(Edited)Muslim_Marriage_-_1.pptx

MUSLIM MARRIAGE

UIF2612 ISLAMIC FAMILY LAWMUSLIM MARRIAGE

CONTENTSNature of marriages in IslamBetrothalSubstantive marriage requirements

MARRIAGE IN ISLAM

Marriage in Islamic law is represented by the term nikah or zawajThe 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.

HadithIt 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 marriageA means of emotional and sexual gratificationA mechanism of tension reductionA means of legitimate procreationSocial placementAn approach to inter-family alliance and group solidarityAn act of pietyA form of worship and obidience

Categories of marriageMandatory/obligatory, if:The person feels badly in need of getting marriedFeel certain that he would commit adultery in case he does not get marriedHe has the ability required for marriageCommendable, if:The person has strong will to control his sexual desireHas the ability to enter into marriageHe would be just and fair to his spouse.Prohibited, if:The person does not have the ability to get marriedHe suffered an illness that would affect the spouse and the childHe is certain that he will do injustice to the spouse

Undesirable, if:The person has no desire to marryHe is likely to cause harm to the spouse Superogatory, if:The person is sure that he can control his desireHe has the ability to enter into marriageHe feel that marriage will not keep him away from his devotion

BETROTHAL (KHITBAH)

DefinitionMeans engagement or a mutual promise to marryBetrothal 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 reasonIt 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.

ConditionsThere should be no impediments to the marriage between the parties at the time of betrothalThe woman is not betrothed to another person

ImpedimentsThe parties should not be forbidden to marry whether permanent or temporaryIt 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 divorceIf 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, but even in this case it would be haram to do so openly so as not to hurt her feelings and those of the family.

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

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 witnessesThe pronouncement of ijab and qabul (offer & acceptance)

CONDITIONS OF THE MALE (HUSBAND)A MuslimNot within ihram haji or umrahA specific manNot having four wivesVoluntarily and not under duressA man and not khunsa musykil (person with two gender sex organs)

MuslimSurah 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 (being believers) lawful (as wives) for the unbelievers, nor are the unbelievers lawful (as husbands) for themS. 10(2) of Islamic Family Law (Federal Territories) Act 1984 No woman shall marry a non-Muslim.

Not within ihram haji or umrahHadith 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 WivesHadith 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 WIFEA MuslimA specific womanNot a muhrim to a prospective husbandNot a wife to another person and not within the period of iddah in connection with that personNot within ihram haji or umrah

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 love-companions

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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 kitabiyahIn 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 1984s.10(1) No man shall marry a non-Muslim except a Kitabiyah.s.2 : Kitabiyah meansa woman whose ancestors were from the Bani Yaqub; ora Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; ora Jewess whose ancestors were Jews before the prophethood of the Prophet Isa

CONDITIONS OF WALIThe 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 somethingWali 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.

AuthoritiesAisyah 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:A MuslimA manAttained the age of pubertyVoluntarily and not under duressNot within ihram haji or umrahCredible person (adil)Sound mind

Types Of WaliWali mujbir Wali ikhtiarWali hakim/sultan

Wali MujbirWali 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 aboveA father may marry off her virgin daughter without her consentHowever, 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 IkhtiarWali 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 SultanFor 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 oneAuthority: 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:Wali refusesWali disappears / lostWali for a convertWali for an illegitimate childWali for a woman who does have wali nasab

Islamic Family Law (Federal Territories) Act 1984s.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

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