Marriage IN Islam - Lecture notes 3 PDF

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MARRIAGE IN ISLAM

Nikah: Literally means, joining together or tiding together. Shaik Abu Zahrah: It is a contract of one prescribed by legislature which entitle each party to enjoy each other in a lawful manner.

It is an organised social relationship between man & woman including sexual relationship which effect both of them, acquire mutual and social responsibility.

Al- Qur’an: An-Nisa’:3 “Marry Such Women As Seem Good To You, Two, Three and Four, but if you fear that you will not do justice (between them), then, marry only one…”

Rukun Nikah Syafie a. b. c. d. e.

Propective Husband Prospective Wife Wali/guardian 2 witnesses Ijab & Qabul

 Prospective H - Muslim Al- Baqarah : 221 S.2 of IFLA – definition of Islam Siti Fatimah bt Abd Karim v Majlis Agama Islam Melaka

Sunnah :

Marriage between a female professing the religion of Islam to a man professing Hinduism, solemnized according to Hindu rites can never be consider valid either according to hukum syarak or the existing laws.

Prophet SAW said:

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“O you young people, men and women! Whosoever can bear the burden of marriage, let him or her get married. It [marriage] is indeed contentment to the eye and a protection to the modest parts.” “Marriage is my sunnah, whoever keeps away from my sunnah he is not among me.”

Hukum Nikah  

  

Sunnah : can maintain wife/ can control nafsu Wajib : can maintain wife/ fear of zina Maliki – even no job must marry if fear of zina Hanafi – same but must be able to pay dower and can earn for a living Haram : cannot maintain wife/ suffer serious illness/ lead to immoral act Makruh : no sexual desire/ no love for wife/ cannot pay maintenance to the wife/ slack religious duty Harus : has means but desire to marry

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Not within ihram Haji or Umrah A specific man Not having 4 wives

Hadith: Ibn Umar narrated that before Ghailam Al-Saqafi converted to Islam, he had 10 wives. When he became Muslim, Prophet SAW instructed him to choose 4 out of his 10 wives. -

Voluntarily, no duress A man and not khunsa musykil

 Prospective W - Muslim Al-Baqarah:221 “Do not marry unbelieving woman until they believe...” Marriage with kitabiyyah is harus

1. Mother in law/ daughter in law 2. Step mother/ step child

Al-Maidah (5):5

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“Lawful to you in marriage are not only chaste woman who are believers but chaste women among people of the Book revealed before your time..”

Step child :

A specific woman Not a wife to another person and not within the period of iddah

Maliki & Hanafi – can marry

If stepfather has consummate the marriage with their mother : HARAM Touch only :

Jumhur : Cannot marry 

Fosterage susuan)

An-Nisa:24

Hadith :

Nor Radhiah bt Ramli v Aziz bin Othman Marriage was invalid as the woman was in her period of iddah as claimed by her exhusband.

All women and men who cannot marry by consanguinity is also haram to marry by fosterage i.

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Not within ihram Haji or Umrah Women who is not a muhrim to the prospective H a. Permanent Prohibition



Quantity of milk

Hanafi & Maliki – 1 suckle Syafie : 5 suckle Hanbali : 3 suckle ii.

Age of child

An-Nisa:23

Hanafi : from birth till 2 ½ yrs

Consanguinity (Nasab)

Others : birth till 2 yrs

1. mother/grandmother

Prophet Muhammad s.a.w said: suckling is only valid if it takes place in the suckling period.

2. daughter/grand daughter

iii.

3. sister 4. daughter of sister & brothers.

iv.

5. paternal/maternal aunty Note: Illegitimate child Shafie: father can marry his own illegitimate child Jumhur: Haram marrying his own illegitimate child 

(ibu

Affinity ties)

(Marriage

Effect of marriage :

Must suck direct from breast, pump is OK If mix, must see which is more. However, the milk should not be mixed with that of other women in a way that it would create confusion as to whose milk the child has drank.

1. the marriage is void and must talaq/ faraq immediately. 2. If knew after consummation, wife can recover dower. 3. If discover before consummation, cannot recover anything 4. Not entitle for nafkah iddah whether knew after or before consummation. b. Temporary Prohibition 1. marry another men’s wife 2. marry woman in iddah period 3. marry 5th wife 4. marry pregnant woman 5. marry 2 living sisters at a time

Min. Age for Marriage General rule: No age limit of marriage in hukum syara’. The age of majority under Islamic law is attained when a person reaches the age of puberty. Al-Qur’an : An-Nisa 4:6 Hadith : “And test the orphans until they attain puberty (the age of marriage), if then you find sound judgment in them release the property to them”. Hadith: 'A'isha (Allah be pleased with her) reported: Prophet Muhammad s.a.w married me when I was six years old, and I was admitted to his house when I was nine years old.’ Hanafi: 18 years for Male /16 years for Female. Syafie: 15 years for both. Section 8 of IFLA : 18 years for Male/

Marriage with Kitabiyyah

16 years for female but Syariah Judge has

Al-Maidah:5

discretionary power.

“No man shall marry a non-Muslim except a Kitabiyah.” Section 2 of IFLA : “Kitabiyah” means— (a) a woman whose ancestors were from the Bani Ya’qub; or (b) a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or (c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa

Abdul Razak v Maria Menado The wife was at the time of marriage a Christian but her ancestors were not originally Christians but were converted to Christianity after the coming of Islam. Held : The marriage was void as ‘at the time of the marriage’ the defendant was a Christian whose ancestors were converted to Christianity after the coming of the Prophet Muhammad SAW.

CO N SEN T

Section 10(1) of IFLA : CONSENT

Prospective W Prospective H Wali

1) Prospective W & H Shafie : A virgin girl: COMMENDABLE (Sunat) to obtain her consent. However, Wali Mujbir can compel her to marry. Virgin : S.2 of IFLA – a woman who has not had sexual intercourse whether married or not Hanafi : If woman is major- wali must get her consent, but if she is minor she must get consent from her wali. But she can repudiate the marriage after she become major/consummate the marriage. Implied/ Express consent Minor – can be implied (smile/laugh)

Widow/Divorcee – Her express is required Al-Baqarah:232 Hadiths: Ibn Abbas reported Prophet saw said: ‘A woman who has been previously married has more right to her person than her guardian and virgin’s permission must be asked, her permission being her silence.’ S.13 of IFLA – Both parties

The application to the Syariah Court wasmade by the father, the appellant, who gave evidence of the marriage which he solemnised as "wali mujbir" for his daughter and asked the Syariah Court to make an order that his daughter should accept the marriage as valid and go to live with her husband. Held : Court allowed the application and held that according to the Syafie, the marriage is valid. Requirement of Wali :

2) Wali A Wali in marriage is defined as a person who has the right to give away a woman in marriage.

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Shafie: Wali is a pillar (rukun) of nikah

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Hanafi: Wali commendable.

is

not

rukun.

Wali

is

Hadiths : Syafie Aishah reported that Prophet saw said: “The marriage of a woman who marries herself without the consent of her guardian is void”. He said these three times.” Aishah reported that Prophet saw said “There is no marriage contract except that contracted by a guardian and the one who has no guardian has the Ruler as guardian”. Hadiths : Hanafi Ibn Abbas reported Prophet saw said: ‘A woman who has been previously married has more right to her person than her guardian and virgin’s permission must be asked, her permission being her silence.’

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Muslim Male Baligh Voluntarily and not under duress Not within ihram hajj or umrah Not fasiq Sound mind

IFLA – S.13(b) & S.7 of IFLA Types of Wali : 1) Wali Khas (Wali Nasab) a. Wali Mujbir b. Wali Ghayr mujbir c. Wali Aqrab d. Wali Ab’ad

2)Wali ‘Am (Wali Ghayr Nasab) a. Wali Tahkim b. Wali hakim/Raja

In Malaysia, consent of wali is wajib S.37 of IFLA Unless permitted under Hukum Syara’, any person who uses any force or threat(a) to compel a person to marry against his will; or (b) to prevent a man who has attained the age of eighteen years or a woman who has attained the age of sixteen years from solemnizing a valid marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment. Syed Abdullah al-Shatiri v Shariffa Salmah



Wali Khas  Wali Mujbir S.2 of IFLA Refers to wali who is given power to proceed with the marriage of his virgin daughter (who is of sound mind and has come of age) without her permission Refer to: Natural father and Paternal grandfather only

Reasons for Transfer of Perwalian Nikah Wali Aqrab to Wali Ab’ad

Prophet saw said: “A divorced woman has more rights upon herself compared to her wali as for a virgin is married by her father (wali).”

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All mazhab (consensus) that wali mujbir has the right to marry his daughter without her consent. 3 conditions : - Equal status (sekufu) - Mahar must not be less than mahar al-mithil - No enmity btwn wali and the woman  Wali ghayr mujib (wali aqrab + wali ab’ad)

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Ismail Abd Majid v Aris Fadhilah & Anor Marriage was solemnised by the brother of the bride as her wali. At the time of marriage, her paternal grandfather was still alive and fulfilled all the conditions required for wali. Held: The marriage is void

No power to proceed with the marriage of virgin girl without her permission



 Wali Aqrab

Wan Hashim bin Wan Ahmad & Anor v Zaidah binti Mohamed Saleh Janda (widow). Wali mujbir was not around and admitted that he was in Malacca. Witness claimed that it was solemnized by wali tahkim since 2 marhalah. P claimed that it was first agreed to be solemnized by wakil wali or wali hakim but wali mujbir denied.

A person who is closer to the bride due to blood ties and has more right to become wali at her wedding. Muhammad Nazrul Nasaruddin v Zanariah Abdullah Marriage solemnized by wali hakim invalid. There is existence of wali nasab i.e. the bride’s brother aged 19 years old.  Wali Ab’ad

Wali Tahkim A wali that entitle to solemnize a marriage of a woman where she has no wali nasab and did not meet the conditions of using wali hakim/raja.

Refer to: all wali except Natural father and Paternal Grandfather

Held : Due to confusion, ordered the couple to be separated 

Wali Hakim/Wali Raja Legal guardian appointed by ruler or court.

A person who is not close to the bride in blood ties and has no right to become wali at her wedding if wali aqrab exists and fulfill conditions required for wali.

Refer to priority

Wali aqrab has not attained the age of puberty Wali aqrab fasik Wali aqrab is of unsound mind Wali aqrab is of different religion with the woman Wali aqrab is dead/predeceased

Lists

of

I’anatul al-Taalibin, Chap 3, page 314 states: “Where there is no one else who holds the right of wali following the sequence of nasab (lineage) or where there is no one else to emancipate her, therefore the person who has the right to be the wali at this situation is the Qadi

or the Deputy Qadi according to the saying of Rasulullah s.a.w., “the Ruler shall be the wali for a woman who has no wali.

Married in Thailand without permission wali nasab. Marriage solemnised in Religious Office Narathiwat Held: Marriage valid because fulfilled rukun and syarat.

Khori bte Ahmad v Abu Samah bin Ab Halim (syndicate marriage) The marriage between P, citizen of Cambodia with D was solemnised by a qualified jurunikah who was also wali Raja. According to the laws, in an application for consent to marry, where the woman has no wali from nasab, then the Registrar of Marriage, Divorce and Ruju’ of Muslim shall refer the application to the Syariah Judge who has jurisdiction in the place where the woman resides. Held : The marriage was a fasid marriage. Rosniza bt Mustaffa v Abu Bakar bin Dawam The applicant still had her guardian through lineage i.e.her father. Her father was not present during the wedding ceremony and he was more than 2 marhalah away (in Kelantan). The applicant did not make any application for permission to marry nor for wali hakim/raja from the Federal Territory. Since there is no prove of authorization or permission given to the imam before the marriage or proof that he was appointed as wali hakim/raja, the solemnization was invalid.

Nuraizah Chin bte Abdullah v Jamry bin Ahmad The wali of the bride is either wali mujbir or non-mujbir or the Sultan (‘Qadhi’) for a wali who has no wali. Based on the evidence of the applicant, none of her relatives (‘nasab’) has embraced Islam. Therefore, the appropriate wali for the applicant was the Sultan, at the place where she resides. Issue : If wali refuses to give consent? S.13(b) of IFLA Wali Raja – Court can only allowed if wali mujbir refuse to give consent Azizah v Mat Applicant engaged and intended to get marry. However, her father refuse to be her wali. Reason: He wanted to wait till she is employed. Held: Unreasonable excuse. Court allowed her application for wali raja. Ramli bin Abd Rahman v Marlia Akmar bt Ramli The court allows the Respondent application to marry by wali hakim on the ground that wali mujbir refuse to marry her without valid/ reasons reasonable.

Muhammad v Bahrunasrah & Mazliani Marriage without permission Wali Nasab. First marriage solemnised in Pasir Putih. Held : First marriage was not valid because the couple failed to prove wali raja has authority to give permission & failed to disclose name of person who solemnized their marriage (jurunikah). Azura Adna v Mohd Zulkiflie

 Witness S.22(2) of IFLA Al-Baqarah:282 ‘And get two witnesses out of your own men and if there are not two men then a man and two women, such as you choose for witnesses, so that if one of them errs, the other can remind him..” Hadith:

“Prophet SAW said: “There is no marriage except where there is a wali and two witnesses that are just (adil). Otherwise the marriage will be invalid”.

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Conditions of witnesses: -

Shafie: 2 male witnesses Hanafi: 1 male witness & 2 female witnesses

Conditions required of witnesses: (a) witnesses must not be less than two persons. (b) witnesses must be Muslim. (c) witnesses must be persons of sound mind. (d) witnesses must be baligh. (e) witnesses must be male. (f) witnesses must be persons who can hear, see and speak. (g) witnesses must understand the requirements of sighah: ijab and qabul. (h) witnesses must be just.

 Ijab & Qabul -

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Ijab or offer from bride’s wali or his representative Whatever language can be used Qabul or acceptanceconfession from bridegroom that he accepts the woman‘s willing to become his wife. Must use the word NIKAH and explicit (clear) Without the insertion of any foreign words or undue delay

Conditions :

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The offer and acceptance should be made in an official ceremonial gathering Both parties should hear each other and it should be understood by each one of them that the purpose of the contract is marriage The acceptance should match the offer in expression The contract should be formally witnessed by two legally acceptable witnesses....