Abstract
Children’s rights have enjoyed both national and international recognition, including rights to welfare, parental care and love, and other basic needs. Owing to this, the issue of child custody becomes expedient, especially for those labelled as “bastards” in society. This paper analyses the constitutional, statutory, customary, and Islamic law perspectives, with emphasis on how each system recognises and treats such children.
While the Nigerian Constitution prohibits discrimination on the basis of birth, customary and Islamic laws generally vest custody of illegitimate children in the mother and her family, except where the father has performed specific rites or lawful marriage.
The paper further explores judicial authorities that have shaped the discourse, highlighting the primacy of the child’s welfare as the paramount consideration in custody matters. It concludes that despite cultural and religious diversities, Nigerian law aspires to harmonize these positions with relevant customary laws, ensuring that no child suffers neglect or deprivation due to the circumstances of their birth.
Key Terms: Custody, Child, Marriage, Father, Mother, Welfare, Interest.
1.Introduction
A child brought into this world out of wedlock is conventionally labelled “a bastard.” This position of the child has, over time, attracted stigma and discriminatory attitudes from the society in which he resides and even from the immediate family of such a child.
A child is a gift from God in every reasonable person’s presumption, regardless of the circumstances surrounding his birth. This presumption is further sponsored and upheld by the Constitution of the Federal Republic of Nigeria.
A simple illustration is when a man and a woman who are lovers cohabit and the result is the birth of a child. The man, having been informed about being the father but unwilling to take on the responsibility of fatherhood, vanishes into thin air. After some years, he comes around wanting to have custody of the child.
The legal question here is: would the court grant him such a claim against the mother, considering the fact that the child is “illegitimate,” i.e., born out of wedlock? Another question is: who should have custody of a child born outside the confines of marriage? These issues will be discussed exhaustively.
Furthermore, a brief comparative analysis will be featured, i.e., customary law and Islamic law as against statutory law. Therefore, this paper aims at educating the reader on the legal position of a child born out of wedlock.
2.Legal Framework
Constitution of the Federal Republic of Nigeria 1999 (as amended), Matrimonial Causes Act, the Child’s Rights Act, and other state laws (subsidiary legislation).
A child, as defined by the Child’s Rights Act 2003, is any person under the age of 18. More so, in Onyegbu v. State (1994) 4 NWLR (Pt. 391) 510, a child was defined as follows; by virtue of section 2(1) of the Criminal Procedure Law of Eastern Nigeria, 1963, applicable in Abia State, a child means any person who has not attained the age of fourteen years.
3.Meaning of the phrase “custody of a child”
According to Black’s Law Dictionary, custody of a child involves the care, control, and maintenance of a child as granted by a court to one of the parents via an order of court in a divorce or separation suit, or in the situation of a child being orphaned.
Also, in the case of Otti v. Otti (1992) 2 NWLR (Pt. 252) 210, the Court of Appeal defined custody as;
essentially concerning control, preservation and care of the child’s person, physically, mentally; it also includes responsibility for a child in regard to his needs, food, clothing, instruction and the like…
4.Meaning of the phrase “out of wedlock”
This refers to a marriage not contracted under any of the legally recognised modes of marriage in Nigeria, namely statutory marriage, customary marriage, and Islamic marriage. Children not born under the cover of any of these marriages may be termed illegitimate, though with certain exceptions.
In Nigeria, the Matrimonial Causes Act (MCA) gives credence to child custody only as it concerns issues in dissolution of marriage or separation of the spouses by other means. By implication, it may be inferred that the court may not hear any case of child custody outside these stipulated conditions.
Section 42(2) of the 1999 Constitution provides that: “No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” This was further established in the case of Nwosu v. Nwosu (2012) 8 NWLR.
Furthermore, custody of a child born out of wedlock follows that of the mother in the absence of any person claiming custody on the basis of being the natural father of the child. This is necessarily so because a child must belong to a family and should not be abandoned and left homeless for a situation he did not create. This was the position of the court in Anoda v. Mmeka (2006) 10 NWLR, Mojuokwu v. Ejikeme (2000) 5 NWLR, and Ewonwu v. Spira (1965) 2 All NLR 233.
5.Customary Law, Islamic Law vis-à-vis Statutory Law
Custody of children born outside the confines of a legally recognized marriage under customs and traditions is presumed to belong to the mother and her family only. However, the father can gain custody after legitimizing the child, i.e., unequivocally acknowledging the child as his biological child. Here, the court would place the welfare of the child as the first consideration regardless of the parents’ relationship or position.
In the case of Febisola Okwueze v. Paul Okwueze (1989) 3 NWLR (Pt. 109) 32, where the court held thus:
Under most systems of customary law in Nigeria, the father of a legitimate or legitimised child has absolute right of custody of the child. Though the superior right of the father is recognised, this right will not be enforced where it will be detrimental to the welfare of the child. The only proper manner in which custody of a child under customary law can be determined is by specifically taking evidence to establish what is in the best interest and welfare of the child.
However, in some Igbo cultures, where giving birth to a child out of wedlock is considered a taboo, the child may automatically gain acknowledgement by the man who eventually pays the mother’s bride price, even where he is not the child’s biological father. This practice has been ruled out as repugnant to natural justice, equity, and good conscience.
In the case of Anene v. Anene (1956) NRNLR 87, where the court held that under Igbo customary law, a child born out of wedlock belongs to the mother and her family unless the father has performed the requisite customary marriage rites; mere biological fatherhood does not confer custody rights.
In the Yoruba tribe, custody remains with the mother and her family. The same applies in Hausa culture. By contrast, in Islamic law, paternity and legal status of a child born out of wedlock (walad al-zina) is not affiliated with the biological father. The child is legally considered the child of the mother alone and takes her name and lineage. Authority: Qur’an 33:5. in Hadith reported: “The child is for the (marital) bed, and for the adulterer is the stone.” (Sahih Bukhari & Muslim).
Also, Prof. Bala Babaji in his work Administration of Estate Under Islamic Law (Scribd, 2023) postulated that: “A child born out of lawful wedlock or as a result of zina … is considered illegitimate … He or she is not entitled to inherit his or her biological father even if the father acknowledged paternity. The child belongs to his or her mother only for purposes of inheritance.” Therefore, the father of a child born outside a valid marriage has no legal custody or inheritance rights.
However, in the case of Bilyamin Bishir v. Suwaiba Mohammad (KTS/SCA/KT/39/2019), the Sharia Court of Appeal held that the first thing to be considered in child custody matters is the child’s best interest, health, proper training, and education. Consequent upon this case, the court would not merely look at the personalities of both parents to make a decision but instead give utmost consideration to the well-being of the child in question.
By section 71(1) of the Matrimonial Causes Act: “In proceedings concerning the custody, guardianship, welfare, advancement or education of the children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of these matters as it thinks proper.”
Although the above provision does not define what constitutes the best interest of the child, it is presumed that the well-being, safety, and happiness of the child are intended.
In the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539, Belgore JSC (as he then was) held that the interest of children in custody matters cannot be quantified in material terms such as money or food but must necessarily promote the happiness and security that a tender age requires. However, the Child’s Rights Act protects a child regardless of the circumstances of birth. Section 10 prohibits discrimination, while section 14 guarantees parental care and guidance.
6.Conclusion
From the foregoing analysis, it is evident that Nigerian law recognizes the existence and rights of children born out of wedlock, even though their legal status under different systems varies. Under customary and Islamic laws, such children are traditionally attached to their mothers and maternal families, while the statutory framework, particularly the Constitution and the Child’s Rights Act, ensures that no child is discriminated against on the basis of illegitimacy.
The courts have consistently reaffirmed that the welfare and best interest of the child remain the paramount consideration in custody disputes, irrespective of cultural or religious leanings. However, the partial domestication of the Child’s Rights Act across Nigeria creates inconsistencies in the protection and enforcement of children’s rights, especially in the northern region.
To achieve uniformity, there is a need for full domestication and effective implementation of child protection laws across all states. Ultimately, while society may stigmatize children born out of wedlock, the law strives to shield them from discrimination, ensuring that their happiness, security, and welfare are not compromised.
References
- Constitution of the Federal Republic of Nigeria 1999 (as amended).Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria 2004.
- Child’s Rights Act 2003.
- Onyegbu v. State (1994) 4 NWLR (Pt. 391) 510.
- Otti v. Otti (1992) 2 NWLR (Pt. 252) 210.
- Nwosu v. Nwosu (2012) 8 NWLR (Pt. 1301) 1.
- Anoda v. Mmeka (2006) 10 NWLR (Pt. 987) 257.
- Mojuokwu v. Ejikeme (2000) 5 NWLR (Pt. 657) 402.
- Ewonwu v. Spira (1965) 2 All NLR 233.
- Febisola Okwueze v. Paul Okwueze (1989) 3 NWLR (Pt. 109) 32.
- Anene v. Anene (1956) NRNLR 87.
- Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539.
- Bilyamin Bishir v. Suwaiba Mohammad (KTS/SCA/KT/39/2019).
- Qur’an 33:5.
- Sahih al-Bukhari & Sahih Muslim (Hadith on legitimacy of child).
- Babaji, Bala. Administration of Estate Under Islamic Law. Scribd, 2023.
About the Author:
Victoria Shaktur Numkwen is a 300-level law student at the University of Maiduguri. She is a passionate student, legal researcher, and legal writer committed to continuous growth and self-development in the legal field. Victoria can be reached through Linkedin: https://www.linkedin.com/in/victoria-numkwen-324785248?trk=contact-info