GROUP 1: CHRISTY, ISHINI & SEE PEI PEI

An engagement agreement was entered into between Hassan and Asmah on July 2, 2019. To mark
the engagement both parties exchanged valuable gifts and Hassan presented Asmah with a
diamond ring worth RM 6,500. The date of the nikah was agreed and fixed as October 31, 2019.
Asmah and her parents immediately made all the necessary arrangements for the wedding
including printing the wedding cards, booking the venue for the ceremony, catering food for 500
guests for the reception and also the wedding costumes. They would have spent about RM 60,000
for the intended wedding. On October 15, 2019, Hassan called off the wedding without giving any
reason. Asmah is devastated and seeks your advice.

Based on the above discuss the following:

(a) Explain the legal implications of the concept of ‘Betrothal” under Islamic Law.

(b) With reference to decided cases, advice Asmah whether she has any redress.

(1) Christy

(a) Betrothal (khitbah) under Islamic law is defined by Jamal J Nasir as, ‘The request by the
man for the hand of a certain woman in marriage, and approach to her, or to her next of kin,
with a view to describing his status, and to negotiating with them the subject of the contract
and their respective demands in that connection’.

It is basically a promise to marry and only an agreement to hold a marriage so that one party
is permitted to cancel an agreement when there is a clear reason or there is agreement
between the two parties to cancel it.

A Muslim man may make a proposal to marry a woman who he can marry under Islamic law
either directly or through an intermediary.

Betrothal is encouraged in Islam as it may lead two families to know each other and to foster
a close relationship between them. It is necessary for the man to tell the family of his future
wife of his position, his current job, his earnings, education and background. It also enables
the betrothed couple to become better acquainted and know the attitude and nature of their
future spouse.

In Malaysia, the law governing betrothal is provided for under the Islamic Family Law
(Federal Territories) Act 1984 and other State enactments.

(2) ishini
The breach of betrothal agreement is under Section 15 of the IFLA provides 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 expenses that have been incurred in good faith by or for the other party in
preparation for the marriage and such gifts and expenses may be recovered by action in
Syariah Court.’ Therefore, 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

(b) In the case of Aishah v Jamaludin, the man breached his promise to marry his fiancee.
His fiancee is now asking for damages: her dowry amounting to RM25, cost of the wedding
preparation amounting to RM800 as well as retaining the engagement ring. It was held that
the man had to pay as requested and the fiancee was allowed to keep the engagement ring.
The man was also ordered to pay RM25 for the wedding outfits made and RM400 as costs
for repairing her house for the wedding.

(3)Belinda
In the case of Salbiah Othman v Haji Abdul Ghani, an engagement agreement was entered
into and the date of the nikah (marriage) was agreed. However, the defendant called off the
engagement on the 17th August. The plaintiff filed an application for the following claims,
claim for damages due to humiliation at RM200,000 and compensation for the expenses
amounting to RM9,677. The Syariah Court decided that the defendant without lawful reason
had breached the promise to marry the plaintiff after both had made an agreement and so
granted the claim for expenses in preparation for the marriage in the sum of RM6,277.10,
but dismissed the claim for damages As the most suitable place for a claim of humiliation to
be brought to, would be the Civil High Court, as this matter is concerning general damages
due to humiliation/embarrassment which is not under the jurisdiction of the Syariah Courts.

Therefore with the application of the above case law and statutory provisions a Betrothal
Agreement was entered between Hassan and Asmah and the date of nikah has been fixed.
Hassan called off the wedding without reason, which amounted to breach of the Betrothal
Agreement. According to section 15 of the Islamic Family Law (Federal Territories) Act 1984,
the betrothal gifts should be returned whether they exist or not. If the goods are still in
existence then the goods themselves should be returned. Nevertheless if the goods have
been consumed or used or lost then the value of the gifts should be returned, therefore in
this case the RM 60,000 spent on the intended wedding should be returned and Asmah has
the right to keep the engagement ring with her.