LECTURE 2
ISLAMIC FAMILY LAW
(LAB2023)
Muslim Marriage
DR. CHE ZUHAIDA SAARI
Ph.D. (Leiden, The Netherlands), LL.M (UM)
LL.B (Syariah) (IIUM); LL.B (IIUM)
Advocate & Solicitor (Non-practising)
Outlines
• 1. Muslim Marriage: An Overview.
• 2. Marriage Requirements.
• 3. Capacity of Marriage.
• 4. Prohibited Marriage.
• 5. Other Requirements.
1. Muslim Marriage
1.1. An Overview
• Under Part II of Islamic Family Law (Federal
Territory) Act 1984 (Act 303) (hereinafter
referred to as ‘IFLA’).
• Section 7 – 24 deal with marriage.
2. Marriage
Requirements
3.1. Conditions for a valid marriage
• (1) A male / bridegroom (al-zauj);
• (2) A female / bride (al-zaujah);
• (3) A wali (guardian);
• (4) Witnesses;
• (5) Pronouncement of offer and acceptance
(sighah ijab wa qabul).
• (1) A male / bridegroom (al-zauj):
– Dalil: Al-Baqarah: 221;
– Conditions of prospective husband:
• 1. A Muslim;
• 2. Not within ihram hajj or umrah;
• 3. A specific man;
• 4. Not having four wives;
• 5. Voluntarily (not under duress);
• 6. A man (not khunsa musykil).
• (Islamic Family Law (Kelantan) Enactment 1983)
• (2) A female / bride (al-zaujah):
– Dalil: An Nisa: 3;
– Condition of prospective wife:
• 1. A Muslim;
• 2. Not within ihram hajj or umrah;
• 3. A specific woman;
• 4. Not a wife to another person and not within the
period of iddah;
(Islamic Family Law (Kelantan) Enactment 1983)
• (3) A Wali (guardian);
– Wali is defined as a specific authority given to
someone to solemnize a marriage.
– Dalil: An-Nur: 32; Al-Baqarah: 221.
– Hadith:
• Ayesha reported that Prophet Muhammad saw said:
– ‘The marriage of a woman who marries herself without the
consent of a guardian is void …’
(Sunan Abu Dawud Kitab al-Nikah Vol.2, p.557)
– Conditions of a wali:
• 1. A Muslim;
• 2. A Male;
• 3. Legal capacity (of sound mind, reached age of
puberty/baligh, a free man);
• 4. Voluntarily (not under duress);
• 5. Not fasik;
• 6. Not within ihram haji or umrah.
• (Islamic Family Law (Kelantan) Enactment 1983)
• List of priority (of wali):
– i. Natural father;
– ii. Paternal grandfather and above;
– Ii. Brother (same father and mother);
– Iii. Brother (same father);
– Iv. Nephew (same father and mother);
– V. Nephew (same father and below);
– Vi. Paternal uncle (same father and mother);
– Vii. Paternal uncle (same father);
• Reasons for transfer of perwalian to wali
aba’ad:
– (i) wali akrab has not attained baliqh;
– (ii) wali akrab is of unsound mind;
– (iii) wali akrab is fasik;
– (iv) wali akrab is of different religion;
– (v) wali akrab is dead.
• Sec.7(2) (IFLA):
•Where a marriage involves a woman who has
no wali from nasab in accordance with Hukum
Syara', the marriage shall be solemnized only
by the wali Raja.
• Reasons for transfer of perwalian khassah to
ammah (wali raja):
– (i) wali nasab is not available;
– (ii) wali nasab lives two marhalah (60 miles) or
more;
– (iii) absent of wali akrab – his where about is
unknown, do not know whether he lives or dead;
– (v) wali akrab refuses to be wali and the Kadi is
satisfied.
– (vi) wali akrab is within ihram haji or umrah.
• Two marhalah:
– The disappearance (ghaib) or unavailability of a
wali needs certain amount of distance (marhalah).
– Majority of scholars: 48 miles.
– Malaysia – based on fatwa of each states (eg.
Kedah and Johor (91km); Federal Territories and
Selangor (96km); Kelantan (94km).
• Hashim v Fatimah [1977] 5 JH 106:
– Issue: Whether marriage took place in Thailand
was valid?
– Fact: Parties and wali resided in Kedah – they
married in Padang Besar, Thailand – the distance
less than 2 marhalah.
– Held: marriage was not valid (as the wali stayed
less than 2 marhalah from the place of marriage).
• Wali Mujbir (with power of compulsion):
• The majority of scholars agree – wali mujbir has
full right regarding marriage upon a virgin who has
come of age. (reason: wali mujbir’s position is
attributable to the virgin status of the woman (al-
bikr)
• Hadith:
• ‘A divorced woman has more rights upon herself
compared to her wali as for a virgin is married by her
father (wali)’.
• (4) Witnesses;
– Dalil: Al-Baqarah:282.
– Hadith:
• ‘There is no marriage except where there is a wali and
two witnesses who are adil (just). Otherwise the
marriage will be invalid’.
• Conditions of witnesses:
– (i) not less than two persons;
– (ii) Muslim;
– (iii) of sound mind;
– (iv) baligh (age of puberty);
– (v) male;
– (vi) can hear, speak and see;
– (vii) just;
– (viii) understand the requirements of sighah and
qabul.
(Islamic Family Law (Kelantan) Enactment 1983)
• (5) Pronouncement of offer and acceptance
(sighah ijab wa qabul):
– The marriage contract is made by the
pronouncement of an offer (ijab) from one party
and acceptance (qabul) from the other party.
– The pronouncement of ijab comes from wali (e.g.
‘I marry you with my daughter’).
– The pronouncement of qabul is made by the
husband (e.g. ‘I accept the marriage’).
• Conditions of sighah:
– (i) made in an official ceremonial gathering;
– (ii) both must hear each other, and understand;
– (iii) acceptance (qabul) should match the offer
(ijab) in expression;
– (iv) witnessed by 2 legally acceptable witnesses.
3. Capacity of
Marriage
• i) Age:
– Section 8, IFLA (Minimun age for marriage):
• No marriage may be solemnized under this Act
where either the man is under the age of eighteen
or the woman is under the age of sixteen except
where the Syariah Judge has granted his
permission in writing in certain circumstances.
• ii) Consent: (Bride and Guardian/wali)
– Woman has no jurisdiction to solemnise her own
marriage, except with the presence of wali.
– Section 13, IFLA: (Consent Required)
• A marriage shall not be recognized and shall not
be registered under this Act unless both parties to
the marriage have consented thereto, and either –
– a) the wali of the woman has consented thereto in
accordance with Hukum Syara'; or
• b) the Syar'iah Judge having jurisdiction in the place
where the woman resides or any person generally or
specially authorized in that behalf by the Syariah Judge
has, after due inquiry in the presence of all parties
concerned, granted his consent thereto as wali Raja in
accordance with Hukum Syara'; such consent may be
given wherever there is no wali by nasab in accordance
with Hukum Syara' available to act or if the wali cannot
be found or where the wali refuses his consent without
sufficient reason.
• Ismail v Aris Fadillah & Anor (1980) 5 JH 326.
– Issue: Plaintiff asked the court to annul the
marriage of both defendants (as the nearer wali
was available).
– Fact: Plaintiff acted as a wali to the marriage –
after that knew that the grandfather (nearer wali)
available.
– Held: The Kadi annulled the marriage.
• Azizah bt Mat v Mat bin Salleh (1971) 2JH 251.
– Plaintiff (aged 21) applied to be married by a wali
hakim (as her father refused to marry her –
reason – has to secure job first).
– Held: The court allowed to be married by wali
hakim – as the reason is baseless.
4. Prohibited
Marriage
– Section 9, IFLA (Relationship Prohibiting Marriage):
• (1) No man or woman, as the case may be, shall, on the
ground of consanguinity, marry –
– a) his mother or father;
(b) his grandmother or upwards, whether on the side of his father or his mother,
and his or her ascendants, how-high-soever;
(c) his daughter or her son and his granddaughter or her grandson and his or her
descendants, how-low-soever;
(d) his sister or her brother of the same parents, his sister or her brother of the
same father, and his sister or her brother of the same mother;
– (e) the daughter of his brother or sister, or the son of her brother or sister and the descendants, how-
low-soever, of the brother or sister;
(f) his aunt or her uncle on his father's side and her or his ascendants;
(g) his aunt or her uncle on his mother's side and her or his ascendants.
• (2) No man or woman, as the case may be, shall, on the ground of
affinity, marry –
– (a) his mother-in-law or father-in-law and the ascendants of his wife, how-high-
soever;
(b) his stepmother or her stepfather, being his father's wife or her mother's
husband;
– (c) his stepgrandmother, being the wife of his grandfather or the husband of
her grandmother, whether on the side of the father or the mother;
(d) his daughter-in-law or her son-in-law;
(e) his stepdaughter or her stepson and her or his descendants, how-low-
soever from a wife or a husband with whom the marriage has been
consummated.
• (3) No man or woman, as the case may be, shall, on the
ground of fosterage, marry any woman or any man
connected with him or her through some act of suckling
where, if it had been instead an act of procreation, the
woman or man would have been within the prohibited
degrees of consanguinity or affinity.
• (4) No man shall have two wives at any one time who
are so related to each other by consanguinity, affinity,
or fosterage that if either of them had been a male a
marriage between them would have been illegal in
Hukum Syara'.
– Section 10, IFLA (Persons of Other Religions):
•…
• (2) No woman shall marry a non-Muslim.
5. Other
Requirements
a) Dower (Mahr) and Gift (Pemberian)
– Section 21, IFLA (Maskahwin dan Pemberian):
• (1) The mas kahwin shall ordinarily be paid by the man or his
representative to the woman or her representative in the
presence of the person solemnizing the marriage and at least
two other witnesses.
• 2) The Registrar shall, in respect of every marriage to be
registered by him, ascertain and record –
– (a) the value and other particulars of the mas kahwin;
– (b) the value and other particulars of any pemberian;
– (c) the value and other particulars of any part of the mas
kahwin or pemberian or both that was promised but not paid
at the time of the solemnization of the marriage, and the
promised date of payment; and
– (d) …
• Raman v Hasnah (1971) 3 JH 107
• Hasnah claimed the balance of marriage expenses
(RM100) from Raman. Raman admitted that he had not
paid the sum.
• Held: Raman must settle the sum.
• Salma v Mat Akhir (1984) 5(1) JH 161
• Wife claimed the payment of mahr RM600 still due
after the divorce. But husband claimed that the
amount was returned to him. Wife denied and take
oath and bring 2 witnesses.
• Held: Husband must pay the mahr.
• Janat v Sheikh Khuda Buksh (1911) FMSLR 61
• Held: The husband must pay the mahr in money. Only if
the wife consent then he may substituted the money
with article.
• If article is given, it may not become as part of mahr
unless with wife’s consent.
b) Kafaah / Kuf’u
(Equality of Status)
• The issue of equality of social status.
• Hanafis’ view:
– Right of father - on certain aspect of lineage,
religion and freedom, age and property.
• Malikis’ view:
– Equal in status based on – religion, intellect and
other circumstances (dignity, ability to pay mahr).
• Shafi’is view:
– 7 conditions: religion, lineage, freedom, source of
income/occupation, property, age, and secure
from any embarrassment which can cause fasakh.
• Syed Abdullah al Syatiri v Syarifah Salmah
[1959] MLJ 137 (Singapore):
– Kuf’u is a condition to be fulfilled if the wali
wishes to marry her virgin daughter without her
consent.
– So as the wali can refuse to permit the marriage
based on issue of kafaah.
• Sharie Prosecutor v Syed Abdul Qahar bin Syed
Ahmad and Wirdahani bt Mohd Noor (civil
case no.11006-010(1)-1-2003, Syariah Lower
Court Kuala Terengganu.
• Father refused to marry daughter to Syed Qahar – no
kafaah – as he was from syed origin (egoistic and
difficult to discuss). Parties married in Narathiwat.
• Held: Father’s reason is groundless/invalid. Marriage
valid but has to pay fine (to register in Malaysia)
Thank You
