Islamic Jurisprudence UUUK 3163 Group 10 Client Counseling Written Submission

Lecturer: Dr Muhammad Anowar Zahid Members: Benjamin Goo Koon Wern A132312 Lee Zhen Ying Lim Kai Hau Liew Pei Pei Muslan Hong Tan Chia Chun A132558 A131599 A132417 A132205 A131837

Content
Clients Problem List of Case Counsel Submission References

Clients Problem

Madam Azura, aged 32 years old, married a business man, Datuk Hakim, aged 40 years old, in September 2002 in Songkhla, Thailand. However, the marriage was not registered when they came back to Malaysia. Together they have two children, Daniel who is 8 years old and Dania who is 6 years old. Daniel was born on 4th September 2005 while Dania was born on 24 th June 2007.

During the 10 years marriage, Madam Azura lived a happy life with Datuk Hakim. He had also provided Madam Azura and her family with a luxury life. After 5 years of marriage, in August 2007, Datuk Hakim set up a joint-venture business. He said to Madam Azura that,

Darling, my sweet and adorable wife, I want you to be my partner for our business. I know your business skill is great and I believe our business will make a lot of profits. Don't you worry darling, everything will be divided equally between us.

By relying on this, Madam Azura agreed to be Datuk Hakims partner for the business which focused on fashion clothing and accessories. They named the company AZHA. Both of them agreed orally that all the profits were to be divided equally and a business account was registered on the name of Datuk Hakim. The business went well. Occasionally, Datuk Hakim went to overseas for business purposes while Madam Azura stayed in Malaysia most of the time to handle local business and ensured that everything went smoothly.

But things seemed not to work out the way it was intended. In February 2013, Madam Azura found out that Datuk Hakim was actually cheating behind her back. Besides attending business meetings and events, Datuk Hakim spent a lot of time in Australia to accompany his beautiful young girlfriend, Amanda Isabella who is aged 25 years old, a model who worked for AZHA.

Madam Azura was frustrated and angry. She and Datuk Hakim had frequent quarrels over the issue. When Datuk Hakim said that he no longer loved her, Madam Azura was so disappointed that she decided to seek for a divorce. In addition to that, she wanted to claim half of the money in the business account which worth RM 3.5 million. Madam Azura believed that the amount belonged to her as it was agreed at the beginning of the business that all the profits were to be divided equally.

On the other hand, Datuk Hakim insisted that the profits should not be divided equally on the ground that the marriage was never legal and Madam Azura was not his legal wife as the marriage was not registered in Malaysia. Therefore, there is no definition of matrimonial property between both of them and his previous statement should not be applicable. He also mentioned that he will be moving to Australia soon in order to get marry with his girlfriend and establish a new business there.

However, Datuk Hakim wanted the custody and guardianship of the son, Daniel while Madam Azura disagreed and said that the custody and guardianship of both children belong to her.

Now, Madam Azura was in dilemma and went to seek for legal advices.

List of Case
Haji Ramah v Alpha & Ors (1924) FMSLR 179 Wan Junaidah v Latiff (1988) 8 JH 122 Myriam v Mohamed Ariff [1983] 1b MLJ 40 Abdul Rahman Bin Shafiee v Hasma Bte Senawi [1998] 6 MLJ 618 Unreported Case (Mal Case No: 04100-028-0031-2009, Shariah High Court, Malacca)

Counsel Submission
Party to be Advice Madam Azura

Issues Whether the marriage between Madam Azura and Datuk Hakim is valid or invalid? Whether there is business partnership between Madam Azura and Datuk Hakim? Whether Madam Azura can claim for matrimonial property? Whether Madam Azura able to obtain custody and guardianship of her son and daughter?

Sources of Authority Islamic Jurisprudence, Islamic Family Law (Federal Territories) Act 1984

Argument

i.Whether the marriage between Madam Azura and Datuk Hakim is valid or invalid?

In Islam marriage is known as al-zawj or al-nik. Depending on the perspective from which it is being defined, different definitions are being given to marriage when viewed from its syntactical property, only that their semantic properties indicate uniformity of aim and objectives of these definitions. According to Abu Zahrah, Al-zawjis defined as, a contract availing legality of relationship and cooperativeness between a man and a woman with clear cut rights

and duties1.A similar definition is also given by Dr. al-Turmanini with the addition of as regulated by law or custom2The clarity about the marriage contract in Islam, its importance, objectives and rights associated with the contract are all evident in the following quotations from the Qurn and Sunnah:

Marry those among you who are single, or the virtuous ones among yourselves, male or female: if they are in poverty, Allah will give them means out of His grace: for Allah encompasseth all, and he knoweth all things [ Qurn 24:32]

If any of you have not the means wherewith to wed free believing women, they may wed believing girls from among those whom your right hands possess: And Allah hath full knowledge about your faith. Ye are one from another: Wed them with the leave of their owners, and give them their dowers, according to what is reasonable [Qurn 4: 25]

O mankind! Reverence your Guardian-Lord, who created you from a single person, created, of like nature, his mate, and from them twain scattered (like seeds) countless men and women;reverence Allah, through whom ye demand your mutual (rights), and (reverence) the wombs (That bore you): for Allah ever watches over you [Qurn 4:1].

O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise (each other).Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. And Allah has full knowledge and is well acquainted (with all things) [Qurn 49:13]

Ab Zahrah, Muammad. Al-awl al-shakhsiyyah (Dr al-fikr al-arab, n.d.), p. 17 Al-Turmanini, Abd al-Salm. Al-zawj inda al-arab f al-jailiyyah wa f al-islm,(alab: Dr al-qalam al-arab, n.d.), p. 17.
1 2

And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts):verily in that are Signs for those who reflect.[Qurn 30:21]

Whoever marries has completed half of his religion so let him fear Allah in the remaining portion13

A believer must not hate a believing woman (i.e. his wife): if he dislikes one of her characteristics, he will be pleased with another.

Based on the above, marriage is seen as the only possible way for the sexes to unite. One could choose to live in sin, however by choosing marriage one is displaying obedience to Allah.

To constitute a valid marriage, there are requirement to be fulfilled. Marriage, being mithq ghaldh (a solemn covenant-agreement), is not a matter which can be taken with levity. It should be entered into with total commitment and full knowledge of what it involves. It is not like a sale transaction where a lot of concessions are enjoyed, one partner should be anothers choice for life. One should be mature enough to understand the demands of marriage so that the union can be a lasting one3; as a result certain conditions must be met for a marriage to be valid prominent among which are consent of both parties, Mahr a gift from the groom to his bride, witnesses- two male or female and the marriage should be publicized; it should never be kept secret as it leads to suspicion and troubles within the community.

Those conditions serve as apparatus to safeguard the rights associated with this vital contract, included in these rights are, primarily, the rights of the contracting man and woman,
3

5 For further reading, see Islam in Focus, by Hammudah Abdalati. (n. p., n.d.), p. 84-91

followed by the rights of the children and the rights to be enjoyed by the community in general from an authentic marriage contract. The above quotations from both the Qurn and Sunnah are meant to illustrate the importance of the rights and various interests associated with the marriage contract and how they are protected through the strong conditions prescribed for the marriage contract to be authentic.

Registration of marriage is commonly known as part of the process of marriage. Literally, the phrase Registration of Marriage is self-explanatory and can be simply identified as the process of documenting marriage contracts regardless of being in accordance with any specification or being subjected to any rule and regulation, but a quick perusal into various literatures on personal or family laws provide for a broader and specified meaning which is in conformity with the purpose of the process. In this light, Dr. Ashqar defined the phrase as "Underwriting the marriage contract under the supervision of a judge as an empowered authority for marriage contracts or any delegated authority by the judge for the purpose of documentation and authentication of marriage contracts4.

Among contemporary Muslim jurists, a marriage that satisfies the requirements and conditions prescribed by Islam, but is not officially authenticated (documented) i.e. not registered in a Sharah court, is known as Customary marriage (Al-Zawj al-Urf), though it may be written down in the presence of the Wal and the witnesses. This type of marriage is islamically recognized, and was prevalent among Muslims in the past, until the official authentication of marriage in recent times became known and practiced among the Muslims as prescribed by personal status laws of many Muslim countries.

Despite the fact that registration of marriage has now become a necessary legal formality to marriage in most Muslim countries, to give the process a clean bill of Sharah compliance remains controversial among contemporary scholars. The source of the controversy has its
4

Al-Ashqar, Umar. Shar qnn al-awl al-shakhsiyyah, p. 93.

reference in the different perspective through which registration of marriage is studied, those who see marriage as being well defined in Islamic law, stood the ground that marriage and divorce upon the fulfillment of its Islamic requirements will be considered valid and binding even without being registered as no stipulation regarding registration of both can be clearly traced to both the Qurn and Sunnah.

This stand is based on the fact that, the marriage contract is knotted by mere offer and acceptance (Ijb wa Qabl) from the two intending spouses in the presence of at least two witnesses, as a result, documentation of marriage by an appropriate authority is only a means of granting the contract an official recognition which has nothing to do with its validity5. But , for the view that gives prominence to the benefits derived from its documentation, registration is not a mere official recognition requirement as it helps in actualizing Sharah objectives or purposes of marriage and blocking all pretexts jeopardizing the interests of the parties concerned. With that, registration of marriage should not be regarded as an alien to the Islamic requirements, or mere administrative requirement, but a religious obligation that must not be taken with levity.

There are two main Islamic jurist opinion pertaining registration of marriage. The first opinion stated that the registration of marriage does not carry any religious impact, it is just a formal or administrative regulation meant to realize certain objectives, such as the protection of marriage, and safeguarding the interests of the contract as related to the individuals, society, and the nation in general. Despite their realization of the benefits attributed to this process, the advocates of this opinion still maintain that registration of marriage and other related issues are mere rules and regulations which are not in conflict with Sharah, but have nothing to do with the authenticity of the contract, as a result, no religious impact can be assigned to it.

This view is held by many contemporary scholars, among them: Tanzil al-Rahman, Dr.Peunoh Daly, Sheykh Afanah, Sheykh alAzhar Jad al-Haqq, and Jamil J. Nassir.In
5

Afanah, Huseim al-Din. Fatw Yasalnak (Qnn al-Awl al-Shakhiyyah alMiyriyyah, n.d)

supporting this view Tanzil al-Rahman (1984) agreed that the provision of registration is not found in the Qurn or Sunnah, but there are no prohibitory provisions either Muslim jurists, however, are of the view that the writing down (recording) of marriage (kitbah) is desirable. It may, however, be clearly noted that the registration or non- registration of marriage does in no way affect the legality or validity of marriage. If a nikh has been duly performed according to the Sharah, it is valid; mere non-registration will not affect its character. The condition of registration is, therefore, merely auxiliary. It is not a constituent condition of a marriage.

The purpose of the enforcement of registration is to remove the difficulty of proving the marriage and dower. Therefore, there is no inappropriateness in appointing a registrar to achieve the above objectives6.According to Dr. Peunoh Daly (1994), to keep a record of marriage is important as it is for the benefit and protection of the society at large and is not against the Islamic law7. Sheykh Afanah while maintaining the same view submitted that : "The rule in Islam is that marriage is knotted by Ijb wal qabl or offer and acceptance between the two spouses or by their proxies or between one of them and the other proxy, in the presence of two witnesses with other conditions to be satisfied . Only recently, official documentation of marriage is introduced in order to among other objectives proof the authenticity of the marriage in case there is dispute, though documentation is not a precondition for the contract to be valid
8

the same view is held by Sheykh al-Azhar-Jad al-Haqq9 and Jaml J. Nassir10.

Meanwhile, the second opinion stated that the registration of marriage is an Islamic requisite, being required by the contemporary circumstances, thereby making the registration of marriage in the law courts a religious duty. Prominent among the strong advocates of the view that the registration of marriage is compulsory and to be regarded as a mandatory religious duty

Tanzl al-Rahman, A Code of Muslim Personal Law, (Karachi: Islamic Publisher, (1984), Vol. 2, p. 88. Dr. Peunoh Daly, Hukum Perkahwinan Islam Satu Studi Perbandingan kalangan Ahlus Sunnah & Negara negara Islam (Kuala Lumpur: Thinkers Library, 1994), p. 124 8 Afanah, Husam al-din. Fatw Yasalnak (Qnn al-Awl al-Shakhsiyyah alMiyriyyah). 9 8 Jad al-Haqq Allyy Jad al-Haqq. Ministry of Endowment Web-Egypt. http://www.islamiccouncil.com . 10 9Nassir, Jamal, J, The status of women under Islamic Law (London: Graham & Trotman, 1990), p. 28.
6 7

is Dr. Ukam. This second opinion is the choice of the researcher based on variou s legal justifications for the conditionality of this exercise for a marriage contract to be valid.

There are many evidences supporting registration of marriage contract as religious duty which is the second jurist opinion. First, the fact that in various laws of personal status of Muslim countries it is clearly stated that Sharah and its sources, rulings of various schools of Islamic Jurisprudence (Al-madhhib al-fiqhiyyah) and contemporary discretions are the sources of these laws, makes the laws of Sharah based and its rules and regulations given the same status according to juristic issues determined by the discretions of classical Islamic scholars.

To buttress this point, the following references may be suitable in which the Algerian Personal status law, codified in 1984, was based on the Maliki School. The codified law, No. 8411 of 9 June 1984 contains (in Article 222) a provision for reference to the Sharah, The effect of this is that, rather than being restricted to a single school, judges are able to seek an appropriate solution to a problem from any of the sources of the Sharah, including the primary sources the Qurn and Sunnah as well as secondary sources such as ijm (juristic consensus), qiys(analogy), istisn (juristic preference) or mali mursalah (the considerations of public interest) and other tools of jurisprudence, the opinions of any of the Sunni or other schools of law, and even custom and convention11.

Secondly, this opinion is unequivocally and emphatically supported by the following principles and legal maxims of Islamic Jurisprudence. The first principle is the principle of sadd al-dhari (prohibition of evasive legal devices, or blocking the lawful means to an unlawful end)12. Relating this principle to the topic of discussion, it is lawful to conduct a marriage contract, without registering it with an appropriate authority once it is Sharah compliant, but for

11

El-Alami, Dawoud and Hinchcliffe, Doren. Islamic Marriage and Divorce Laws of the Arab World, p. 39. 12 Niyazee, Imran Ahasan Khan. Islamic jurisprudence (Ul al-Fiqh) (n.p, 2003), p. 248.

the fact that this action will certainly lead to an unlawful end it has to be prohibited. However, there is disagreement among the jurists regarding the acceptance or rejection of this principle.

The Malikis and the Hanbalis say that all lawful acts which are certainly leading to an unlawful end may be prohibited. The Shafis and the Hanafis say that these are lawful acts and they cannot be prohibited13.The opinion of this is that this principle is an acknowledged principle of the sharah and as long as any act leads to unlawful results, they should be prohibited, because this stand is in tandem with another sister principle known as Fat al-Dhari (permitting the unlawful means to a lawful end) which is unanimously agreed upon by jurists of different schools of thought. If the unlawful means to a lawful end is permitted, it is quite logical to forbid a lawful means to an unlawful end.

The second is Istisn (Juristic Preference). Istisn, in the literal sense of it, means: to consider something good, but technically, according to Ibn al-Arabi as quoted by Nyazee, is defined as sacrificing some of the implication of an evidence by way of exemption insofar as the exemption opposes some of these implications. Istisn simply is a method for looking at the consequences of a decision. For the purpose of this discussion, the consequences of strict application of the evidences on the requirement of a valid marriage contract have figured significantly in the preference of recommending registration of marriage which has more healthy consequences for the people. Istisn is an efficient method of legal reasoning that ensures analytical consistency in the system and helps the jurist identify general principles and exemptions besides giving importance to the consequences of the decision. Though there are many types of Istisn, there are only three types that are applicable to this topic, namely:

1) Istisn on the basis of what is good. According to alSarkhas, one meaning of Istisn is where Sharah is asking us to follow what is good (marf) and has left the determination of this marf to our opinion by following what the Sharah would consider to be good, which is
13

Ibid.

determined in accordance with the general principle of Sharah. In this case all benefits derived from registration of marriage are unanimously considered to be good as they are in conformity with the general principles of Sharah. 2) Istisn on the basis of necessity (Dharrah). The fitness of this type of Istisn is very clear in that contemporary situation has necessitated the introduction of marriage registration, and in SharahNecessity knows no laws whereas in this case no law is violated by imposing registration of marriage as a religious obligation because it is a means of facilitating the perfect implication of Sharah requirement on marriage contracts. 3) Istisn on the basis of Malaah,Al-Malaah al-Mursalah: Al- Malaah al-Mursalah is another evidence of Shariah under which the registration of marriage can be legally determined14 . Literally al- Malaah al-Mursalah is simply defined as the acquisition of manfaah (benefit) or the repulsion of madharrah (injury or harm), in a technical sense, it means the preservation of the purposes of Sharah or Islamic law in the settlement of a legal issue The purposes of the law are the interest recognized by Sharah. The relevance of this evidence of Sharah in determining the status of registration of marriage is unambiguous; in that pertaining to relation to the preservation of the right of couples and their children, many benefits (manfah) are acquired and many injuries or harms (madharrah) are also repelled or avoided through the implementation of registration of the marriage, some of which can be enumerated as follows:

i. In many, if not all countries of the world, marriage contracts are not recognized unless they are officially authenticated which is only possible if they were registered. ii. No claim can be laid to inheritance between couples unless their marriage is officially certified. iii. Linage is the only means through which children can inherit their parents; its establishment can only be made possible through the official document showing the marriage contract between their parents.
14

Fatw from center for Fatwa on Islamic web www.islamweb.net

iv. Hajj, one of the corner stones of Islam, cannot be performed by a woman without her marim husband, father or brother- the proof of which can only be possible with officially certified marriage. These and other benefits necessitate the classification of this exercise under AlMalaah al-mursalah which according to Al-Salibi is one of the Islamic jurisprudence principles considered by classical Muslim scholars as a means of determining the legality of any contemporary issue.

These and other benefits necessitate the classification of this exercise under Al- Malaah al-mursalah which according to Al-Salibi is one of the Islamic jurisprudence principles considered by classical Muslim scholars as a means of determining the legality of any contemporary issue15.All conditions for determining a legal issue through al- Malaah alMursalah such as not clashing with a text (na) or altering the implication of text, not clashing with existing principles and propositions of Islamic law (established practices of sharah), and not being strange (gharb) to sharah (i.e. that the norm promoted must be among the purposes recognized by Sharah) are satisfied.

The purposes recognized by sharah which are actualized or supported by marriage registration are not less important than those actualized by well known examples of legal issues settled through al- Malaah al-Mursalah. Ghazali said: on the basis of al- Malaah al-Mursalah it is permitted to the ruler to impose taxes if the coffers are empty and he needs money for Jihd or for the preservation of the Muslim Ummah. There is no doubt that the preservation of interest of individual families from which Muslim Ummah is constituted is directly related to the security of the Ummah.

Maqsid al-Sharah stated that necessities or exigencies associated with the registration of marriage contracts put it under the recognition of Maqsid al-sharah (general objectives of Sharah) especially at this time in which marriage contracts are no more considered valid unless
15

As-Salibi, Al-Itilm, vol. 1, p. 185.

they are officially authenticated through registration, wife and children are no longer entitled to inheritance without official documents to prove the deceaseds relationship of being husband and father to the children, so a lot of interest will be jeopardized for non registration of marriage.

Under As-Siysah al-Shariyyah, it stated that the necessity or regarding registration of marriage being compulsory is brought about by being obedient to those who are in authority, as contained in [Qurn 4:59]: {O ye who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day: That is best and most suitable for final determination}16.Among the strong advocates of the view that registration of marriage is compulsory and should be regarded as a mandatory religious duty is Dr. Ukam , who also sees that registration of marriage is part of obedience to the people in authority. He states that even though a marriage contract compliant with Sharah may be valid, but Sharah itself disapproves of being disobedient to those who are charged with authority.17

With the evidences enumerated above, the position of the researcher is that registration of marriage should be seen as a religious duty, which, if violated, must be punishable for the following reasons which is first of all, for being unanimously accepted among contemporary Muslim scholars that there are objectives recognized by Sharah and a lot of interests which can only be realized or protected in the contemporary world through the registration of marriage, thereby paving the way for its accommodation as a contemporary issue that needs to be contemporarily treated on the Islamic juristic principles meant for accommodation of such. Apart from that, Sharah frowns at the act of disobeying those who are charged with authority, as they are the ones saddled with responsibility of safeguarding the interest of all people in their domain, once their actions are Sharah compliant, any act of disobedience to their authority must be condemned.
Aqlah, Muhammad. Nim al-Usrah f al-Islm (Ammn: Maktabah Rislah Hadthah, 1990), Vol.1, p.394. 17 Qudsiyyat al-Zawj f al- Sharah wa al-Qnn published in Jardah al-Jamhr al-arabiyyah of 30/ 3/2005 no 11802
16

Though there are two contending opinions regarding the registration of marriage as a basis for its official recognition, both are unanimous in recognizing its importance in this contemporary situation, whereby a lot of harm may be caused and a lot interest may be jeopardized if the directive of registering this contract is not abided by, and that non compliance amounts to disobedience towards people who are charged with authority. Taking into consideration the objectives and purposes of sharah realized through the documentation of marriage officially, the best opinion is the one regarding the documentation as a mandatory religious duty, for the belief that all what shariah is aiming at, is to obtain benefit and maximize it and to deter harm or minimize it, which is realizable in this issue through registration of marriage. To address the juristic problem of proving Sharah compliance of registration of marriage, there are many Islamic jurisprudence principles and legal maxims on which its legality is based such as: Sadd al-dhari, al- Malaah al-mursalah, Istisn and al-siysah alshariyyah as explained in this study.

As we can see under Islamic Jurisprudence, there are two different jurist opinion which the second opines that a marriage without registration is illegal and thus there is no legal effect from the illegal marriage whereas the first jurist opines that marriage without registration but in accord with Hukum Syarak is legal. Malaysian law is in accord with the first opinion which stated that marriage without registration is valid as long it is in accord with Hukum Syarak. However, registration of marriage which is valid under Hukum Syarak only be granted by the discretion of Malaysias court. This is stated in section 12 Islamic Family Law (Federal Territories) Act 1984:

(1) A marriage in contravention of this Act shall not be registrable under this Act. (2) Notwithstanding subsection (1) and without prejudice to subsection 40(2), a marriage which has been solemnized contrary to any provision of this Part but is otherwise valid according to Hukum Syarak may be registered under this Act with an order from the Court.

Meanwhile, section 34 stated the legal effect of registration:

Nothing in this Act or rules made under this Act shall be construed to render valid or invalid any marriage that otherwise is invalid or valid, merely by reason of its having been or not having been registered

Thus, though Madam Azura married Datuk Hakim in Thailand, as long the marriage is valid according to Hukum Syarak, it is valid. However, it is best that Madam Azura seek registration of the marriage between her and Datuk Hakim through Malaysia court which granted by discretion of the court as for convenience of proving that the marriage between her and Datuk Hakim is valid. Should Madam Azura do not seek registration of marriage, she will have to find the imam and witness of her marriage as a proof of marriage accord to Hukum Syarak.

Besides that, the 52nd Conference (exchanging views) of the Fatwa Committee of the National Council of Islamic Religious Affairs Malaysia is held on 1st July, 2002 has discussed the run-away-Marriage to Southern Thailand. The Committee has decided that's Marriage outside the country is valid provided that's:

1. The Marriage fulfils the requirements of wedlock 2. The distance is more than two marhalahs 3. There is no court decision, preventing the woman from Getting married on legal Reason 4. Such a Marriage is solemnized by a judge Recognized guardian (appointed guardian) and the Marriage is solemnized in the area of Banjarmasin guardian has been appointed. 5. Islam recognizes value of sex and advocates marriage. Islam does not believe in celibacy.

The committee decision implied that as long marriage which is not legally registered is valid as long it fulfills Hukum Syarak requirements. To sum up, as long Madam Azura able to proof that the marriage is in accord with Hukum Syarak, it will be render legal under Islamic Family Law (Federal Territories) Act 1984. However, it is advisable that, she apply for registration of marriage through Malaysias court.

ii. Whether there is business partnership between Madam Azura and Datuk Hakim?

The paramount principle in Islamic law on business is honesty and fair dealing. The Muslim business person should therefore be a person of high moral values who would not set out to exploit others. Muslims should conduct their business activities in accordance with the requirements of their religion to be fair, honest and just towards others. In the Hadith there are many statements of the Prophet concerning the necessity for honesty and fair dealing in trade. For example there is one Hadith says:

A trustworthy and an honest and truthful businessman will rise up with martyrs on the day of Resurrection.18

There are many forms of Islamic business organization. Two or more persons may combine to carry on business on condition that the capital and profits will be shared among them. Such a combination is called partnership in contract (shirakah-aqd) as distinguished from partnership in property or joint ownership (shirakah-milk). It is of the essence of a contract of

18

Ibn Majah quoted in Abdur Rahman I Doi, Shariah: The Islamic Law(1984),p350

partnership that each partner should have a share in the profits so that if one is to be paid a fixed remuneration he will not be deemed a partner, it would be regarded as fasid or vitiated.19

Islamic business enterprises can be placed into two major categories. The first is Ijarah or wage-rent enterprises. It is a form of wage-rent enterprises, based on ijarah(hire), are those in which the person with capital hires labour for a specific job or tie and at a fixed wage. The financier receives all profit and is responsible for all losses. Such an enterprise may be arranged by a sole proprietor, or as a partnership (shirakah). The second is profit-sharing enterprises. These can be concluded in agriculture (share-cropping), horticulture or trade according to the traditional scholars. The majority of modern jurists agree that this principle can be extended to industrial production.

Besides that, many enterprises are carried on through partnerships. There are a number of different forms of partnership recognized by Islamic law. First is Shirkah al-inan (limited parnership). In this kind of partnership, partners contribute capital, property and/or labour. Profits and losses are shared in an agreed manner. The difference between this and other forms of partnership is that each partner is only the agent and not a surety for his co-partners, and so a partner is not liable for a debt contracted by his co-partners and is only able sue someone with whom he himself is contracted.

The second type of partnership is Mudaraba or qirad (dormant partnership). A qirad is a contract whereby one person (the dormant partner) gives funds or property to another on the basis that the lender will share in the active partners profits in a proportion agreed in advance. If there is a loss they share the loss proportionally too, but the liability of the person who has provided the capital is limited to the amount of that capital. The third type is Musyarakah (Joint Partnership) whereby when two or more people combine their resources to invest in an enterprise, a musharakah partnership is formed according to Islamic law. All parties have the

19

Islamic Law and Society by Muhammad Moinuddin Khan, p60

right to share in decision-making and profit-making. Losses are borne in proportion to capital subscribed.

There are various categories of musyarakah namely Shirkat al-mulk whereby it is a Joint ownership of property without joint exploitation of capital, as when people merely share ownership of an asset, Shirkat al-Aqd whereby two or more persons combine to carry on a business in partnership with profits to be shared. All partners may contribute some capital and labour or services and Shirkat al-Wujuh whereby this is a credit partnership which purchases commodities on credit and resells immediately. Profit is distributed in an agreed ratio.

In the present case, the business relationship between Madam Azura and Datuk Hakim is partner. Their form of partnership under Islamic law is Musharakah which is joint partnership. That is because Datuk Hakim used to say to Madam Azura that he wants her to be his partner for his business because she is capable in running a business and he also promised to Madam Azura that all the profits from their business will be divided equally between them. Besides that, they also named their company as AZHA which is the combination of both their names. So that is obvious that they run their business together as partnership. In a joint partnership (Musharakah), the principle is all parties have the right to share in decision-making and profit-making. Thus, Madam Azura is entitled to claim half the profit from their business as what Datuk Hakim had promised to her at the beginning. Moreover, in Islamic law, the paramount principle in Islam business is honesty and fair dealing. So, since Datuk Hakim had promised to Madam Azura that the profits from their business will be divided equally between them so he needs to be honest and fair.

iii. Whether Madam Azura can claim for matrimonial property?

One of the objections leveled against the Islamic Law of divorce is that mans m ere pronouncement of the word divorce throws the woman out of his house and she finds herself

helpless, at the mercy of the society. This objection is very old and carries little weight. But it is repeated again and again as if it were a great challenge to the Islamic Shariah which has nothing to say in its support. Those whose main objective is to hurl stones of objections only at the opponent, without ever listening to what he says, can never own their weakness and no explanation can satisfy them.

In their opinion, the highest punishment that must be imposed on the person guilty of divorcing his wife is that he should be compelled to go on paying her maintenance charges lifelong. After entering the tie of wedlock the woman devotes her time to meet the wide-ranging demands of the conjugal life, applying her abilities and energies to it. In return for this man undertakes the responsibility of her maintenance.

Harta sepencarian is defined as property jointly acquired by the husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syarak 20. Harta sepencarian rests upon legal recognition of the part played by a divorce spouse in the acquisition of the relevant property and in improvements done to it. It is due to this joint effort or joint labour that a divorced spouse is entitled to a share in the property. The issue regarding harta sepencarian only arises when a divorce occurs, lifetime divorce or divorce upon death.

The conceptual basis under Islamic Law for the application of harta sepencarian in Malaysia can be observed from the following cases. Claims for harta sepencarian arise most frequently in applications for summary distribution of small estates under the Small Estates (Distribution) Act 1955 and the practice is to regard a claim for harta sepencarian as one of the factors to be considered in attempting to formulate an agreed scheme of distribution. Such agreed scheme very often give full effect to the claim. In the case of Haji Ramah v Alpha & Ors21 it was

20

Islamic Family Law (Federal Territories) Act 1984, s 2. Under s 2 of the Terengganu Administration of Islamic Law Enactment 1955 a more comprehensive definition is found; it states that harta sepencarian is defined as the earnings, or the property acquired, as a result of joint labour of two spouses and inclu des the income derived from capital which is itself the result of joint labour. 21 (1924) FMSLR 179

held that the widow was entitled to one-quarter of the value of land which she had helped to cultivate as upah or compensation for work done in addition to her quarter-share in the estate.

Although the Resolutions of the Perak State Council in 1907 referred only to claims for harta sepencarian by a divorced wife, Raja Sri Chulan did express the view that the widow obtained only what she was entitled to under the law of inheritance in case of her husbands death, losing her claim to what she had earned during marriage. However, in Re Elang, Deceased22, it was held that in Perak River villages, the property acquired during a marriage was divided between the parties on divorce or on the death of either spouse. If the wife assisted in the actual cultivation she could claim one-half of the property, otherwise her share was smaller. In Pahang, the Committee of Chiefs and Qadis gave their opinion in 1930 that a woman could claim harta sepencarian on divorce or on the death of her husband.23 In the Johore case of Wan Junaidah v Latiff24 the plaintiff who had been divorced by the respondent claimed, inter alia, for a sale of harta sepencarian, being half of the proceeds of the sale of the lans which was jointly acquired to the amount of RM57, 130. The learned Judge held that the plaintiff was entitled under the Islamic law to the share of the harta sepencarian. Based on the cases above, in our present case it is very obvious that Madam Azura is definitely has the rights to claim what she deserves. The proof is after she married with Datuk Hakim, he offered her to be his partner of their joint business and the profits will be divided equally between them.

Madam Azura had accepted his offer and she also spent most of her time to handle local business to ensure that everything went smoothly. Undeniable that, Madam Azura is running the business with all her heart and all her might. Even though Datuk Hakim refuses to share half of the profits of their business with Madam Azura, he is also entitled to pay maintenance for her as he is the one who divorce her. So Madam Azura does not only has the rights to claim half of the profits of their joint business but also entitle to claim maintenance fees from Datuk Hakim if he insisted to divorce with her.

Taylor, Malay Family Law p48 Ibid, p73 24 (1988) 8 JH 122

iv. Whether Madam Azura able to obtain custody and guardianship of her son and daughter?

In this case , the rights to custody and guardianship of the child is also discussed . Datuk Hakim has expressed his wish to obtain custody and guardian ship of the son , Daniel . Madam Azura objected to this and said that both custody and guardianship of the two children including another daughter , Dania . Daniel is currently 8 years old and Dania is 6 years old . In Islamic family law , the general rule is that the mother will have priority over the children after divorce . This is the rights of the mother and these rights can only be terminated when there is a reason which terminates her rights to custody and guardianship of the child or when the child has reached the age where he or she is capable of making a decision on whether he or she wants to follow the father or the mother25.

Evidence of the mother having priority regarding rights of the custody of a child over the father can be seen in the Hadith of Rasulullah SAW . It is narrated that once there was a woman who was divorced from her husband and during their marriage they had a child which is a boy . The husband wanted to take the child away from her to care and raise the child . The woman came to Rasulullah to seek advice and said :

"O Messenger of Allah ! This is my son ; for him my womb was a vessel , my breast a drink , and my lap a bedding , and his father has divorced me and wants to take him away from me ."

After listening to her , Rasulullah SAW said :

25

Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi .

"You have more right to keep him unless you get married ."26

Another reason why the mother has priority of the custody of her children is that the woman is deemed to be more able to care for the children as they are more patient with the child and has more time to take care of child . The mother also has characteristics which are more suitable in raising a child , such as being more sensitive towards the needs of the child , more soft and loving to the child and are close to their child since birth27. It is narrated that Abu Bakar told Umar :

"The mother is more sensitive , more subtle , more loving , more friendly , better and more caring towards her children . That is why the mother has more rights towards her children , as long as she is not married yet ."

By looking at the narration given , the rights to custody of the child will be for the mother , which is Madam Azura , but there is another rule which must be followed to determine who shall be the one who is entitled to rights of custody of the child . The rule is that if the child has reached the age of mumaiyiz , which is the age of 7 , he or she is entitled to have the freedom to choose whether he or she wants to follow the mother or the father and the child will be kept by whoever he or she chooses , which is the view of most of the Prophet's companians and also view of Imam Shafi'i28 . This rational is based on the Hadith of Rasulullah SAW :

"Whereas Rasulullah SAW has asked a child who has reached the age of mumaiyiz to choose whether to stay with the father or the mother ."

It is narrated by Abu Hurairah :

"A woman approached Rasulullah SAW for advice and said : "O Rasulullah ! My husband wants to take away my child from me whereas he is the one who fetches water for me from the well and
26

Narrated from Abdullah bin 'Amr ibn al-'As , transmitted by Ahmad and Abu Dawud with a good chain of transmission . 27 Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi . 28 Fiqh of Muslim Family , by Hassan Ayyoub .

he is very useful to me" . Rasulullah SAW then asked the child :"This is your father and this is your mother , choose whoever you wish to follow ." The child then choose his mother and so the mother took her child away ."29

In this narration, it shows that the child who has reached the age of mumaiyiz has the right to choose to follow either the mother or the father.

Applying the authority stated, in this case Daniel is aged 8 years old and therefore he has the right to choose whether he wants to follow Datuk Hakim or Madam Azura and whoever he wishes to follow and the one he choose will be the one to have rights of custody over him . However , for the case of Diana , since she is only 6 years old of age , therefore she is deemed not fit to make a decision by herself since she is has not reached the age of mumaiyiz and the custody of Dania is confirmed to be the right of Madam Azura .

Although the situation regarding custody of the children is favourable to Madam Azura , she must still make sure that she does not lose her rights over custody of both her children . In Islamic family law , it is possible for the mother to lose custody of her children disregarding the fact that the children has reached the age of mumaiyiz or not . For example , if the mother remarries to another person , then her rights of custody over her children will be terminated . This is explained in the Hadith of the Rasulullah SAW as narrated by Abdullah bin 'Amr ibn al'As . He narrates that Rasulullah SAW was approached by a woman who was divorced from her husband and they had a child . The husband wanted to take the child away to care for the child . She told Rasulullah SAW :

"O Messenger of Allaah, my womb was a vessel for this son of mine and my breasts gave him (milk) to drink, and my lap was a refuge for him, but now his father has divorced me and he wants to take him away from me. The Messenger of Allaah (peace and blessings of Allaah be upon him) said to her: You have more right to him so long as you do not remarry.30

29 30

Narrated by Abu Daud Transmitted by Abu Dawud

According to this Hadith , as long as Madam Azura is not maried to another man , then her rights of custody over Daniel and Diana will not be terminated .

To decide who is entitled to get the right of custody and guardianship, the Islamic Family (Federal Territories) Act 1984 needed to be referred. Section 81 (1) of the Act provides that the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. This means that Madam Azura should be the 1st person to be considered in having the right of custody even after the marriage has been dissolved. However, the right of custody will be passed to other people stated under the Act if the court opines that the mother is disqualified under the Islamic law from having the right. 31 If Madam Azura is not qualified, Datuk Karim will be the second person to get the right after the maternal grandmother of their children. Other than that, the man who wants to get the right of a daughter must be a muhrim who stands to her within the prohibited degrees of relationship.32

In order to be entitled to the right of custody, there are certain requirements needed to be fulfilled. Section 82 states that a person to whom belongs the upbringing of a child, is entitled to the right of custody if she is a Muslim, having sound mind and not below an age that qualifies her to bestow on child the care, love and affection that the child may need. It also provides that she must have good conduct from the standpoint of Islamic morality and lives in a place where the child may not undergo any risk morally or physically. If Madam Azura has fulfilled the above requirement, then she can ask for the right of custody.

According to section 84 (1), the right of custody of a child will terminate when a son is 7 years old. In this case, Daniel is now 8 years old and he has reached the age of discernment, so Madam Azura cannot get the right of custody of Daniel. However, the child who has reached the age of discernment can have the choice of living with either of the parents,33 so Daniel can choose to live with Datuk Hakim or Madam Azura. However, the right of custody of Dania can be granted to Madam Azura since she hasnt reached the age of nine years as required by section 84 (1).
31 32

Section 82 (2), Islamic Family Law (Federal Territories) 1984 Section 82 (3), Islamic Family Law (Federal Territories) 1984 33 Section 84 (2), Islamic Family Law (Federal Territories) 1984

Apart from that, Madam Azura must comply with certain conditions if she is given the right of custody. Referring to section 83, the right can be set aside if she marries with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right will revert if the marriage is dissolved or neglect the child cruelly. The section also provides that the right is lost by a womans gross and open immorality, abjuration of Islam or changing her residence to prevent the father from exercising the necessary supervision over the child except that a divorced wife may take her own child to her birth place. Therefore, Madam Azura must follow these rules in order to keep her right of custody.

The welfare of a child is the most important factor to be considered in deciding the right of custody, as laid down in the case of Myriam v Mohamed Ariff.34 This was a case where a mother applied to the court for the custodial right of a 8 year old daughther and a 3 year old son. The court has decided that according to Islamic principles, the right should be given based on the childs welfare to ensure a better life for him. The ability to take good care of the child and raise a family is also considered for the sake of the child, so the right will be given if the parent can fulfill such conditions. The custodial right of that 8 year old daughther was granted to her father because he has stable income and was able to provide a good growing environment for her. So Madam Azura has to look at these factors if she intends to get the custodial right. Abdul Rahman Bin Shafiee v Hasma Bte Senawi35 is another case relating to the right of custody where the appellant had filed an application to the court to get the custodial right of his 9 year old son but he was failed in his action. His son was living a good life under the custody of his aunty and staying happily with his cousins. Factors to be taken into account are the financial position, moral conduct and ability to give a child love and affection. The son had attained the age of discernment, he was given choice to choose who he wanted to live with, and the fact showed that he could live well with his aunty family so the right was not granted to the father. In the present case, Datuk Hakim is spending most of his time in Australia, so his ability to take

34 35

[1983] 1b MLJ 40 [1998] 6 MLJ 618

care of his children is in question. If he is not able to do so, Madam Azura is having a good chance to get the right of custody. In another unreported case,36 a father applied for the custodial right of his three children after the divorce and he was given the right of custody of his eldest and second children. The eldest child who had attained the age of discernment chose to live with his father without any influence and doubt, therefore the court granted the right to the father. Even though the second child hadnt attained the age of discernment, but the child had been living well with his father for a long time, the court found that it was more appropriate to grant the right to the father despite the right should be given to the mother. The custodial right of the youngest child was granted to the mother because the child was under her custody all the time and hadnt reached the age of discernment. Therefore, Madam Azura is possible to get the custodial right of her daughter based on the law and the fact that she is still very young to get more care from her mother. If refer to this case, the living condition and the childs welfare will be crucial factors to decide the right of custody of Daniel since he is given the option to choose whether he wants to live with his mother of father.

Conclusion

Based on our argument, we submit that the marriage between Madam Azura and Datuk Hakim is valid as long it is in accordance to Hukum Syarak. We advise Madam Azura to seek registration of their marriage in Malaysia. As for partnership in business, the business conducted by Datuk Hakim and Madam Azura is musyarakah because Datuk Hakim used to say to Madam Azura that he wants her to be his partner for his business because she is capable in running a business and he also promised to Madam Azura that all the profits from their business will be divided equally between them.

Therefore Madam Azura able to obtain half of the profit made from the business. Even if Madam Azura fail to proof that there is partnership between her and Datuk Hakim, she still able to claim for maintenance as Madam Azura had accepted his offer and spent most of her time to
36

Mal Case No: 04100-028-0031-2009, Shariah High Court, Malacca

handle local business to ensure that everything went smoothly. Undeniable that, Madam Azura is running the business with all her heart and all her might. As for custody and guardianship of Dania and Daniel, Madam Azura most probably will get custody of her daughter base on quran, sunnah and decided cases in Malaysia. Daniel will have choice to choose whom to follow as he is 8 years old. However, it is still arguable that Madam Azura able to get custody and guardianship of Daniel due to his father irresponsibility toward his children whereby Datuk Hakim always at oversea, not mentioning that Datuk Hakim travel to Australia to accompany his young girlfriend, Amanda Issabella who work for him in AZHA. Datuk Hakim is not fit to be a father. He might be fit in term of financial aspect, but he is not fit in other aspect such as social and morality.

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Narrated from Abdullah bin 'Amr ibn al-'As , transmitted by Ahmad and Abu Dawud with a good chain of transmission . Nassir, Jamal, J, The status of women under Islamic Law (London: Graham & Trotman, 1990), p. 28. Niyazee, Imran Ahasan Khan. Islamic jurisprudence (Ul al-Fiqh) (n.p, 2003), p. 248. Pawancheek Marican, Islamic Inheritance Laws in Malaysia 2nd Edition, Malayan Law Journal Sdn Bhd 2008 Qudsiyyat al-Zawj f al- Sharah wa al-Qnn published in Jardah al-Jamhr al-arabiyyah of 30/ 3/2005 no 11802 Salmi Bahrom, Perkongsian dan Pengongsian Untung dalam Hukum Islam 1991 Status of Women in Islamic Society, Afsar Bano, 2003 Tanzl al-Rahman, A Code of Muslim Personal Law, (Karachi: Islamic Publisher, (1984), Vol. 2, p. 88.