Sammy Darko writes: Crossing the marriage carpet, there is more

When a Muslim marries under Part Three of the Marriages Act (what many people know as a wedding or ordinance), it means exactly what it means.

It means that the Muslim man has crossed the carpet and bonded himself to a ‘one-man one-woman marriage’. It is not the case that because a Muslim man maintains his religion or faith, he is entitled to marry three more women as permitted under Part Two of the marriages Act (Marriage by a Mohammedan). Such marriage allows a Muslim man to marry as many as four wives at the same time, but not more. If he marries a fifth wife when he already has four, the marriage is not void, but merely irregular(Mr. Justice Hidayatullah in his book Principles of Mohammedan Law at p 251).

There is nothing like cheating as a man has to search for more potential future partners, just as Part One of the marriages Act (Customary marriage) is potentially polygamous unless a man during the rites presented a ring to the woman. The ring in law signifies a promise to convert the potentially polygamous marriage into (one man, one woman marriage). So should such a man breach this promise, a remedy will lie for the woman. Again an unregistered Muslim marriage conveys similar incidents of customary law marriage.

The most popular case in Ghana on this subject is Barake V. Barake [1990] DLHC714.

The petitioner sued for bigamy against the first respondent (the Muslim man) after he married a second wife. The petitioner argued that she married under Part 3 of the Marriages Act. That she and her husband went to the MARRIAGE REGISTRY of the Sekondi-Takoradi City Council and performed the marriage there.

The case of the first respondent is that he earlier married his first wife under Mohammedan. He admitted that he went to the MARRIAGE REGISTRY of the Sekondi-Takoradi City Council but his father-in-law, i.e., the father of the petitioner, made him understand that it was to register the Moslem marriage. In any case, he maintained that at the relevant time of the marriage in 1969, he was illiterate in the English language and did not understand the true nature and import of that marriage ceremony. He added that he was and has always been a Moslem, and that was a fact well known to the petitioner. The petitioner was originally a Christian. She converted to the Moslem faith after the marriage.

It was the case of the first respondent that while he remained a Moslem and his wife, the petitioner, had converted to the Moslem faith, and he regarded the 1969 marriage as a Moslem marriage, he was entitled to take on another woman.

He consequently married the second respondent on 15 April 1988. The first respondent maintained that that second marriage was indubitably consistent with the religious practice of the Moslem faith to which at the material time in 1988 he and the petitioner faithfully subscribed. Under that religion, marriage was essentially polygamous and therefore his taking on another wife was perfectly in order.

The petitioner’s explanation for the change of religion from Christianity was this: Sometime after their marriage she had to live in the Moslem quarter of Lebanon where she stayed with the relatives of the first respondent. Unfortunately, she found life there rather unpleasant because, among other things, the petitioner alleged that the relations of the first respondent who were all Moslems went to the extent of having to wash their hands with water whenever they had to shake hands with the petitioner. They regarded her as some sort of infidel as she was a Christian. To be able to live harmoniously with the first respondent’s people, she changed her religion and became a Moslem. The change of religion took place in Lebanon while the first respondent was in Ghana.

BROBBEY J as he then was delivering judgment held that among others that;

“The legal position is however that religion per se is incapable of totally transforming the status of parties married under Cap 127. Once the couple are held to have married under the Ordinance, they remain bound by all the incidents attached to that marriage and status created by that marriage until they take steps, according to the law, to rid themselves of the bond of marriage. Vicissitudes in a person’s religions life are incapable of obliterating marital status created under a statute. Therefore, the fact that the petitioner variously altered her religion according to the circumstances and surroundings in which she found herself did not obliterate the marital status created by the marriage under Cap 127 to give the first respondent freedom to take on another wife. The marriage he went through with the petitioner in 1969 at the city council was like marriage understood in Christendom which has been defined by Lord Penzance in Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130 at 133 as: “ . . . the voluntary union for life of one man and one woman, to the exclusion of all others.”

The Court also noted that in Ghana, Polyandry is not permitted and a Muslim woman or a woman married under Customary marriage, cannot marry more men. If a woman was to do that, it will amount to prostitution which is a social stigma.

 

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