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    Muslim Marriage: Uif2612 - Islamic Family Law

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    Hui Yin Chin
    The document discusses Muslim marriage in Islam. It defines marriage as a religious sacred covenant and civil contract that legalizes sexual intercourse and procreation. Marriage is considered a virtuous institution in Islam, unlike other religions where celibacy is praised. There are five requirements for a valid marriage: the male and female parties, a wali (guardian), two witnesses, and the pronouncement of offer and acceptance. The roles and conditions of the husband, wife, and wali are also outlined, including requirements that they be Muslim and not prohibited from marrying.

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    Muslim Marriage: Uif2612 - Islamic Family Law

    Uploaded by

    Hui Yin Chin
    142 views38 pages
    The document discusses Muslim marriage in Islam. It defines marriage as a religious sacred covenant and civil contract that legalizes sexual intercourse and procreation. Marriage is considered a virtuous institution in Islam, unlike other religions where celibacy is praised. There are five requirements for a valid marriage: the male and female parties, a wali (guardian), two witnesses, and the pronouncement of offer and acceptance. The roles and conditions of the husband, wife, and wali are also outlined, including requirements that they be Muslim and not prohibited from marrying.

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    The document discusses Muslim marriage in Islam. It defines marriage as a religious sacred covenant and civil contract that legalizes sexual intercourse and procreation. Marriage is considered a virtuous institution in Islam, unlike other religions where celibacy is praised. There are five requirements for a valid marriage: the male and female parties, a wali (guardian), two witnesses, and the pronouncement of offer and acceptance. The roles and conditions of the husband, wife, and wali are also outlined, including requirements that they be Muslim and not prohibited from marrying.

    Copyright:

    © All Rights Reserved
    Download as PPTX, PDF, TXT or read online from Scribd
    Download as pptx, pdf, or txt
    142 views38 pages

    Muslim Marriage: Uif2612 - Islamic Family Law

    Uploaded by

    Hui Yin Chin
    The document discusses Muslim marriage in Islam. It defines marriage as a religious sacred covenant and civil contract that legalizes sexual intercourse and procreation. Marriage is considered a virtuous institution in Islam, unlike other religions where celibacy is praised. There are five requirements for a valid marriage: the male and female parties, a wali (guardian), two witnesses, and the pronouncement of offer and acceptance. The roles and conditions of the husband, wife, and wali are also outlined, including requirements that they be Muslim and not prohibited from marrying.

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    You are on page 1of 38

    MUSLIM MARRIAGE

    UIF2612 ISLAMIC FAMILY LAW

    CONTENTS
    Nature of marriages in Islam
    Betrothal
    Substantive marriage requirements

    MARRIAGE IN ISLAM

    Marriage in Islamic law is represented by the term nikah or

    zawaj
    The word "zawaj" is used in the Quran to mean a pair or a

    mate. In general it refers to marriage.


    It is regarded as a religious sacred covenant as it is a civil

    contract legalizing sexual intercourse and the procreation of


    offspring.
    God has created men and women as company to one another,

    so that they may procreate and live in peace and tranquillity.


    In contrast of other religions that consider celibacy or

    monasticism as a great virtue and a means of salvation, Islam


    considers marriage as one of the most virtuous and approved
    institutions.

    Authorities Quran
    Surah Ar-Rum 30:21 And of His signs is that

    He created for you from yourselves mates that


    you may find tranquillity in them; and He
    placed between you affection and mercy.
    Indeed in that are signs for a people who give
    thought.
    Surah An-Nahl 16:72 And Allah has made for

    you from yourselves mates and has made for


    you from your mates sons and grandchildren
    and has provided for you from the good
    things.

    Hadith
    It was narrated by Qatadah that the Prophet

    (PBUH) prohibited celibacy.


    It was narrated that Abdullah said: The
    Messenger of Allah said to us: O young men,
    whoever among you can afford it, let him get
    married, for it is more effective in lowering the
    gaze and guarding chastity, and whoever
    cannot then he should fast, for it will be a
    restraint for him.

    A group of three men came to the houses of the

    wives of the Prophet asking how the Prophet


    worshipped and when they were informed about
    that, they considered their worship insufficient and
    said, "Where are we from the Prophet as his past
    and future sins have been forgiven." Then one of
    them said, "I will offer the prayer throughout the
    night forever." The other said, "I will fast throughout
    the year and will not break my fast." The third said,
    "I will keep away from the women and will not
    marry forever." The Prophet came to them and said:
    "Are you the same people who said so-and-so? By
    Allah, I am more submissive to Allah and more

    Significant of marriage
    1. A means of emotional and sexual
    2.
    3.
    4.
    5.
    6.
    7.

    gratification
    A mechanism of tension reduction
    A means of legitimate procreation
    Social placement
    An approach to inter-family alliance and
    group solidarity
    An act of piety
    A form of worship and obidience

    Categories of marriage
    1. Mandatory/obligatory, if:

    The person feels badly in need of getting married


    II. Feel certain that he would commit adultery in case he
    does not get married
    III. He has the ability required for marriage
    I.

    2. Commendable, if:

    The person has strong will to control his sexual desire


    ii. Has the ability to enter into marriage
    iii. He would be just and fair to his spouse.
    i.

    3. Prohibited, if:
    a) The person does not have the ability to get married
    b) He suffered an illness that would affect the spouse and the

    child
    c) He is certain that he will do injustice to the spouse

    4. Undesirable, if:

    The person has no desire to marry


    ii. He is likely to cause harm to the spouse
    i.

    5. Superogatory, if:

    The person is sure that he can control his


    desire
    b. He has the ability to enter into marriage
    c. He feel that marriage will not keep him
    away from his devotion
    a.

    BETROTHAL (KHITBAH)

    Definition
    Means engagement or a mutual promise to

    marry
    Betrothal is not a legal contract. It does not
    make the parties husband and wife; they are
    merely affianced.
    It is allowed for the parties to repudiate the
    agreement, with a good and valid reason
    It is usually practice according to the custom of
    the people and is regarded as a preliminary step
    towards marriage. Any customary practice of
    betrothal which are not contrary to Islamic
    principle could be accepted.

    Authorities
    Surah Al-Baqarah 2:234-235: If any of you die and leave

    widows behind they shall wait concerning themselves 3


    months and 10 days. When they have fulfilled their term,
    there is no blame on you if they dispose of themselves in a
    just and reasonable manner, and Allah is well acquainted
    with all what you do. There is no blame on you if you make
    an offer of betrothal (khitbah) or hold it in your hearts. Allah
    knows that you cherish them in your hearts. But do not
    make a secret contract with them except in terms
    honourable nor resolve on the tie of marriage until the term
    prescribed is fulfilled. And know that Allah knows what is in
    your hearts and take heed of Him. And know that Allah is
    Oft-Forgiving Most Forbearing.

    Hadith
    Ibn Umar reported that Allahs Messenger

    (pbuh) said: A person shall not enter into a


    transaction when his brother had already
    entered into but not finalised and he should
    not make a proposal (khitbah) already
    made by his brother, until he permits it or
    until he gives it up.

    Conditions
    1. There should be no impediments to the

    marriage between the parties at the time


    of betrothal
    2. The woman is not betrothed to another
    person

    Impediments
    1. The parties should not be forbidden to marry

    whether permanent or temporary


    2. It is prohibited (haram) to have a contract of
    betrothal with a woman who is in the period of
    iddah (waiting period) after a revocable
    divorce as she is still tied to her husband and
    the husband has a right to revoke the divorce
    .If the divorce is irrevocable, it is prohibited to
    seek betrothal with her openly during iddah as
    her former husband can still seek to remarry
    her.
    .But if the husband has died and the woman is
    in iddah of widowhood, the general view is that
    she can be sought in marriage by suggestion,

    It is also haram, as we have seen to make a

    proposal of marriage to a woman to whom


    a proposal has been made, unless the first
    proposal has been rejected.

    SUBSTANTIVE MARRIAGE
    REQUIREMENTS

    1.
    2.
    3.
    4.
    5.

    According to Shafie school of law and


    majority scholars, there are five
    substantive requirements of a valid
    marriage:
    A male party (prospective husband)
    A female party (prospective wife)
    A wali (guardian)
    2 witnesses
    The pronouncement of ijab and qabul
    (offer & acceptance)

    CONDITIONS OF THE MALE


    (HUSBAND)
    i.
    ii.
    iii.
    iv.
    v.
    vi.

    A Muslim
    Not within ihram haji or umrah
    A specific man
    Not having four wives
    Voluntarily and not under duress
    A man and not khunsa musykil (person
    with two gender sex organs)

    Muslim
    Surah Al-Baqarah 2:221 Nor marry your girls

    to unbelievers until they believe; a man slave


    who believe 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 makes His signs clear to mankind, that
    they may receive admonition.
    Surah Al-Mumtahana 60:10 O you who
    believe! When believing women come to you
    as emigrants, test them; (though only) God
    knows best their faith. Then, if you have
    ascertained that they are believers, do not
    return them to the unbelievers. They are not

    Not within ihram haji or umrah


    Hadith Uthman bin Affan narrated that

    the Messenger of Allah said: A Muhrim


    (one in the state of Ihram) must not
    contract marriage, nor help others contract
    marriage, nor get engaged to marry."
    Related by Muslim.

    Not Having Four Wives


    Hadith narrated by Al-Harith ibn Qays al-

    Asadi: I embraced Islam while I had eight


    wives. So I mentioned it to the Prophet. The
    Prophet said: Select four of them.

    CONDITIONS OF THE WIFE


    A Muslim
    ii) A specific woman
    iii) Not a muhrim to a prospective husband
    iv) Not a wife to another person and not
    within the period of iddah in connection
    with that person
    v) Not within ihram haji or umrah
    i)

    Muslim
    Surah Al-Baqarah 2: 221 Do not marry

    unbelieving women (idolaters) until they


    believe. A slave woman who believes is better
    than an unbelieving woman even though she
    allure you.
    Surah Al-Maidah 5:5 And (lawful for you in
    marriage) are crom among the believers, and
    crom among those who were given the Book
    before, provided that you give them their
    bridal-due, taking them in honest wedlock, and
    not in debauchery, nor as secret lovecompanions

    In Islam, marriage between a Muslim man

    and a woman of the People of the Book


    (kitabiyah) is allowed.
    Kitabiyah means people who believe in
    Torat (Book revealed to Moses) and Injil
    (Book revealed to Isa)
    In Malaysia, the jurists have adopted a
    strict and restrictive definition of kitabiyah
    In Abdul Razak v. Maria Menado, MLJ [1965]
    xvi marriage was considered void as at
    the time of the marriage the wife was a
    Christian whose ancestors were converted
    to Christianity after the coming of Prophet

    Islamic Family Law (Federal


    Territories) Act 1984
    s.10(1) No man shall marry a non-Muslim

    except a Kitabiyah.
    s.2 : Kitabiyah means
    a) a woman whose ancestors were from the
    Bani Yaqub; 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

    CONDITIONS OF WALI
    The word wali is taken from the Arabic

    word Al-Wilayah which means the


    willingness to take responsibility to manage
    or to take up the authority to administer
    something
    Wali in a marriage is someone who
    possesses or has been granted by Islamic
    law the authority to perform a marriage
    contract.
    The wali is usually comes from the paternal
    side of the bride.

    Authorities
    Aisyah 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 the words 3
    times.
    Hadith: The marriage of a woman who
    marries without the consent of her
    guardians is void.

    There are several conditions required of a

    Wali:
    1. A Muslim
    2. A man
    3. Attained the age of puberty
    4. Voluntarily and not under duress
    5. Not within ihram haji or umrah
    6. Credible person (adil)
    7. Sound mind

    Types Of Wali
    1. Wali mujbir
    2. Wali ikhtiar
    3. Wali hakim/sultan

    Wali Mujbir
    Wali Mujbir is regarded as the perfect wali because he

    has full power to endorse a marriage on behalf of


    everyone under his care.
    Wali Mujbir means the father or paternal
    grandfather and above
    A father may marry off her virgin daughter without her
    consent
    However, for a daughter who is widowed or divorced,
    the father may not force her into a marriage unless by
    a clear and undisputed permission
    Authority: Hadith - A widowed woman has more
    rights unto herself than her guardian and a virgin
    woman is married off by his guardian.

    Wali Ikhtiar
    Wali Ikhtiar is a wali from Asobah guardians

    related to a woman at marrying a woman


    with her consent. Wali Ikhtiar include Wali
    Akrab and Abaad, who are wali in the
    absence of a Wali Mujbir who is either the
    father or grandfather from the fathers side.
    Such wali can marry off mature adult
    women and does not have any authority to
    force any marriage contract.

    Wali Hakim / Wali Sultan


    For a woman who does not have wali nasab

    (from her own kinship), or has problems


    with her wali, she is allowed to refer to a
    Judge / King guardian (wali hakim) because
    a king is a wali to those who do not have
    one
    Authority: Hadith Sultan is the guardian

    for those who do not have a guardian

    A woman who has problems with her wali

    to get married will require Wali Hakim


    under the following conditions:
    a) Wali refuses
    b) Wali disappears / lost
    c) Wali for a convert
    d) Wali for an illegitimate child
    e) Wali for a woman who does have wali

    nasab

    Islamic Family Law (Federal


    Territories) Act 1984
    s.7 - A marriageshall 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.

    s.13 - A marriage shall not be recognized and shall not be

    registered under this Act unless both parties to the marriage


    have consented thereto, and either
    (a) the wali of the woman has consented or
    (b) the Syariah Judge having jurisdiction in the place where the
    woman resides or any person generally or specially authorized
    in that behalf by the Syariah Judge has, granted his consent
    thereto as wali Raja in accordance with Hukum Syarak; such
    consent may be given wherever there is no wali by nasab in
    accordance with Hukum Syarak available to act or if the wali
    cannot be found or where the wali refuses his consent without
    sufficient reason.
    s.18(1) Reference to and action by Syariah Judge

    Cases
    Ismail v Aris Fadillah & Anor (1980) 5 JH

    326
    Hashim v Fatimah [1977] 5 JH 106
    Hussin v Saayah & Anor (1980) 7 JH 35

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