ISLAMIC FAMILY LAW

UIF2612

CHAPTER 1:
MUSLIM MARRIAGE
(Part 1)
INTRODUCTION
Islamic Family Law in Malaysia
 Matters concerning Islamic Family Law falls
within the jurisdiction of the States as
provided in the Federal Constitution (List II
of 9th Schedule).
 There is therefore separate legislation in
each State dealing with the administration of
Islamic Law (codified in the State
Enactments).
 At present, the governing State Enactments are
as follows:
o The Islamic Family Law Enactment Kedah 1979 (No 1 of
1984);
o The Islamic Family Law Enactment Kelantan 1983 (No 1 of
1983) (amended by En 6/84 and 3/87);
o The Islamic Family Law Enactment Malacca 1983 (No 8 of
1983);
o The Islamic Family Law Enactment Negeri Sembilan 1983
(No 1 of 1983) (amended by En 4/91);
o The Islamic Family Law (Federal Territories) Act 1984 (Act
303) (amended by Act A828of 1992);
o The Islamic Family Law Enactment Selangor 1984 (No 4 of
1984) (amended by En 6 of 1988);
o The Islamic Family Law Enactment Perak 1984 (No 13 of
1984) (amended by En 6 of 1988) (amended by E4 of
1992);
o The Islamic Family Law Enactment Penang 1985 (No 2 of
1985);
o The Administration of Islamic Family Law Enactment
Terengganu 1985 (No 2 of 1985);
o The Islamic Family Law Enactment Pahang 1987 (No 3 of
1987);
o Enakmen Undang- undang Keluarga Islam Sarawak 1991;
o The Islamic Family Law Enactment Perlis 1992 (No 4 of
1992); and
o The Islamic Family Law Enactment Sabah 1992 (No 4 of
1984) (No 15 of 1992).
MUSLIM MARRIAGE
BETROTHAL
 Some viewed that ‘betrothal is not known
to Islam’. Only the ceremony called
‘nikah’ (marriage vow) is known for uniting
husband and wife.
 However there are a few places in the
Holy Quran and Hadith that explain and
approve the act of betrothal.
AL- QURAN [SURAH AL- BAQARAH (2):234-235]:

If anyone of you die and leave widows behind they shall wait concerning themselves

three months and ten days (‘iddah period). When they have fulfilled their terms,

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. 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

Forgiving anfd Most Forbearing.

HADITH
 Ibnu Umar reported that Rasulullah (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”
 Jabir bin Abdallah reported that Rasulullah (PBUH) said:
“When one of you ask a woman in marriage, if he is able
to look at what will induce him to marry her, he should do
so”. He (Jabir) said: “I asked a girl in marriage, I used to
look at her secretly, until I looked at what induced me to
marry her, I therefore married her”.
THE ACT OF BETROTHAL
 The act of promising to marry someone
 A boy having made up his mind and chosen a
girl who he thinks will happily fit as his
companion for life, a formal betrothal is
recommended.
 The idea is to convey the words to her father or
any senior member in the family, alluding the
boy’s intention to visit them at a given time,
accompanied by his family and relatives.
 When the meeting is held, the representative of
the girl’s family may answer- either to accept or
decline the proposal.
 Customary practice
 It is a customary practice to make a gift to the fiancee.
 The gift used to be most popular food but nowadays it is generally an
engagement ring.
 Betrothal usually takes place in accordance to the custom followed by
the society.
 This custom is allowed so long it is not contrary to Islamic teachings.

 Moral binding
 It is a sort of a moral binding.
 This formal betrothal does not make the parties husband and wife, but
merely affianced.
 It does not give rise to the right of almony; but if broken it requires the
return of imperishable goods, if the breach is not caused by the giver.
 Of course it is bad to break the engagement without just cause to it.
- It is stated in the Holy Quran to the effect, “O you who
believed, fulfill all obligations.

 Rationale/ purpose of betrothal

 There are some rationale behind the practice of betrothal.
 It may be regarded as a preliminary stage towards
marriage- to allow the parties to be acquainted to one
another and to be assessed by one another.
 Helps to bring together the families, to increase respect
and love for one another.
CONDITIONS OF BETROTHAL
 Two (2) conditions of betrothal:
i) at the time of the betrothal there are no
impediments to the marriage between the parties;
ii) That she has not been betrothed to another person,
unless the first proposal has been rejected.
iii) That the person is not who falls within the degree of
a person who is forbidden to marry, eg:
- a woman who comes within the prohibited degree
of relationship either by consanguinity, affinity or
fosterage;
- a woman who is in her period of Iddah;
ISSUES REGARDING THE GIFTS
 The question arises as to what happens to the gifts upon the breach of
the agreement.
 In this respect, there are various views among the schools of laws:

Hanafi:
Where the betrothal gifts are still intact and has not changed their
character,the giver can ask for the return of the gifts, IF THE BREACH
IS BY THE OTHER PARTY.

Maliki:
IF THE BREACH IS BY THE MAN, he has NO right to ask for the
return of gifts, given by him. If on the other hand the breach is by the
woman, he has the right to ask for the return of gifts, whether the gift
are still in existence or not. If they have been destroyed, the value has
to be paid.
Shafiie:
The gifts should be returned by the breaching party
whether they are in existence or not. If the goods have
been consumed, destroyed or lost, the value should be
returned.
BREACH OF BETROTHAL
 Betrothal is only an agreement to enter into a
marriage and does not constitute a marriage in
itself.
 It is therefore possible for either of the parties to
break the agreement, if there are valid reasons for
doing so.
 However the agreement should not be broken
without a good reason, in reference to the hadith“
Muslims are bound by promises and the conditions
that they have agreed to”.
SECTION 15 OF IFLA 1984
Betrothal.
If any person has, either orally or in writing, or either
personally or through intermediary, entered into a
betrothal according to 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.
PROVISIONS ON BETROTHAL IN STATE ENACTMENTS
• If any person shall, either orally or in
writing , and either personally or through
an intermediary, have entered into a
contract of betrothal according to Muslim
Law and shall subsequently refuse without
lawful reason to marry the other party to
such contract, such other party being
willing to perform the same, the party in
Selangor default shall be liable to pay the other
Administration party the sum which is agreed in the
contract which the marriage was arranged
of Muslim Law is to be paid by the party in breach of the
Enactment conract, and, if a male, to pay as
damages the amount of maskahwin which
1952 would have been payable together with
other monies expended in good faith in
preparation for the marriage; if a female,
to return the betrothal gifts, if any, or the
value thereof and to pay as damages the
amount of such other monies as aforesaid,
and the same may be recovered by action
in the court.
 • If any person shall either orally or in writing
and either personally or through an
Kelantan intermediary have entered into a contract of
betrothal according to Hukum Syara’ and
Islamic Family subsequently there is a breach of such
contract, both parties shall return the gifts
Law received from the other party or their value
Enactment whether the default is on the part of the
male or female party and the party in default
1983 shall be liable to pay the sum which is agreed
in the contract and the same may be
recovered by action in Court.

• If any party has entered into any contract of

betrothal whether in writing or orally and
whether entered personally or through an agent
Kedah Islamic and refuses subsequently to marry the other
Family party without any cause despite the fact that
the other party is agreeable to perform the
Enactment marriage the party in default shall:
• Reimburse all the expenses incurred in the
1984 preparation of the marriage..;
• Return all the gifts of the betrothal , if any, or
the value thereof.
CASES
AISYAH V. JAMALUDDIN (1978)3 JH 104
 The man broke a promise to marry and the woman
claimed the payment of RM25 maskahwin, RM800
belanja or marriage expenses and also the right to keep
the engagement ring.
 Judgment by Chief Kadi: in favour of the woman and
ordered the man to pay the damages agreed in the
betrothal agreement, that is, RM25 maskahwin, RM800
of belanja and also held that the woman was entitled to
keep the engagement ring .
 Other than that, the man was also ordered to pay RM25
for clothes and RM400 for the cost of repair of the house
in preparation of the marriage.
HUSSIN V. MOH (1978) 3 JH 44
 It had been agreed in the betrothal that the maskahwin
should be RM500.
 The parents of the bride had spent RM350 for the
preparation of the marriage.
 On the day of the marriage, the representative of the
bridegroom paid RM500; RM300 in the form of cash and
RM200 in the form of jewelleries.
 The bride’s representative refused to accept, and the
solemnization of the marriage was cancelled.
 The bride’s father claimed for the damages of RM350 (for
the money he had spent for the preparation of the marriage,
alleging that the defendant was in breach of the agreement,
and the court ordered for him to be compensated.
 The defendant went for an appeal.
 At the appeal stage, the board of appeal held that
there was no justified reason why the payment of
the maskahwin paid partly in cash and partly in
jewelleries form should be refused by the
respondent.
 The act of paying the maskahwin in that form does
not in contrary with the terms in the betrothal
agreement as the amount/ value of RM500 was
maintained. Appeal allowed.
NAFSIAH V. ABDUL MAJID
 It was held that the HC in Malaya has the
jurisdiction to entertain claims for damages
arising from breach of promise to marry , even
though the parties are Muslims.
 It was held that the claim in this case could be
brought as a breach of contract made under the
Contracts Act 1950.
 There were sufficient evidence that the
defendant had promised to marry the plaintiff
and the defendant broke it.
 The Plaintiff brought an action against the
defendant for breach of promise to marry without a
reasonable ground.
 The defendant’s lawyer in his defence argued that
the plaintiff knew about the fact that the Defendant
is a married man during the promise was made.
 The judge held that as the defendant is a Muslim,
the fact was therefore immaterial as a Muslim is
allowed to marry more than one.
 The plaintiff was compensated with the damages of
RM1,200 as assessed by the court.
 Does the abolishment of the action for breach of
promise to marry in England would affect the
situation in Malaysia?

In Doris Rodriques v. Bala Krishnan, the HC held that the

abolished actions for breach of promise to marry is not
applicable to Malaysia by virtue of the Civil Law Act 1956
and Contracts Act 1950 which acknowledge a contract to
marry as a good one and therefore claimable under the
Act.
However, it is important to note that as far as
Muslim are concerned, it would appear that the
Civil Courts will have no jurisdiction in cases of
breach of promise to marry, as the matter comes
within the jurisdiction of the Shariah Court (Art
121(1A) of the Federal Constitution.

* The case of Nafsiah v. Abdul Majid was decided

in 1969, prior to the amendment of Art 121 (1A) of
the FC.
THE EFFECT AFTER THE AMENDMENT OF ARTICLE
121(1A) OF THE FEDERAL CONSTITUTION

 The Shariah Court has exclusive jurisdiction where

the Civil Court cannot interfere.
 Removes the jurisdiction of the Civil Court in the
matters specified in the State List as set out in Para1
List 1 of the 9th Schedule of the FC.
 Note that the parties before the Shariah Court must
be Muslims. The Shariah Court has no jurisdiction
where one of the parties involved is a Non-Muslim.
HOW ABOUT CASE WHICH INVOLVES A MUSLIM
AND A NON-MUSLIM PARTIES?

SUBASHINI A/P RAJASINGAM V. SARAVANA

 Both are originally Hindus and wife married under Law
Reform (Marriage and Divorce)on 26/7/2001.
 The husband converted to Islam in 18/5/2006. Husband
commenced proceeding in Shariah Court for dissolution
of marriage and the custody of the elder son(wife
received a notice from the Sh. HC)
 On 4/8/2006, wife filed a petition for a dissolution of
marriage under Section 51 of LR (M & D) Act and
custody of child.
 The issue arose on which court has a better
jurisdiction?
 In this case, the Federal Court held that the HC has
an exclusive jurisdiction to decide on the matter
involving divorce and custody rights of a couple
which one spouse have become a Muslim.
 HC has jurisdiction to hear the case even though the
husband has converted to Islam.
 Court in its decision looks at the status of the
husband and wife at the time of registering
their marriage. Otherwise the husband’s
conversion would cause injustice to the wife and
the children.
 On the other hand, there is a clear rule that a
non- muslim cannot appear before the Shariah
Court where it has restricted its jurisdiction only
to persons professing the religion of Islam.