The absence of any of the foregoing essentials of a valid marriage, other than 6 and 7, which are not of
general application, renders any purported marriage null and void.
In the instant case, the Respondent alleged that the Appellant and his daughter commenced
matrimonial life because dowry was paid.
I must stress very strongly here that payment of dowry is only one of the essentials of a valid marriage
and is paid at the time of a marriage contract or subsequently thereafter. If the Appellant gave what he
called dowry, it was, at best for safe keeping pending the marriage as he could not have paid dowry
before marriage. It was rather kept in preparation of the impending marriage contract, which it forms
part of.
If as admitted by the Respondent and his daughter, there was an illicit relationship that led to pregnancy
before the marriage, it was capable of rendering the Respondents daughter incompetent to be a party
to a valid marriage until she observes istibraai just like iddah period under a legal relationship.
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The period for a pregnant woman lasts until she delivers, while a non-pregnant 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
Respondents 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 ? (alwalad 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.
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