Muslim Marriages

Nature of marriages in Islam, Betrothal, Substantive

marriage requirements; Age of Marriage; Consent of
the bride; Solemnisation of marriage; Capacity to
marry; Polygamous marriages, Prohibited
marriages; Maskahwin and Pemberian; Procedure
and formalities; Effect of registration.
 Nature of marriages in Islam
• What is Marriage?
• Islamic law = nikah or zawaj
• Meaning of "zawaj" :
– In the Quran to mean a pair or a mate.
– In general 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.
 Authorities : Al-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. ”
 Authorities : 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
afraid of Him than you; yet I fast and break my fast, I do
sleep and I also marry women. So he who does not
follow my tradition in religion, is not from me (not one
of my followers).
 Significant of marriage
1. A means of emotional and sexual gratification
2. A mechanism of tension reduction
3. A means of legitimate procreation
4. Social placement
5. An approach to inter-family alliance and group
solidarity
6. An act of piety
7. A form of worship and obedience
 Categories of marriage
1. Mandatory/obligatory, if:
I. 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
2. Commendable, if:
i. 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.
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:
i. The person has no desire to marry
ii. He is likely to cause harm to the spouse
5. Superogatory, if:
a. 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
 BETROTHAL (KHITBAH)
• Definition:-
• Engagement / a mutual promise to marry
• Not a legal contract. Does not make the
parties husband and wife; only affianced.
• Can repudiate?
– Only with a good and valid reason
• A preliminary step towards marriage.
Acceptable as long as not contrary to Islamic
principle.
 Authorities: Al-Quran
• 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.”
 Authorities: Hadith
• Ibn Umar reported that Allah’s 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. Prohibited 2. In Iddah 3. Betrothed

to marry • Revocable to another
• Permanent; or divorce person
• Temporary • Irrevocable
divorce
• widowhood
 SUBSTANTIVE MARRIAGE
REQUIREMENTS
• Imam Shafi’e school of taught and majority
scholars:- a valid marriage must have
5 essential elements :
1. A male party (prospective husband)
2. A female party (prospective wife)
3. A wali
4. 2 witnesses
5. The pronouncement of ijab and qabul (offer
& acceptance)
 1. Conditions of: a male party (prospective husband)
•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.”
A Muslim

•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 in Ihram

•4th Schedule, Kelantan Islamic Family Law Enactment 1983

Specific

•4th Schedule, Kelantan Islamic Family Law Enactment 1983

Voluntary

•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:
Not having 4 Select four of them.
wives

•4th Schedule, Kelantan Islamic Family Law Enactment 1983

A man, not • Khunsa Musykil includes a hermaphrodite
khunsa musykil
 2. Conditions of : a female party (prospective
wife)
- A Muslim
- A specific woman
- Not a muhrim to a prospective husband
- Not a wife to another person and not within the period of iddah in connection with that person
- Not within ihram haji or umrah

AUTHORITIES

A Muslim Not in Ihram

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.”
An-Nawawi stated to the
effect – ‘A state of ihram
4th Schedule, Kelantan
Islamic Family Law whether of the guardian
or of the bride or
Enactment 1983
bridegroom is an obstacle
to the validity of a
marriage.’
Marriage with a kitabiyyah woman
• Who is a kitabiyyah?
• Kitabiyah means people who believe in Torat (Book
revealed to Prophet Musa) and Injil (Book revealed to
Prophet Isa)
• In Malaysia, the jurists have adopted a strict and
restrictive definition of kitabiyah
• Is a muslim man allowed to marry a kitabiyah woman?
• Case:- 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 Muhammad
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
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
 3. Conditions of : a wali
• What is a ‘wali’?
• 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 the authority to perform a
marriage contract by Islamic law .
• The wali is usually comes from the paternal side
of the bride.
• Authority on wali:-
• 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.”
• A wali MUST be:-
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
• Regarded as a perfect wali : 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
• Is a wali from Asobah guardians related to a
woman at marrying a woman with her consent.
• Wali Ikhtiar include Wali Akrab and Aba’ad, who
are wali in the absence of a Wali Mujbir who is
either the father or grandfather from the father’s
side.
• Such wali can marry off mature adult women and
does not have any authority to force any
marriage contract.
 Wali Hakim
• 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 marriage…shall 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
 4. Conditions of : witnesses
• There must be at least 2 witnesses who are:
1. Muslim
2. Male
3. Sane
4. Have reached the age of puberty
5. Can physically hear, see and speak
6. Can understand the requirement of sighah (ijab
& qabul)
7. Credible
 AUTHORITIES
Al-Quran:-
• Surah al-Baqarah 2:282 – “…and get two
witnesses, out of your own men…”

Hadith:-
• Hadith – the Prophet (pbuh) said: “There is no
marriage except where there is a wali and two
witnesses who are adil (just). Otherwise the
marriage will be invalid.”
 AUTHORITIES
Islamic Family Law (FT) Act:-
• s.22(2) - entry in Marriage Register shall be attested to by
the parties to the marriage, by the wali, and by two
witnesses other than the Registrar, present at the time the
marriage is solemnized.
• s.40 (1) Offences relating to solemnization of marriage –
Any person who knowingly solemnizes or purports to
solemnize, or officiates at, a marriage—(b) otherwise than
in the presence of at least two credible witnesses other
than the person solemnizing the marriage, commits an
offence and shall be punished with a fine not exceeding
one thousand ringgit or with imprisonment not exceeding
six months or both.
 5. Conditions of : ijab & qabul
• Marriage is a contract which is also known as al-aqad.
• Al-aqad consists of ijab & qabul (offer & acceptance)
• Marriage is legally contracted by declaration made by
one contracting party (ijab) followed by a
corresponding acceptance from the other one (qabul)
• The offer is made by the bride’s guardian (wali) or his
representative and the acceptance is by the male party
• The ijab must use the word tazwij or nikah or the
translation of both in whatever language it may be
used
• The acceptance must be made by the groom or his
representative after ijab without any insertion of any
extraneous words or undue delay.
 Requirements
1. Occur at the same meeting in the presence of
two witnesses.
2. Both parties should hear each other and it
should be understood by each one of them
that the purpose of the contract is marriage
3. The qabul (acceptance) should match the
offer in expression, and
4. The acceptance must be declared in a clear
and unequivocal manner.