Preface

125
to observe her iddah period. The right to accommodation is conferred by marriage
and extinguished by divorce. In between the two (marriage and divorce) there are
rights and obligations the court, under its inherent jurisdiction, should enquire into
with a view to protecting and enforcing same. All these are ancillary issues that are
dependent on the marriage or divorce over which Cadi Courts in the Gambia have
jurisdiction. It is an established principle in Islamic jurisprudence that “whatever
is necessary and indispensable for the fulfillment of an obligation, that thing is
equally necessary and indispensable”.
The above authority is in support of the judicial functions assumed by the
trial Judge and on the strength of that, the lower court was right to have assumed
jurisdiction in entertaining the case within the purview of Order XXIII Rule 111 of
the Cadi Courts (Civil Procedure) Rules 2010 which provides that the practice and
procedure of the Cadi Courts shall be conducted in accordance with the rules of
Islamic Law.
Issue No. 1 having been resolved in favour of the appellant, I will now
proceed to determination of the 2nd issue and which is whether the appellant is
entitled in law to stay in the respondent’s house after her divorce and completion
of her iddah (waiting period)? It’s trite in Maliki School of law that a divorced
woman whose marriage has been consummated is entitled to UaccommodationU from
her husband until she finishes her iddah. In the case of a pregnant woman, she is
additionally entitled to Ufeeding and clothingU until she delivers. The fact that the
appellant was conceived at the time of the divorce imposes further obligation on
the appellant not only to accommodate the appellant but also to feed and clothe her
during the subsistence of her iddah. See on this Ihkamul Ahkam page 117.