daughter incompetent to be a party to a valid marriage until she observes istibraa'i just like iddah period
under a legal relationship. The period for a pregnant woman lasts until she delivers, while a nonpregnant woman observes three tuhur that is three menstrual periods or three months for a young girl
or old woman who does not menstruate. ?Applying this principle, the marriage contracted during the
pregnancy was null and void as the Respondent's daughter was then under a temporary impediment
that bars her from contracting a valid marriage under Islamic Law. Even supposing the time when the
pregnancy was conceived has not been established by evidence or admission, the Court below would
have resorted to the presumption of law under the principle of ?? (al-walad lil firash) meaning the child
is for the (marriage bed). By this principle the legal paternity of a child born in lawful wedlock is
presumed if born within the minimum or maximum period of gestation. The minimum period is
applicable where the couple are still together as in the instant case. This is a period of six months from
the date of marriage and consummation thereof to the date of birth. A mere glance at these two dates
reveals a period of five months and four days. However, calculating by the lunar Hijri calendar shows 82-2014 is equivalent to 7 Rabi' II 1435 Hijri, while the date of birth is 12-7-2014 that is equivalent to 14
Ramadhan 1435 Hijri, which is exactly 5 months and 7 days. This falls short of the required minimum
period of gestation of 6 months that supports a legal presumption of paternity under Islamic Law. It was
wrong for the lower Court to compute time from the day the Appellant brought money for dowry. That
was not marriage under Islamic Law. There was no dispute about the date of the marriage being
Saturday 8th February 2014 (7 Rabi' Thani 1435 A.H) and the date of birth being Saturday 12th July 2014
(14 Ramadhan 435 A.H). The period within which the child was born was therefore less than six months
as appraised above. The foregoing analysis shows that the Court below was clearly wrong in its decision
of attributing paternity to the Appellant on the basis of presumption of law." Per MUKHTAR, J.C.A. (Pp.
8-12, Paras. A-F) (...read in context)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal was triggered by the
judgment of the Kebbi State Sharia Court of Appeal, Argungu Division delivered on the 11th day of June
2015, wherein the Court Below dismissed the Appellant's appeal and affirmed the decision of the Trial
Court (i.e. Upper Sharia Court, Gwandu).
On the 7th day of April 2014, the Respondent herein instituted this suit against the Appellant before the
Upper Sharia Court, Gwandu in Suit No. USC/GD/CV/F1/27/2014, seeking for an order of the trial Court