applying the principles of Islamic Law and faced with this sort of scenario would have analysed
the marriage between the Appellant and the Respondents daughter to first ascertain if there was valid
marriage before invoking the principle of minimum period of
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gestation and drawing any presumption there-from. This is because such presumption is always
predicated upon a valid marriage. From the facts and evidence adduced at the trial right through the
appellate proceedings, the parties in the instant case were on common ground that the pregnancy was
conceived before the marriage because the Appellant had paid dowry and was allowed to go into
seclusion with the Respondents daughter freely as good as if he had married her.
It must be stressed here that the essentials of a valid marriage must, except one or two, coexist to
constitute a valid marriage under Islamic Law. These are:
(1) The parties to the marriage i.e. husband and wife, must be competent (free from any impediment
whether of a permanent or temporary nature).
(2) The consent of the parties, or of their guardians must be free.
(3) Payment of dowry to the wife by the husband.
(4) The marriage contract (Siegha) that is seeking the hands of the wife by the husband followed by the
offer and the acceptance.
(5) Presence of witnesses (a minimum of two male unimpeachable witnesses).
(6) Intention of permanency (under Sunni school of thought but permissible by the shi'aites).
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(7) Marriage guardian for the wife (under some Sunni schools of thought except the Hanafi school).
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