NAMA: VEASHA KASTURI KESVEREN

NO. MATRIC: A183742

TUGASAN: TUTORIAL ISLAMIC FAMILY LAW 1

PENSYARAH: DR MUHAMAD HELMI MD SAID

1. What is marriage to your understanding, compare it with Islam and why is it

important in Islam? Discuss the types of marriages that existed in the pre- Islamic
period. Why does Islam prohibit such unions?

To my opinion marriage is a contract made between two individuals who agree to live a
relationship together in accordance with the law. In Islam, marriage is seen as a solemn
covenant between Allah s.w.t. and the human parties and as well as between these parties
themselves. It is also defined as a contract leading to permissibility of having sexual
relationship using the term nikah/ tazwij. There are five element which validates a marriage
according to the hukum syarak, which are, the presence of a bridegroom (az- zauj), a bride
(az- zaujah), guardian (wali), witnesses (syahidan an-nikah), and the pronouncement of offer
and acceptance (as- sighah ijab wa qabul). In the kitab of Sunan Ibn Majah, prophet Nabi
Muhammad S.A.W. has declared that, “Marriage is part of my sunnah, and whoever does not
follow my sunnah has nothing to do with me. Get married, for I am heartened by your great
numbers before the nations (of other Prophets).”

‫ْس ِمنِّي َوتَ َز َّوجُوا فَإِنِّي ُم َكاثِ ٌر بِ ُك ُم األُ َمم‬

َ ‫النِّ َكا ُح ِم ْن ُسنَّتِي فَ َم ْن لَ ْم يَ ْع َملْ بِ ُسنَّتِي فَلَي‬

The main objective of marriage in Islam is to preserve human race, sanctioning

thereby sexual relations between two members of the opposite sexes. It is a contract made for
legalization for intercourse and procreation of children and to increase the Islamic population.

There are several pre- existing marriages in Islam where only one is widely used and
most of it are prohibited. Firstly is, Zawaj Al- Dayzan. This is a marriage between a widow
who had lost her husband who has the rights to get married to her own son. This marriage
also enables the son to be the sole proprietor of the property of his wife @ mother. However,
this type of marriage is prohibited in Islam as it is stated in surah An- Nisaa’, sentence 19.

ِ َ‫ْض َمٓا ٰاتَ ْيتُ ُموْ ه َُّن آِاَّل اَ ْن يَّأْتِ ْينَ بِف‬
ۚ ‫اح َش ٍة ُّمبَيِّنَ ٍة‬ ِ ‫ضلُوْ ه َُّن لِت َْذهَبُوْ ا بِبَع‬ ُ ‫ٰيٓاَيُّهَا الَّ ِذ ْينَ ٰا َمنُوْ ا اَل يَ ِحلُّ لَ ُك ْم اَ ْن ت َِرثُوا النِّ َس ۤا َء كَرْ هًا ۗ َواَل تَ ْع‬
‫ف ۚ فَا ِ ْن َك ِر ْهتُ ُموْ ه َُّن فَ َع ٰ ٓسى اَ ْن تَ ْك َرهُوْ ا َش ْئـًًٔ~ا َّويَجْ َع َل هّٰللا ُ فِ ْي ِه خَ ْيرًا َكثِ ْيرًا‬
ِ ْ‫َوعَا ِشرُوْ ه َُّن بِ ْال َم ْعرُو‬
Meaning of this verse is that, “you who believe (who wish to reach Allah before death)! It is
not lawful for you to take women (whose husbands have died and who are your near
relatives) as heritage against their will, and do not straiten them in order that you may take
part of what you have given them (Mahr), unless they are guilty of manifest indecency. And
treat them kindly. Then if you dislike them, it may be that you dislike a thing while Allah has
placed abundant good in it.”

Secondly is Zawaj al- Mut’ah. This marriage has a specific period of validation. Once the
determined period is finished, hence the marriage is dissolved. It is also known as “pleasure
marriage” or “temporary marriage”. The prophet Nabi Muhammad S.A.W is against this type
of marriage although it was allowed during the war era.

The third type of marriage is Zawaj al- Badal, where wives are exchanged with the consent of
both husbands. This marriage does not involve presentation of mahar, which is also known to
be a gift made by the bridegroom for the bride for her exclusive property, as a mark of
respect for the bride and recognition of her independence.

The next is Zawaj al- Sighar, where man are given a choice to request for the wives or cousin
sisters of another man, in return of their own wives or cousin sisters. This marriage is also
prohibited by Nabi Mohammad S.A.W as it is not in accordance with the objective of
betrothal in Islam. As referred to surat ar- Rum sentence 21,

ٍ ‫ق لَ ُك ْم ِّم ْن اَ ْنفُ ِس ُك ْم اَ ْز َواجًا لِّتَ ْس ُكنُ ْٓوا اِلَ ْيهَا َو َج َع َل بَ ْينَ ُك ْم َّم َو َّدةً َّو َرحْ َمةً ۗاِ َّن فِ ْي ٰذلِكَ اَل ٰ ٰي‬
َ‫ت لِّقَوْ ٍم يَّتَفَ َّكرُوْ ن‬ َ َ‫َو ِم ْن ٰا ٰيتِ ٖ ٓه اَ ْن خَ ل‬

This verse declares that, among His signs is that He created for you mates of your own kind,
that you may incline to them and feel secure in them, and He made between you love and
affection. Indeed, in that are signs for a people who give thought.

Next is Zawaj al- Istibd’a where the marriage allows the wife of a man to have sexual
intercourse with another man in accordance to get pregnant and give birth. The first husband
will not be allowed to touch his wife until she delivers the child of her second husband. This
child will be seen as a gift from the one man to another. Usually, this type of marriage is
conducted when the husband is infertile hence disabling procreation.

Moving on, is Zawaj al- Zainah. This marriage is conducted when a woman has been
enslaved from the war, hence she has no other option than to accept the marriage offer made
by her hostile. There is no mahar required in this type of marriage.
Finally, there is Zawaj al- Ba’ulah, the only type of marriage accepted in Islam and is widely
used until today. This marriage requires mahar and ijab qabul (offer and acceptance) to
validate a marriage. These are importance to carry the reputation of the bride to be. Nabi
Mohammad S.A.W. and Siti Khadijah were also married in the same way.

2. Dollah has eyes for Jenab, whose husband has just passed away. He then went to see
her and said the following, “I think it is most difficult to live alone and bring up little
kids on one’s own without the presence of a partner. I myself, as a divorcee finds
difficulty living alone. That is why I think I would like to find someone who can
spend her life with me but of course I doubt there is anyone who is interested in this
old man.” After listening to this, Jenab understood that Dollah is interested in her. She
replied, “If you are really serious of looking for a partner, I am available. “Dollah then
replied, “Praises to Allah who has fulfilled my prayer” The next day, Dollah sends his
family to see Jenab. They brought along many gifts including food, clothings and a
gold ring. Both parties agreed that marriage will take place as soon as possible. Six
months later, an old friend of Jenab’s, Mat decided to visit her. He then said, “I have
always loved you and now that you are free, why don’t we marry? “He gave her a
diamond ring and Jenab automatically accepted his proposal. Jenab sent an ‘sms’ to
Dollah saying that their wedding is off. Jenab and Mat then got married. Dollah is so
furious. He had spent a lot of money on Jenab. For instance, besides the gifts during
the bethrotal, Dollah had also given Jenab a gold necklace, a mobile phone and money
to spend amounting to RM5000. He had also spent about RM3000 when he paid for
the deposit to the food caterer and the wedding boutique. Dollah feels humiliated and
hurt. He feels that Jenab and Mat have been unfair to him. He now seeks seeks your
advice of his rights under the law. What can he do?

Issues:

a) Whether the marriage proposal made by Mat is valid or not?

b) If yes, can Dollah seek for legal rights?

a) According to Surah al- Baqarah verse 235, a part of it states that a betrothal can’t be
made secretly unless in a legally manner. A betrothal is not a religious obligation but is based
on customary practices. According to jumhur ulama, it is illegal/ haram to propose a woman
who has been already betrothed unless the first has rejected her. According to Ukhbah Ibn
Nafi, Nabi Muhammad S.A.W. stated that, “a believer is a brother to another. It is not
permitted to a believer to propose to a woman whom his brother has proposed until his
brother gives up his suit. However, if the woman accepts the second proposal, hence it is
permissible is the second guy is more religious and compatible than the first one.
Nevertheless, if both men are equally religious, thus the second proposal is not permissible.

Therefore, in the present case, the woman has accepted the second proposal and Mat wasn’t
aware of the pre- existing proposal made by Dollah. Taking Dollah’s age into consideration,
it is permissible for the second proposal to take place as Mat is more compatible with Jenab.
Hence to my opinion, the second betrothal by Mat to Jenab is valid.

b) Although the betrothal by Mat is valid, Dollah has suffered intense humiliation and a great
loss of financial expenditure. S. 15 of the Islamic Family Law (federal territory) Act 1984
states that if any person has, either orally or in writing, and either personally or through an
intermediary, entered into a betrothal in accordance with Hukum Syara', and subsequently
refuses without lawful reason to marry the other party, the other party being willing to marry,
the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and
to pay whatever moneys have been expended in good faith by or for the other party in
preparation for the marriage, and the same may be recovered by action in the Court.

According to the Hanafi School, if the gifts are still intact and their characters remain
unchanged, or have not been consumed nor destroyed, the giver can request for the return of
the gifts, if the breach of engagement is committed by the other party. Meanwhile, the Maliki
School is of the view that if the breach is committed by the man, he has no right to seek the
return of the gifts given by him. In contrast, if the woman is the one in breach, the man would
have the right to request for the return of the gifts regardless whether the gifts are still in
existence or not. If the gifts have been damaged, the woman has to pay their values.

According to S. 15 of the Islamic Family Law Act 1984, few elements can be deduced for
one to allow the default to be liable for compensation purposes which are,

a) There must be an oral/written betrothal agreement/promise

b) The agreement is entered into by the parties personally or by an intermediary
c) There is a breach of agreement by one party upon unlawful reasons
d) The party liable should be liable to return gifts
e) The party in breach is also to pay any expenses that have been incurred in the
preparation of the marriage
f) Such gifts and expenses may be recovered by the action in the Syariah Court.
In the case of Aishah v Jamaluddin (1978) 3 JH 104, the male party who had breached the
engagement was ordered by the Court to pay compensation as agreed by the parties in the
betrothal agreement which amounted to a sum of RM 800 for marriage expenses, RM 25 for
clothes, RM 400 for house repair in preparation for the wedding, and also the ring that was
given by the man to the woman was allowed by the Court to be kept by the woman.

In the case of Nafsiah v. Abdul Majid, the plaintiff sued the defendant under the breach of
the marriage promise. The defendant argued that the contract was void as the plaintiff was
well aware of his marital status on the time of the promise. However, the court held that,
since the defendant was allowed to marry more than one, hence the contract made is valid
and the plaintiff was entitled to damages which was assessed at RM 1,200. 00. In this case, it
was also commented that, as far as the breach of marriage within Muslims is concerned, there
will be no jurisdiction of the civil courts.

It is also argued in the case of Salbiah Othman v. Haji Abdul Ghani, where the defendant
called of the engagement prior to the wedding date. The plaintiff sought for damages under
two main grounds which are: -

a) Claim for damages due to humiliation at RM 200,000.

b) Compensation for the expenses amounting to RM 9,677

The Syariah Court decided that the defendant without unlawful reason had breached the
promise of marriage but dismissed the claim for damages and granted the claim for expenses
as amounted.

In the case of Amrina Rusyada bt. Mohamad Safir v. Mohamad Shukri b. Ismail, the
Syariah Lower Court of Terengganu granted the plaintiff a compensation of RM 1734.50 to
be paid by her ex- fiancé who is a religious officer. Both parties agreed to get married on a
date prior but her ex- fiancé’s parents postponed the wedding to December. However, the
respondent’s mother called off the wedding without giving lawful reasons. The appellant’s
family moved to another village due to humiliation. The respondent’s appeal was dismissed
and both parties bore costs.

The case of Mohamad Azla b. Haji Kamaruddin v. Mokthar b. Hashim & Anor 2007,
contradicts the above cases, wherein the court held that the claim for damages for humiliation
is not provided for in the law. In this case, the defendant broke off the engagement on the
ground that the appellant’s relative had made an allegation that she was not a virgin. The
applicant argued under the ground of humiliation and the court dismissed the claim for
general humiliation as the judge was in an opion that the injured feelings and mental anguish
are feelings that dwell in a person’s heart and shall remain as a secret. Hence, the court’s
decision can’t be made based on the secret or something intangible, concluding humiliation
can bore grounds as it is not provided in law.

Scrutinizing the case in hand, Dollah had given Jenab a gold necklace, a mobile phone and
money to spend amounting to RM5000. He had also spent about RM3000 when he paid for
the deposit to the food caterer and the wedding boutique. S. 15 of the Islamic Family Law
(Federal Territory) 1984 Act, states that the party who breached the marriage promise can be
held liable for the expenses made by the other party who is still considerate about the
marriage. In the case of Amrina Rusyada bt. Mohamad Safir v. Mohamad Shukri b. Ismail
and Mohamad Azla b. Haji Kamaruddin v. Mokthar b. Hashim & Anor 2007, it is clearly
stated that humiliation cannot be a ground used to claim for the breach of a marriage promise
as it is not provided under the law hence it is not advisable for Dollah to claim damages under
the ground of humiliation. However, Dollah can apply under the provison of S.15 as he had
already spent for the marriage preparation and has given gifts for Jenab. Thus, with the
supporting cases of all the listed cases above along with the provision in hand, it is utmost
advisable for Dollah to claim compensation under the grounds of breach of the marriage
proposal.

3. Ah Moi is an 18 year old Chinese girl. She is in love with Mat and they wish to be
married. Mat is a 25 year old Muslim teacher. Ah Moi plans to embrace the Islamic
faith by using the name of Aminah Binti Abdullah. The couple are very intimate and
this worries them if they are not married soon. Ah Mooi’s parents do not agree with
the marriage. According to them, she does not have the right to convert to Islam nor
marry without their consent. This is because Ah Moi still has a legal guardian. Mat
plans to give Ah Mooi a holy Quran as her mahar. Mat has also asked two of his
friends to become witnesses to the marriage. They are, Karim a teacher, who is deaf
and mute and Muhammad @ Muthu a newly converted Indian Muslim. In your
opinion can a valid marriage according to Hukum Syara’ take place? Explain.

Issues:

a) is it legitimate for a Muslim to marry a non- Muslim?

b) Are the witnesses requirements met as accordance with Hukum Syara’?
Surah al- Baqarah verse 221 states that,

‫ت َح ٰتّى ي ُْؤ ِم َّن ۗ َواَل َ َمةٌ ُّم ْؤ ِمنَةٌ َخ ْي ٌر ِّم ْن ُّم ْش ِر َك ٍة َّولَوْ اَ ْع َجبَ ْت ُك ْم ۚ َواَل تُ ْن ِكحُوا ْال ُم ْش ِر ِك ْينَ َح ٰتّى ي ُْؤ ِمنُوْ ا ۗ َولَ َع ْب ٌد‬ ِ ‫َواَل تَ ْن ِكحُوا ْال ُم ْش ِر ٰك‬
‫هّٰللا‬ ٰۤ ُ
ِ َّ‫ار ۖ َو ُ يَ ْدع ُْٓوا اِلَى ْال َجنَّ ِة َو ْال َم ْغفِ َر ِة بِا ِ ْذنِ ٖ ۚه َويُبَيِّنُ ٰا ٰيتِ ٖه لِلن‬
‫اس لَ َعلَّهُ ْم‬ ِ َّ‫ك يَ ْد ُعوْ نَ اِلَى الن‬َ ~ِ‫ول ِٕٕى‬ ٍ ‫ُّم ْؤ ِم ٌن َخ ْي ٌر ِّم ْن ُّم ْش ِر‬
‫ك َّولَوْ اَ ْع َجبَ ُك ْم ۗ ا‬
ࣖ َ‫يَتَ َذ َّكرُوْ ن‬

Do not marry the polytheist women, unless they come to believe (in Islam); a Muslim slave-
girl is better than a polytheist woman, even though she may attract you; and do not give (your
women) in marriage to polytheist men, unless they come to believe; a Muslim slave is better
than a polytheist, even though he may attract you. They invite to the Fire when Allah invites,
by His will, to Paradise, and to forgiveness. He makes His verses clear to the people, so that
they may heed the advice.

A musyrik person is someone who practices a religion without a divine book. This person is
allowed to be married only if they embrace Islam.

In the case of Abdul Razak v. Maria Menado, the wife at the time of marriage was a
Christian and it was held that their marriage was void because the defendant was a Christian
and her ancestors had converted into Christianity after the rise of Nabi Mohammad S.A.W.
Hence she is not a Kitabiyyah. Under S.10 of the Islamic Family Law (Federal Territory)
Act 1984,

(a) No man shall marry a non-Muslim except a Kitabiyah.

(b) No woman shall marry a non-Muslim.

S.2 of the Islamic Family Law (Federal Territory) Act 1984 interprets the word
“Kitabiyyah” as: -

(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.

In the case of Azizah Mat v. Mat Saleh, the applicant was engaged and was intended to be
married. The situation is Mizan wants to marry Elizabeth but Elizabeth is a non- Muslim and
the requirement is for her to embrace Islam by performing Syahadah. Only after she converts
she is permitted to marry Mizan. For the condition where there must be a consent of wali.
According to a Hadith,Aishah reported that Prophet SAW said, the marriage of a woman who
marries herselfwithout the consent of her guardian is void. As Elizabeth’s family is non-
muslim, herrguardian or her father cannot be her wali mujibir. Thus, according to Section
7(2) of the Islamic Family Law (federal territory) Act 1984, as Elizabeth has no wali from
nasab in accordancewith Hukum Syarak, the marriage may be solemnised only by the wali
Raja. Section 2, defined Wali Raja as a wali that authorised by the YDPA or by the Ruler to
give away inmarriage a woman who has no wali nasab. According to Kelantan Islamic
Family Law Enactment, Fourth Schedule,reasons for transfer from wali nasab is when wali
nasab is not available as her father is notMuslim. So Elizabeth has to appoint Wali Raja to
solemnize their marriage. As conclusion the marriage was valid as it met all its requirements.

Surah al- Baqarah verse 282 explains that,

ٓ
ُ ‫ب َك َما َعلَّ َمهُ هّٰللا‬ َ ْ‫ٰيٓاَيُّهَا الَّ ِذ ْينَ ٰا َمنُ ْٓوا اِ َذا تَدَايَ ْنتُ ْم بِ َد ْي ٍن اِ ٰلى اَ َج ٍل ُّم َس ّمًى فَا ْكتُبُوْ ۗهُ َو ْليَ ْكتُبْ بَّ ْينَ ُك ْم َكاتِ ۢبٌ بِ ْال َع ْد ۖ ِل َواَل يَأ‬
َ ُ‫ب َكاتِبٌ اَ ْن يَّ ْكت‬
‫ض ِع ْيفًا اَوْ اَل يَ ْستَ ِط ْي ُع‬َ ْ‫ق َسفِ ْيهًا اَو‬ ُّ ‫ق هّٰللا َ َربَّهٗ َواَل يَ ْب َخسْ ِم ْنهُ َش ْئـًًٔ~ ۗا فَا ِ ْن َكانَ الَّ ِذيْ َعلَ ْي ِه ْال َح‬ ُّ ‫فَ ْليَ ْكتُ ۚبْ َو ْليُ ْملِ ِل الَّ ِذيْ َعلَ ْي ِه ْال َح‬
ِ َّ‫ق َو ْليَت‬
َ‫ضوْ نَ ِمن‬ َ ْ‫اَ ْن يُّ ِم َّل هُ َو فَ ْليُ ْملِلْ َولِيُّهٗ بِ ْال َع ْد ۗ ِل َوا ْستَ ْش ِه ُدوْ ا َش ِه ْي َد ْي ِن ِم ْن ِّر َجالِ ُك ۚ ْم فَا ِ ْن لَّ ْم يَ ُكوْ نَا َر ُجلَ ْي ِن فَ َر ُج ٌل وَّا ْم َراَ ٰت ِن ِم َّم ْن تَر‬
‫ص ِغ ْيرًا اَوْ َكبِ ْيرًا اِ ٰلٓى‬ َ ُ‫ب ال ُّشهَ ۤ َدا ُء اِ َذا َما ُد ُعوْ ا ۗ َواَل تَسْٔـَٔ~َ ُم ْٓوا اَ ْن تَ ْكتُبُوْ ه‬ َ ْ‫ض َّل اِحْ ٰدىهُ َما فَتُ َذ ِّك َر اِحْ ٰدىهُ َما ااْل ُ ْخ ٰر ۗى َواَل يَأ‬ ِ َ‫ال ُّشهَ ۤ َدا ِء اَ ْن ت‬
‫هّٰللا‬
‫ْس َعلَ ْي ُك ْم ُجنَا ٌح اَاَّل‬
َ ‫ض َرةً تُ ِد ْيرُوْ نَهَا بَ ْينَ ُك ْم فَلَي‬ ِ ‫ارةً َحا‬ َ ‫اَ َجلِ ٖ ۗه ٰذلِ ُك ْم اَ ْق َسطُ ِع ْن َد ِ َواَ ْق َو ُم لِل َّشهَا َد ِة َواَ ْد ٰن ٓى اَاَّل تَرْ تَاب ُْٓوا آِاَّل اَ ْن تَ ُكوْ نَ تِ َج‬
‫ق بِ ُك ْم ۗ َواتَّقُوا هّٰللا َ ۗ َويُ َعلِّ ُم ُك ُم هّٰللا ُ ۗ َوهّٰللا ُ بِ ُكلِّ َش ْي ٍء‬
ٌ ۢ ْ‫ض ۤا َّر َكاتِبٌ َّواَل َش ِه ْي ٌد ۗە َواِ ْن تَ ْف َعلُوْ ا فَاِنَّهٗ فُسُو‬ َ ُ‫تَ ْكتُبُوْ ه َۗا َواَ ْش ِهد ُْٓوا اِ َذا تَبَايَ ْعتُ ْم ۖ َواَل ي‬
‫َعلِ ْي ٌم‬

And call in to witness two witnesses of your men; yet, in case the two are not two men, then
one man and two women from among the witnesses you are satisfied with, so that (in case)
one of the two women should err, then either of the two should remind the other, and let the
witnesses not refuse whenever they are called (upon). And be not too loath to write it down,
(whether) it is small or great, with (Literally: to is term) its term.

The conditions for witnesses are that the witnesses must be:

a) Not fewer than two persons

b) Muslim
c) Person of sound mind
d) Past the age of puberty
e) Male
f) Persons who can hear, see and speak
g) Understand the requirements of sighah ijab and qabul
h) Just
Hence in the present case, the wedding taken place by Ah Moi and Mat have not met the
basic requirements of an Islamic marriage. Firstly is the requirement of Ah Moi being a
Muslim. As stated in the case of Azizah Mat v. Mat Saleh, the woman must convert into
Islam before she can be permitted to a Muslim boy. Secondly, the presence of a wali in
conducting the marriage. In this case, there was no presence of a wali and specifically only a
wali raja can conduct this marriage as Ah Moi has no wali nasab as her father is not a
Muslim. The witnesses present in the said marriage were a newly converted Muslim man and
a man who is deaf and mute. The newly converted Muslim man also holds a reasonable doubt
of the requirement of the understanding of sighah ijab and qabul in a marriage while a deaf
and mute person cannot be taken into account as a witness. Hence in overall, the marriage
between Ah Moi and Mat is not permissible under the Hukum Syarak as they have not met
the required conditions.