Marriage - Own notes for revision PDF

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MARRIAGE What is ‘marriage’? Marriage is a civil contract, which also be regarded as religious sacrament. It is contracted by declaration made by one contracting party followed by a corresponding acceptance by the other side. Elements of marriage  Male party  Female party  Wali  Witness  Ijab and Qabul The elements of marriage include a male party, a female party, wali, witnesses, Ijab and Qabul. Holy Quran : Al- Baqarah (2):221 is stated to the effect that “Nor marry your girls to unbelievers until they believe; a man slave who believes is better than an unbeliever even though he allures you. Unbelievers do but beckon you to the fire but God beckons by His Grace to the Garden of Bliss and Forgiveness, and make His signs clear to mankind, that they may receive admonition” Hadith Harith bin Qais said: I embraced Islam while I had eight wives. I mentioned it to the Prophet (PBUH). The prophet said:’ Select four of them’. Conditions of the husband 

A Muslim;

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Not within Ihram Haji or Umrah; (alcohol?)

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A specific man (ta’ayin);

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Not having four wives;

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Voluntarily and not under duress;

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A man and not khunsa. (lahir dgn 2 jantina) / khunsa yg pilih jadi lelaki Conditions to be a husband include he must be a muslim, not within Ihram Haji or Umrah, a specific man (ta’ayin), not having four wives, voluntarily and not under duress, and that he is not khunsa. Female party Holy Quran: Surah Al Baqarah (2):221 states that “Do not marry unbelieveing women (idolaters) until they believe. A slave woman who believes is better than an unbelieving woman even though she allures you” Surah al- Mumtahanan (6):10 stated: ‘O you believe: when there come to you women refugees, examine and test them. God knows best as to their faith. If you

ascertain that they are believers, then send them not back to the unbelievers. They are not lawful wives for the unbelievers nor are the unbeliever lawful husbands for them’ Conditions of the wife 

A Muslim;

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A specific woman (ta’ayin); (which of the siblings)

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Not a Muhrim (pertalian saudara) to the prospective husband;

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Not a wife to another person and not within the period of iddah (period of waiting – eg after divorce) in connection with that person;

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Not within ihram haji or umrah.

Conditions of the wife include she must be a Muslim, not a Muhrim to the prospective husband, not a wife to another person and not within the period of iddah, and not within ihram haji or umrah. Requirements of Wali Holy Quran: Al Baqarah (2):232 was stated to the effect that “When a divorced woman fulfill the term of their iddah do not prevent them from marrying their former husbands if they mutually agree on equitable terms”. Surah An Nur (24):32 states that “Marry those among you who are single or the virtuous ones among your slaves, male and female; if they are in poverty, God will give them means out of His grace. For God encompasses all and He knows all things.” Surah An Nisa (4):34 states that “Men are the protectors and maintainers of women, because God has given the one more strength than the other and because they support them from their means”. Hadith Aishah reported that the Messenger of Allah (PBUH) said: “ The marriage of a woman who marries herself without the consent of her guardian is void”, He said these words three times . Abu Hurairah reported that the Messenger of Allah (PBUH) said: “No woman ought to get any woman contracted into a marriage or contract her own marriage and the woman who enters into a marriage contract herself is an adulteress” Aishah reported that the Messenger of Allah (PBUH) said: “There is no marriage contract except that contracted by a guardian and the one who has no guardian has the Ruler as the guardian” Ranking (acc. to priority) of Wali Section 7 of the IFLA 1984 

Natural father;

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Paternal grandfather and above; Brother of the (same father and mother);

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Brother of the (same father);

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Nephew of the (same father and mother) and below;

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Nephew of the (same father) and below; Paternal uncle of the (same father and mother);

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Paternal uncle of the (same father);

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Son of paternal uncle (cousin) of the (same father and mother) and below;

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Son of paternal uncle of the (same father and mother);

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Paternal grand uncle of the (same father and mother); Paternal grand uncle of the (same father);

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Son of the paternal grand uncle of the (same father and mother);

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Son of the paternal grand uncle of the (same father and below);

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Great-grand- uncle of the (same father and mother);

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Great-grand uncle of the (same father);

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Son of the grand uncle of the (same father and mother and below);

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Son of the grand uncle of the (same father and below);

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Sultan (Wali Raja) or Ruler. Conditions of Wali

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A Muslim;

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A Man;

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Baligh; (lepas puberty / adult)

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Voluntarily and not under duress;

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Not within Ihram Haji or Umrah;

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Not Fasiq (reprobate person/ who violates Islamic Law);

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Of sound mind. In order for a person to become a wali, he must be a Muslim, a man, baligh, voluntarily and not under duress, not within Ihram Haji or Umrah, not Fasiq, and is of sound mind.

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Consent by the Bride (Izin) Izin Wajib (compulsory consent) - If she is a divorcee or anak dara (a woman who has never been married) whose wali is not mujbir *Wali Mujbir:. Natural Father, Paternal grandfather and above. Consent of anak dara compulsory if the wali is not mujbir Izin Sunat (optional consent but recommended) - If she is anak dara (a woman who has never been married) and her wali is mujbir. Circumstances for transfer of perwalian nikah from Wali Aqrab (dekat) to Wali Ab’ad (jauh)

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Wali Aqrab has not attained baligh (age of puberty);

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Wali Aqrab is mad;

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Wali Aqrab is Fasiq; (cara hidup kontra dengan islam)

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Wali Aqrab is of unsound mind;

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Wali Aqrab is of different religion with that woman;

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Wali Aqrab is dead. Circumstances for transfer of perwalian nikah from Wali Khassah (khusus/specific) to Wali Ammah (general)

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When wali Khassah (Wali Nasab) is not available;

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Wali nasab (Aqrab/Ab’ad) lives two marhalah (90 miles) or more;

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Absence of wali aqrab; that is his whereabout is unknown and it is not known whether he is alive or dead either because he had gone to war or due to an accident or was captured by the enemy or any other cause, and no order of presumption of his death has been made by any Qadhi; if such an order has been made his perwalian shall be wali ab’ad and not wali raja;

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Wali aqrab refuses to be wali and the qadhi is satisfied that that is so;

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Wali aqrab is within ihram haji or umrah;

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Wali aqrab himself is about to be married to the woman concerned. Witness Conditions:

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Must not be less than two persons;

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Must be Muslims;

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Must be persons of sound mind;

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Must be Baligh (has attained the age of puberty);

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Must be male;

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Must be persons who can hear, see and speak;

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Must understand the requirements of Sighah Ijab and Qabul;

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Must be just. Ijab and Qabul ‘Fear Allah concerning women! Verily you have taken them on the security of Allah and intercourse with them has been made lawful to you by words of Allah’. (Interpreted from Quranic verse by Sahih Muslim Kitab al- Hajj, Vol 2, at p 615) Ijab is a proposal to make a deal from the offeror . Ijab (Offer) indicates the willingness or consent from the party that offers the other party to bind themselves into a contract. Ijab can be either through verbal expression, gestures, writing or conduct. Qabul refers to the acceptance from the other party accepting the offer of the offeror which is also a basic element of Muslim marriage.

Fulfillment of the elements/ conditions S.11 of Islamic Family Law (Federal Territories) Act 1984 provided that a marriage shall be valid if all the conditions necessary, according to Hukum Syara’ for the validity thereof, are satisfied. Hukum Syara’ is defined as the Islamic law according to any recognised mazhab or school of law. Annulment of marriage Cases Ismail v Aris Fadillah & Anor (1980) 5JH326 

The plaintiff asked the court to annul the marriage between the first defendant and his sister , the second defendant.

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The plaintiff stated that he had acted as a wali when his sister was married to the first defendant but since then he had learned that there was at that time the nearer wali that is, the paternal grandfather of himself and his sister.

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The learned Qadhi held that it was clear that at the time of the marriage the grandfather was living and able to be a wali. He therefore annulled the marriage. Hashim v. Fatimah [1977] 5 JH 106

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The Chief Qadhi held that the marriage which took place in Thailand was not valid.

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Both parties to the marriage and the wali of the woman were resident in Kedah but the marriage was held at Padang Besar, Thailand.

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The Chief Qadhi in his judgment held that as the distance between the residence of the woman’s wali is less than two marhalah, the marriage was invalid.

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He therefore ordered that the woman should be separated from the man and should observe her Iddah. Husin v Saayah & Anor (1980) 7 JH 35

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The plaintiff applied to annul the marriage between his daughter, the first defendant and the second defendant , without his consent or the consent of his representative.

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The couple had gone to Thailand to get married and they were married before the Lebai who was not the Qadhi and it was carried out without the consent of the Plaintiff as the wali or his representative.

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The Qadhi held that the marriage was invalid by virtue of Administration of Muslim Law Enactment Perlis 1984. Age of marriage Holy Quran: Make trial of orphans until they reach the age of marriage; if then you found sound judgment in them release the property to them .(Surah An-nisa (4):6) Hadith:

Reported by Aishah: “The Prophet (PBUH) married me when I was six years old and I was admitted to his house at the age of nine”. The Ulama’ generally regarded the marriage between Prophet Muhammad and Aishah as special to him. S8 of IFLA provided that “No marriage may be solemnized under the IFLA where either the man is under the age of 18 or the woman is under the age of 16 except where the Shariah judge has granted his permission in writing in certain circumstances”. The same rule as to the age of marriage has also been applied by other states generally. Consent of the bride According to Shafiie, the consent of the bride is required for a marriage except in the case where a virgin girl is given in marriage by her father or paternal grandfather (wali mujbir) The right given to the father and paternal grandfather to give away his virgin daughter without her permission is however subject to condition, where it is for her benefit and for her best interest and that the father or grandfather has not acted wickedly or carelessly in the matter. In S13 of IFLA, it is provided that “a marriage shall not be recognised and shall not be registered under the 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 Shara; or (b) The Shariah judge, having jurisdiction where the woman resides, after due inquiry in the presence of all parties concerned, granted his consent thereto as wali raja in accordance to Hukum Shara’; such consent may be given wherever there is no wali by nasab in acc with Hukum Shara’ available to act or if wali cannot be found or where the wali refused his consent without sufficient reason” Solemnization of marriage The consent of marriage of a woman should be given to her wali or guardian, usually the father, paternal grandfather, brother or paternal uncle. The wali is authorised to solemnize the marriage on behalf of the woman or girl. Where the wali refuses his consent to the marriage or where the woman has no natural wali, the Ruler or the person delegated by him, can be the wali of the woman. Section 7(1) of IFLA states that a marriage in the Federal Territory shall be in accordance with the provisions of this Act and shall be solemnized in accordance with Hukum Syarak by— (a) the wali in the presence of the Registrar; (b) the representative of the wali in the presence and with the permission of the Registrar; or (c) the Registrar as the representative of the wali. Where a marriage involves a woman who has no wali from nasab in accordance with Hukum Syarak, the marriage shall be solemnized only by the wali Raja. (S7(2)) Capacity to marry The woman

According to the Holy Quran 2:228, a woman who is already married is not allowed to marry again if the marriage is subsisting. If the marriage is terminated either by divorce or death of the husband, the woman is only allowed to marry after the completion of the period of Iddah…”. - Section 14 of the IFLA 1984. Marriage of a woman 14. (1) No woman shall, during the subsistence of her marriage to a man, be married to any other man. (2) Where the woman is a janda— (a) subject to paragraph (c), she shall not, at any time prior to the expiry of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak, be married to any person other than to the man from whom she was last divorced; (b) she shall not be married unless she has produced— (i) a certificate of divorce lawfully issued under the law for the time being in force; or (ii) a certified copy of the entry relating to her divorce in the appropriate register of divorce; or (iii) a certificate, which may, upon her application, be granted after due inquiry by the Syariah Judge having jurisdiction in the place where the application is made, to the effect that she is a janda; and (c) if the divorce was by ba-in kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved, and the period of ‘iddah has expired. (3) If the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of ‘iddah for a divorce, be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides. (4) Where the woman is a widow— (a) she shall not be married to any person at any time prior to the expiration of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak; (b) she shall not be married unless she has produced a certificate of the death of her late husband or otherwise proved his death. 

a woman who comes within the prohibited degree of relationship either by consanguinity, affinity or fosterage.

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iddah peroid for JANDA - 3 times purity

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iddah period for WIDOW - 4 months 10 days

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Adik beradik ibu susuan x kahwin The man

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Under Islamic law, a man is allowed to marry more than one wife up to a maximum of four wives (polygamy). Holy Quran:”If you fear that you shall not be able to deal justly with the orphans, marry woman of your choice two or three or four; but if you fear that you shall not be able to deal justly with them then only one. That will be more suitable to prevent you from doing injustice” (Surah An- Nisa (4):3).

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However, the permission to marry more than one shall not be abused, where the permission is to be followed by 2 conditions; to treat the wives with justice, and to provide fairly adequate maintenance to the wives and the dependants according to their needs.

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Thus, to prevent injustice, the court may punish the individual, if he fails, after the marriage, to fulfill the said conditions. Prohibited marriages Relationships prohibiting marriage 9. (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 grandfather or upwards, whether on the side of his father or his mother, and his or her ascendants, howhigh-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; and (g) his aunt or her uncle on his mother’s side and her or his ascendants. Islamic Family Law (Federal Territories) 19 (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 her stepgrandfather, being 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; and (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 more than one wife 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 Syarak. Cousins marriage Sura Nisa’ (4:22-24), lists all the categories of women that one cannot marry, and does not mention cousin. Surah al Ahzab ayat 33:50 is stated to the effect that "We have made lawful for you your wives whose bridal dues you have paid, and the slave-girls you possess from among the prisoners of war, and the daughters of your paternal uncles and paternal aunts, and the daughters of your maternal uncles and maternal aunts who have

migrated with you, and a believing woman who gives herself to the Prophet and whom he wants to take in marriage". Cousins are not within the prohibited relationship of consanguinity. Fostering Surah An-Nisa 4:23: Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives' mothers, and your step-daug...