DECEMBER 2018

PART A- Q1 b)

Issue:
Whether Suria can marry without the consent of her father (wali mujbir)
Law:
- According to Shafie, there are 5 pillars (rukun) and conditions for marriage namely, a
male party, a female party, a wali, 2 witnesses and pronouncement of ijab and qabul.
- Per Shafie, wali is the third pillar (rukun) of nikah. In contrast, per Hanafi, wali is not
rukun but is commendable.
- A wali in marriage is defined as a person who has the right to give away a woman in
marriage.
- An-Nur: 32
“….and marry those among you who are single and solihin of your slave and made
servant….”
Hadiths relied by Shafie
- Aisha RA reported that Prophet SAW said: “The marriage of a woman who marries
herself without the consent of her guardian is void”. He said these three times.
- Aisha RA reported that Prophet SAW said: “There is no marriage contract except that
contracted by a guardian and the one who has no guardian has the ruler as guardian
 - There are two types of wali namely wali khas (wali nasab) and wali am (wali ghayr
nasab)
- Wali khas (wali nasab) includes wali mujbir. wali ghayr mujbir. wali aqrab and wali
ab’ad. Wali khas (wali nasab) is a natural guardian or guardian who is a blood relative
of the ward and one of the specified categories in shariah.
- Wali mujbir refers to wali who is empowered to proceed with the marriage of his
virgin daughter (who is of sound mind and has come of age) without her permission.
- Per Section 2 of IFLA, wali mujbir also refers to a natural father and paternal
grandfather only
- Prophet saw said:
“A divorced woman has more rights upon herself compared to her wali as for a virgin
is married by her father (wali).”
- All mazhab (consensus) that wali mujbir has the right to marry his daughter without
her consent.
Requirements for a wali:
- Section 13 (b) of IFLA(FT): The marriage must be consented by the wali of a woman
in accordance with hukum syarak or was consented by the Syariah Judge for the wali
Raja to solemnize the marriage in absence of the Wali Nasab.
- Section 7 of IFLA(FT): The marriage must be solemnised by a the wali/his
representative//Registrar

Husin v Sa’yah & Anor

- Father of the bride asked for his daughter’s marriage without wali to be rescinded.
The couple married in Thailand by one lebai without permission of wali. Held:
Marriage is not valid and rescinded.
However, if wali refuses to give consent without reasonable excuse, the woman can apply for
wali raja at the Syariah court.
- Azizah v Mat
o The applicant was engaged and intended to get marry. However, her father
refused to be her wali as he wanted to wait until she is employed. Held:
Unreasonable excuse. The court allowed her application for wali raja.

- Ramli bin Abd Rahman v Marlia Akmar bt Ramli

o The court allowed the respondent’s application to marry by wali hakim on the
ground that wali mujbir refused to marry her without valid and reasonable
reasons. Respondent was also able to prove to the court that there is kafa’ah.
Application:
- Here, Suria’s father falls under the category of wali mujbir as he is her father,
fulfilling Section 2. As her father, he has the right to marry his daughter without her
consent.
- In Suria’s situation, her wish to marry Mokhtar is objected by her father as he believes
that she should complete her studies first and that a virgin should marry a bachelor.
He is also afraid that Mokhtar could not afford to maintain his daughter as he works
as only a clerk.
- By virtue of Azizah v Mat whereby the wali’s want for the daughter to be employed
first was held to be unreasonable, the same thing could be applied in Suria’s situation
as her father’s objection that she should complete her studies first before marrying can
be considered to be unreasonable as well.
- However on facts, it is evident that Mokhtar is already a married man with four
children. This means he is liable for the upbringings of them which include paying for
all their expenses such as food, shelter and education etc. Generally, clerks’ wages are
not that high thus Suria’s father being afraid that Mokhtar could not maintain Suria is
reasonable. Therefore, unlike the case of Ramli bin Abd Rahman v Marlia Akmar bt
Ramli, Suria cannot say that her father (wali mujbir) does not have a reasonable
reason to object to the idea of her marrying Mokhtar.

Conclusion:
Suria cannot marry without the consent of her father (wali mujbir) as he has reasonable
reasons to object to the marriage proposal.