• li'an

    LI’AN: HUSBANDS, BEWARE!

    LI’AN: INTRODUCTION – In Islam, the relationship between a man and a woman can be legalised by way of a valid marriage solemnisation in accordance with the hukum syara’. With marriage, a household is hoped to be showered with love, affection and harmony between its members. The warmth and tranquillity that are expected to be gained from a husband-wife relationship could be reflected by the verse in the Qur’an which equates a wife as a garment/ clothing for the husband, and vice versa. Allah says in Surah Al-Baqarah, verse 187:

    هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَهُنَّ ۗ

    Translation by Muhsin Khan:They are Libas [i.e. body cover, or screen, or Sakan, (i.e. you enjoy the pleasure of living with her – as in Verse 7:189) Tafsir At-Tabari], for you and you are the same for them.”

    Ironically, the reality that we have to swallow about marriage is just like what Sylvester Stallone had said in a film entitled Rocky Balboa that “the world ain’t all sunshine and rainbows. This saying applies similarly in a marriage life. Some marriages survive a long-lasting happiness, whilst some people ended up having a wrecked marriage whereby the marriage eventually dissolves through a divorce. Hence, in this article we would discover a type of oath namely; li’an which could dissolve a marriage solemnisation.

     

    THE DEFINITION OF LI’AN

    Linguistically, li’an derives from the Arabic word; la’ana which means “to curse” or “to condemn” as stated in Kamus Arab-Indonesia Al-Munawwir by Ahmad Wirson Munawwir (1997). Whereas, The Oxford Dictionary of Islam defines it as: mutual repudiation. It is a mutual one in the sense that when a husband accuses his wife of committing adultery (zina) without providing four credible witnesses, by following the instructions laid down in Surah An-Nur, verses 6-7, the wife may then deny the allegation by repudiating in the same manner. The curse (la’nat) takes place at the fifth oath, whereby the wrath of Allah will fall on them if they are lying.

     

    AUTHORITIES FROM THE QUR’AN AND HADITH ON LI’AN

    Li’an is not a new creation of men but has long been recognised and inscribed in the Holy Qur’an.

    In Surah Al-An’am, verse 6-7, Allah says:

    And those who accuse their wives [of adultery] and have no witnesses except themselves – then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful. And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars.

    And in a hadith reported in Sahih Muslim, it was narrated that:

    Ibn Umar (Allah be pleased with them) reported Allah’s Messenger (may peace be upon him) saying to the invokers of curse: Your account is with Allah. One of you must be a liar. You have now no right over this woman. He said: Messenger of Allah, what about my wealth (dower that I paid her at the time of marriage)? He said: You have no claim to wealth. If you tell the truth, it (dower) is the recompense for your having had the right to intercourse with her, and if you tell a lie against her, it is still more remote from you than she is...”

     

    THE OCCURRENCES OF LI’AN

    Abd al-Fattah Ibrahim in his book entitled Ahkam al-Usrah fi al-Shari’ah al-Islamiah explains that li’an can take place in two occurrences:

    1. When a husband alleges his wife of committing zina (adultery) but could not bring forth four witnesses.
    2. When a husband denies the nasab of the child borne by the wife due to uncertainty in the process of the child delivery.

     

    PILLARS (ARKAN) AND CONDITIONS OF LI’AN

    Meanwhile, Basri Ibrahim in his book called Pemantapan Sistem Kekeluargaan, page 209, lists out the pillars of li’an into four, namely:

    1. The one who pronounces the li’an (the husband):
      The husband must be the legitimate husband of the wife who has been pronounced li’an upon, and the husband must be of sound mind.
    2. The person who has been pronounced li’an upon (the wife):
      The wife must be the legitimate wife of the husband (who pronounces the li’an) and of sound mind.
    3. The cause (sabab) of li’an:
      The cause of li’an as discussed above is either due to the denial of nasab of the child borne by the wife or accusing/alleging a wife of committing zina.
    4. The pronouncement (lafaz) of li’an:
      The pronouncement of li’an must be in the correct order/sequence. The majority of the scholars (ulama’) are of the view that li’an would be valid if pronounced in the Arabic language or even in other languages. Nevertheless, according to the Hanbali madzhab, any husband and wife who can speak Arabic should pronounce li’an in Arabic as illustrated in the Qur’an.

     

    THE CONDITIONS OF LI’AN

    On the other hand, the conditions of li’an as highlighted by Jabatan Kehakiman Syariah Negeri Kelantan on its online portal are:

    1. The qazaf (the allegation of adultery by the husband towards the wife) must precede the li’an.
    2. The li’an of the husband is followed by the li’an of the wife.
    3. Both of the husband and wife must pronounce the words of li’an.  This is because the pronouncement of li’an is elucidated clearly in the Qur’an and must be pronounced accordingly.
    4. All the five oaths/swears of li’an must be pronounced successively, one after another (mu’allat). 
    5. The Judge must advice the parties not to tell lies whilst pronouncing li’an. 

    According to the above portal, all of the above conditions must be fulfilled for a li’an to be valid.

     

    THE DURATION OF THE DENIAL OF PATERNITY (NASAB)

    Muslim scholars have formed different opinions on the duration of the denial of paternity or in other words, for how long can a husband deny the paternity of the child borne by his wife? In a book entitled Pemantapan Sistem Kekeluargaan written by Basri Ibrahim, the majority of the Muslim scholars (jumhhur fuqaha’) opine that a husband cannot deny his paternity upon a child borne by his wife, after his wife gave birth to/delivered the child.

    On the other hand, according to the writer, the Shafi’i madzhab permits the denial of paternity of a child to be done throughout the wife’s pregnancy until the child is born. Whereas, the scholars of the Hanafi madzhab are of the view that the denial of paternity should be made abruptly as soon as the child is born or during the process of delivery, for the li’an to be valid. In contrast, if the li’an is made after that, the li’an would not be valid. The justification for the view is that the silence of the husband before this connotes that the husband is pleased (redha) with the child. 

    Meanwhile, the Maliki madzhab holds the same view as the Hanafi School, but with two extra conditions attached. Firstly, the husband has not consummated the wife within a period which could cause the wife to be pregnant.  Secondly, the denial of paternity must be done before the birth of the child. If the husband remains silent until the birth of the child, even after one day, the li’an of the husband will not be valid, and the husband will be imposed with a hadd punishment for qazaf due to alleging the wife of committing adultery.

     

    THE CONSEQUENCES OF LI’AN

    Now, we have come to the penultimate part of the discussion on li’an, whereby we would explore the effect(s) of the pronouncement of li’an that both husbands and wives must know before they even think of pronouncing li’an. Wahbah al-Zuhaily in his kitab entitled Al-Fiqh al-Islami wa Adillatuh explains the consequences of li’an as follows:

    1. The hadd punishment for qazaf upon the husband will lapse and the same applies to the wife, whereby the hadd punishment for zina would lapse as well once li’an is made by both parties. 
    2.   It is forbidden for the husband and wife to resume conjugal relation even prior to the faraq   (judicial separation) decreed by the Judge.
    3. The parties should be separated (faraq).
    4. Li’an is a type of oath which would prohibit the parties who pronounced it from reconciling the marriage forever (haram mu’abbad).
    5. If the li’an is made to deny the nasab of the child borne by the wife, the husband is not obligated to the wife and the child as there is no link of lineage intertwined between them (the husband and the child).

     

    CONCLUSION

    In conclusion, li’an shows that apart from the pronouncement of talaq, a marriage can be dissolved when a marriage couple pronounce li’an towards each other, provided that all of the conditions and pillars of li’an (as discussed above) are fulfilled. The pronouncement of li’an should not be treated as a jest, as the wrath or curse of Allah would befall upon those who are not being truthful whilst pronouncing li’an. 

    Looking at the Malaysian context particularly in the State of Selangor, li’an is covered under Section 51 of the Islamic Family Law (State of Selangor) Enactment 2003, whereby the provision briefly states the consequences of li’an. The Section reads: 

    Where the parties to a marriage have taken oath by way of li’an according to Hukum Syarak before a Syarie Judge, upon judgment, the Syarie Judge shall order them to be farak and be separated and to live apart forever.

    From the above provision, similar to what have been discussed above, li’an would result in the parties to the marriage to be judicially separated (faraq) forever as li’an causes a marriage to be haram mu’abbad.

    Meanwhile, under Section 36 of the Syariah Criminal Offences (Selangor) Enactment 1995, a man who alleges his wife of committing adultery without bringing forth four witnesses, and refuses to pronounce li’an is said to have committed qazaf, and would be liable for “a fine not exceeding five thousand ringgitor for “imprisonment for a term not exceeding three years or to both.”

    The punishment for qazaf as prescribed in Surah An-Nur, verse 4 which amounts to 80 lashes can only be duly imposed if the proposal to implement hudud law in Malaysia becomes a success. Wallahu a’lam. 

  • CHILD MARRIAGE FROM THE LEGAL AND SYARIAH POINTS OF VIEW

    CHILD MARRIAGE: FROM THE LEGAL AND SYARIAH POINTS OF VIEW

    INTRODUCTION: The marriage solemnisation of a 41 year old Kelantanese man to an 11 year old Thai girl (child marriage) sometime in June this year, has sparked outrage among the locals as well as human rights activists abroad, detesting a young child to become someone else’s bride. This much publicised news still remains a spotlight and attracted debates, whether to ban it altogether or to keep it within strict bounds. The question here is what is the position of child marriage in the Islamic context? Does Islam really permit a child to tie the knot?

     

    THE CONCEPT OF MARRIAGE IN ISLAM

    1. Before we delve further into the matter and explore the opinions of the Islamic scholars pertaining to it, it is best for us to firstly understand the concept of marriage in Islam. Marriage in Islam is considered as a sacred contract and is in fact encouraged by our beloved Prophet Muhammad s.a.w. if all the marriage requirements are duly met. A hadeeth reported by ‘Abdullah Bin Mas’ud in the Translation of Sahih Muslim, Book: 8 reads:

      0 young men, those among you who can support a wife should marry, for it restrains eyes (from casting evil glances) and preserves one from immorality; but he who cannot afford it should observe fast for it is a means of controlling the sexual desire.

    2. But what most of us fail to notice is that, with marriage comes responsibility. This issue of responsibility is what we need to concern most about when it comes to child marriage, as to whether a young child is capable to shoulder the responsibility of being a wife and a future mother. What we need to bear in mind is that marital commitments are not a one-man responsibility but a joint responsibility of both parties to the marriage contract.
    3. Looking at the requirements of marriage in Islam, we could see that there is no mention of a specific age for a bride or a groom to validly enter into a marriage solemnisation. Despite of the silence on the minimum age requirement for marriage in the Islamic faith, both parties to a marriage need to reach “comprehensive maturity” before an akad can be contracted. This is quoted in an article entitled; “An Islamic Human Rights Perspective on Early and Forced Marriages: Protecting the Sanctity of Marriage” published by Islamic Relief. A profound sense of maturity is therefore a necessity in marriage in order for the parties to fully understand the rights and responsibilities aroused out of marriage.

     

    THE DEFINITION OF CHILD IN ISLAM

    1. Next, the definition of “child” in Islam also requires contemplation. It is worth to be highlighted that, unlike the Western perspective on the definition of “child”, a “child” according to the shari’ah is not ultimately be defined according to a specified age. This is based on an article entitled “Child Marriage and Minimum Age of Marriage under Islamic Family Law” by Zanariah Noor. The Convention on the Rights of the Child (hereinafter referred to as “CRC) in its Article 1 defines a child to be a person under the age of eighteen (18) years unless if the laws of certain countries fixed a lower age. Malaysian laws also adopt the minimum age set by CRC, except for the Adoption Act 1952 which sets the age of under 21 years old for a person to be defined as a child.
    2. On the other hand, in Islam, the determinant is the state of puberty (bulugh). Based on the article entitled; “Child Marriage and Minimum Age of Marriage under Islamic Family Law” by Zanariah Noor, a state of puberty can be determined based on two ways:
      1. Physical change
      2. Age
    3. Referring to the above article, a female is said to have reached the age of puberty when she starts to discharge blood from the womb (haidh), whereas, a male attains the age of bulugh when there is an emission of seminal liquid (maniy). On the other hand, when there is no apparent physical change, the state of bulugh is determined by looking at the age of the person. If a person has attained the age of 15 years (Hanafi, Hanbali, Shafi’i madhahib) or the age of 17 years (Maliki madhab), he/she is said to have attained the age of puberty.

     

    JURISTIC OPINIONS ON CHILD MARRIAGE

    1. On the issue of releasing a child for her to be wedded with someone, there are differences of opinions among the Islamic scholars. Based on an article entitled; “Bayan Linnas Siri ke-141: Perkahwinan Kanak-kanak Mengikut Perspektif Syariah”, which can easily be accessible via the official website of the Federal Territory Mufti, the scholars which totally prohibit child marriage are Ibn Syubrumah and Abu Bakr al-Asam. The justification of the prohibition is based on the verse from the Qur’an which reads:

      وَابْتَلُوا الْيَتَامَى حَتَّى إِذَا بَلَغُوا النِّكَاحَ فَإِنْ آَنَسْتُمْ مِنْهُمْ رُشْدًا فَادْفَعُوا إِلَيْهِمْ أَمْوَالَهُمْ

      And try orphans (as regards their intelligence) until they reach the age of marriage; if then you find sound judgement in them, release their property to them” (Surah An-Nisaa’: Verse)

    2. According to the above article, the wajh al-dilalah of the above verse is that the age of minority ends at the age of marriage. Thus, there would be no such thing as child marriage based on this interpretation.
    3. On the other hand, the views which assent to child marriage can be further divided into two. The first view opines that child marriage is permissible, depending on the age of bulugh. Thus, no matter how “young” a person is, if she has already attained the age of puberty, it would be valid for her to get married. In contrast, the second view allows child marriage, even though the child has not attained the age of puberty. Nevertheless, the marriage can only be solemnised by “a person who is closest to the child, takes responsibility upon the child the most, loves her the most, knows best the maslahah (interest) of the child”. The person refers to the wali of the girl, i.e. the girl’s father. This opinion is held based on various authentic authorities from the Qur’an and hadeeth. 
    4. The verse of the Qur’an to support this contention is from Surah At-Talaq, Verse 4 which states to the effect:

    وَاللَّائِي يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ

    And those of your women as have passed the age of monthly courses, for them the ‘Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their ‘Iddah (prescribed period) is three months likewise, except in case of death].

    Based on the interpretation of this verse by al-Jassas as cited in the above-mentioned article, the part of the verse which goes وَاللَّائِي لَمْ يَحِضْنَ means a child who has not attained the age of maturity (bulugh). This means, if a child has to observe a period of ‘iddah, impliedly, a child can get married.

     

    THE STATEMENT OF MUFTI ON CHILD MARRIAGE

    1. The question now is: what is the stance of the Federal Territory Mufti with regards to the validity of child marriage? Construing the official written statement of the Federal Territory Mufti on this issue, the Mufti stated that the hukm of a child marriage depends on the laws in Malaysia. In Malaysia, the shari’ah law only permits a marriage to be contracted the earliest at the age of 18 (male) and 16 (female), and any marriage contracted below the specified minimum age, requires a prior written consent from the Hakim Syar’ie. This is laid out under Section 8 of the Islamic Family Law (Federal Territory) Act 1984.
    2. Nevertheless, he further stated that although the hukm of a child marriage is valid (sah) (provided that all the arkan of nikah are fulfilled), a child can only get married if he/she has attained the age where he/she is capable to discharge well the responsibilities that are tied together with a marriage contract and must understand the consequences of marriage such as pregnancy, the duty to provide maintenance, duty to provide conjugal relations, among others.
    3. Interestingly, the Official Website of the Federal Territory Mufti had just published a new article dated 7th August 2018, which refined the discussions on child marriage in the shari’ah perspective by narrowing down the discussion in the context of siyasah shar’iyyah. The article entitled; Bayan Linnas #145: Isu Perkahwinan Kanak-Kanak Menurut Perspektif Siyasah Syar’iyyah defined siyasah shar’iyyah as “a branch of study which studies about administerial affairs of an Islamic State in the context of the laws, policy and system, in accordance with the usul of Islam, despite the non-existence of a specific dalil (proof) in the nas syara’”.
    4. Thus, based on the concept of siyasah shar’iyyah, the Article stated that the Malaysian government has a right to curb child marriage through the implementation of laws and policies in order to ensure the interests of the children are protected, due to the fact that the nature of marriage entails marital responsibilities and obligations which might not be able to be carried out well by young children.
    5. Meanwhile, based on the Islamic principle of maslahah mursalah (simply translated as the consideration of public interest), the Article further stated that the Government has the right to enforce laws which limit the age of marriage involving children, if the laws are ordained in order to protect the interests and welfare of the children. This is as long as the laws are not in contradiction with nas qat’ie. 
    6. Next, based on the principle of sadd az-zari’ah (blocking the means of evil), the Article continued that the Government can hinder/disallow child marriage as a means to prevent from any occurrence of unwanted child exploitation, child abuse, and other detrimental effects arousing from a child marriage (if solemnised arbitrarily).  
    7. Lastly, based on the principle of istihsan (juristic preference), the Article indicated that, despite the existence of legal authorities (dalil) which permit child marriage (as pointed out above), by applying istihsan on the basis of maslahah (protecting the interests of the children), the interests of the children are prioritised and preferred over the contentions which authorise or legalise child marriage. 

     

    CONCLUSION

    1. In conclusion, the issue of child marriage should not be downplayed by any party, irrespective of race and creed. The interests and welfare of the children should be the paramount consideration before a Shari’ah Court Judge gives his written consent to permit the marriage solemnisation. Besides, the standard operating procedure (SOP) which has been outlined by the Syariah Judicial Department in cases of approving underage marriage applications should be supported, so as to avoid from any occurrence of marital abuse among innocent and vulnerable children.
    2. Despite the existence of juristic opinions which permit child marriage as discussed in the foregoing discussions, based on the principle of siyasah syar’iyyah that has been elaborated above and as what has been pointed out in the official written statement of the Federal Territory Mufti, the Government has the power/authority to limit the minimum age of marriage in order to uphold justice (protecting the interests of vulnerable children and preventing from any incidence of child exploitation or abuse). Following the call to raise the minimum age of marriage for Muslims, as what have been reported in several local news portals, the Selangor Islamic Religious Council (MAIS) had took the first leap before the other Islamic Religious Councils of the rest of the States in Malaysia, by proposing to amend the minimum age of marriage (by increasing the minimum age limit of marriage).
    3. Nevertheless, the proposal to increase the minimum age of marriage for Muslims in Malaysia should not be misunderstood as a means to illegalise what Allah permits (permitting child marriage in certain strict conditions and circumstances, in line with the Shari’ah, which would certainly not jeopardise children’s lives). Instead, as summed up by the Honourable Mufti of the Federal Territory, looking at the ‘urf in Malaysia, child marriage is best disallowed in accordance with law by following the Islamic principles of maslahah mursalah, sad al-zari’ah and istihsan. Whereas, exceptions would only be applicable in certain remote cases, after adhering to very strict conditions set by the Court. Wallahu a’lam.

    Article published for Peguam Syarie Faiz Adnan

  • HUDUD TIDAK BERPERIKEMANUSIAAN

    HUDUD TIADA SIFAT KEMANUSIAAN, HANYA MENGHUKUM DAN MENAKUTKAN?

    Soalan: Saya ingin mengajukan soalan berkaitan HUDUD kepada Peguam Syarie Faiz Adnan. Sesetengah pihak menyatakan undang-undang Islam (HUDUD) dibuat hanyalah untuk menghukum dan menakutkan semata-mata. Selain itu, hukuman tersebut juga tiada sifat kemanusiaan. Adakah ia menepati dhawabit maqasid syariah?

    Ani.

     

    Jawapan:

    Terima kasih Ani kerana atas soalan yang diberikan. Pertama sekali, Hudud bukanlah undang-undang yang dibuat untuk menakut-nakutkan manusia. Perlu difahami bahawa konsep undang-undang Hudud ini disyariatkan adalah untuk mendidik orang Islam khususnya dan orang bukan muslim amnya. Ini kerana untuk melaksanakan hudud itu sendiri bukanlah suatu yang mudah. Dalam sesuatu kes Hudud, ia memerlukan kepada kesaksian dan pembuktian yang ketat dan jelas. Jika terdapat keraguan walaupun sedikit maka pesalah tersebut tidak boleh dihukum dengan hukuman Hudud sepertimana sabda Rasulullah saw menyebut :

    ” Lebih baik melepaskan orang yang bersalah daripada menghukum orang yang tidak bersalah “

     

    Dengan kepayahan dan kesukaran untuk melaksanakan Hudud ini jelas menyifatkan bahawa undang-undang ini tidaklah sekejam seperti yang didakwa oleh sesetengah pihak malah sebaliknya telah pun mengambil kira unsur kemanusian bukan setakat kesan ke atas pesalah tersebut bahkan kepada umat Islam seluruhnya. Hikmah Allah swt mensyariatkan syariat ini bukanlah semata untuk menghukum tetapi untuk perkara yang lebih besar iaitu melindungi kehidupan manusia dari jenayah-jenayah yang akan memberi kesan kepada 5 perkara yang digariskan dalam maqasid syariah khususnya.

     

    Oleh itu pada pandangan peribadi saya, pihak yang menghalang perlaksanaan hudud itulah yang sebenarnya tidak berperikemanusiaan. Kerana apa? Kerana mereka tidak membenarkan ketenteraman dan keharmonian berlaku dalam kehidupan manusia.

     

    Seperti yang kita semua tahu bahawa Hudud ini adalah hak Allah dan manusia juga adalah hak Allah. Jika sekiranya seseorang manusia itu melakukan perkara yang bertentangan dengan kehendak Allah swt maka bagi pandangan peribadi saya, tidak menjadi salah jika Allah swt mengambil kembali nikmat yang diberikan kepada manusia tersebut seperti tangan ( yang dipotong bagi kesalahan mencuri/merompak ) dan seumpamanya. Namun begitu, hukuman ini terhad hanya kepada orang Islam sahaja atas asas keimanan yang mengakui bahawa Allah itu wujud.

     

    Seterusnya dari segi maqasid syariah, ya sememangnya Hudud menepati dhawabitnya. Dalam maqasid syariah, terdapat 5 perkara yang perlu dijaga iaitu akal, keturunan, harta, agama dan nyawa. Melihat kepada jenayah hudud itu sendiri iaitu meminum arak, berzina, mencuri, murtad dan membunuh, dengan adanya had hukuman bagi kesalahan-kesalahan tersebut sekali gus dapat memelihara kelima-lima perkara dalam maqasid syariah.

     

    Hukuman ini sering dianggap kejam dan tidak berprikemanusiaan sepertimana yang didakwa oleh sesetengah pihak. Kerana apa? kerana undang-undang ini datangnya dari Islam. Cuba bayangkan kalau hukuman ini adalah hukuman sivil atau dari pihak barat? Nescaya seluruh masyarakat di Malaysia khususnya atau dunia umumnya akan menerima hukuman-hukuman ini meskipun terpaksa. Apa yang pasti hukuman ini adalah jauh lebih baik dan bertimbang rasa berbanding hukuman barat seperti kerusi elektrik, gantung sampai mati, dan lain-lain. Secara mudah, perbandingan boleh dibuat terhadap hukuman sebat sivil dan syariah yang dilaksanakan di penjara pada hari ini.

    Wallahua’lam.

     

    Artikel disediakan untuk Firma Peguam Syarie Faiz Adnan & Associates.