Preface

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3. Going by section 137 sub section (4) of the 1997 Constitution of the Gambia
which limits the jurisdiction of Cadi Courts to matters of marriage, divorce
and inheritance were the parties or other persons interested are Muslim, the
Cadi Courts have no jurisdiction to entertain cases concerning joint
ownership of landed properties.
4. Where a man tells his wife “I prefer to go to hell than to retain this woman
in marriage” that statement is tantamount to divorce by indirect means
according to Maliki School of Law. See Bidayatul Mujtahid Vol. 2 Page 74.
5. The 1 st appellant was deemed to have been divorced on 23 rd /3/2011 when the
Respondent referring to her told the court that “I prefer to go to hell than to
retain this woman in marriage”
6. Long term marriage between the appellant and the respondent is not in law
a bar for divorce since divorce (even though it is the most hated of all the
permissible) is permitted by Sharia as stated by Prophet Muhammad
(P.B.H.) “The most hated of all thing which have been permitted by Allah is
divorce”. See the Sharia Islamic law by Professor Abdur Rahman Doi P169.
See also Sunanu Abu Dawud Vol. 3 Page 231.
7. The 1 st appellant after her divorce and completion of Iddah she has no legal
right according to Sharia to continue to stay in the matrimonial home in line
with prophetic tradition which says: “It is reported by Fatimat Bintou Qays
who said that her husband has divorced her three times and prophet
(P.B.U.H.) did not give her right for maintenance and shelter” See Muslim
with comment of Imam Nawawe. Vol. 4 page 94
JUDGMENT
Written and delivered by Omar A. Secka