• Marriage Validity and Attribution of Nasab

    MARRIAGE VALIDITY & ATTRIBUTION OF NASAB

    QUESTION ABOUT MARRIAGE VALIDITY: Assalamu’alaikum Peguam Syarie Faiz Adnan. I am Khairul Bin Asri from Bandar Baru Bangi. I got married to my wife; Arini Syakilla in Taiping, Perak and are blessed with one daughter. During the marriage ceremony, my wife’s father was still in existent and lived in Kerteh, Terengganu and was also the wali mujbir of my wife. However, my father in-law did not become the wali for my wife as we solemnised our marriage without his knowledge as my wife doubted that his father would permit us to get married since we were then still in our foundation studies at the Foundation Centre. Nevertheless, my wife never asked for his permission and consent prior to our marriage, hence, there was actually no evidence that my father in law refused to consent. In turn, the man who became my wife’s wali was a man by the name of Ahmad Bin Tokiman, who claimed to be a wali hakim. Problems arose when we received a letter from the Office of the Administration of Islam, Taiping, Perak, stating that our marriage certificate was a forgery and was never issued by any Deputy Registrar of the kariah in the area. I have two questions to ask. Firstly, whether our marriage was lawful and secondly, whether the nasab of our daughter can be attributed to me?

     

    ANSWER:

    1. Wa’alaikumussalam Encik Khairul. Thank you for the genuine questions. I would like to express my concern towards the problems that you and your wife are currently facing and will try my level best to attend to your queries. First and foremost, referring to the facts that you have presented, we have to determine the issues which need to be addressed. There are two issues here, namely:
      1. Whether the marriage which was solemnised in Taiping was valid according to Syara’  (Marriage validity)?
      2. Whether the nasab of the daughter can be attributed to the father?

     

    WHETHER THE MARRIAGE WHICH WAS SOLEMNISED IN TAIPING WAS VALID ACCORDING TO SYARA’

     

    1. In determining marriage validity, we must observe whether all the pillars of a valid marriage in accordance with syara’ are met. Legally speaking, Section 11 of the Islamic Family Law (State of Selangor) Enactment 2003 provides that:

    A marriage shall be void unless all conditions necessary, according to Hukum Syarak for the validity thereof are satisfied.

     

    1. The provision does not list out one by one the pillars of marriage, hence, credible Islamic books can be of good reference. Referring to Mughni al-Muhtaj ila Ma’rifati Ma’ani Alfaz Al-Minhaj by Shamsuddin Muhammad bin Muhammad Al-Khatib Al-Sharbini, there are 5 pillars of nikah which are also reiterated in kitab Al-Fiqh al-Manhaji, Juz 4, page 55. The pillars of marriage are:
    • Bridegroom(az-zauj)
    • Bride (az-zaujah)
    • Guardian (wali)
    • Witnesses (Syahidain an-Nikah)
    • Pronouncement of Offer and Acceptance (As-Sighah Ijab wa Qabul)

     

    1. Referring to the first pillar of marriage, i.e. bridegroom, we have to consider whether all of the conditions which are required for the bridegroom to satisfy are fulfilled. The conditions are stated in kitab Al-Iqna’ Fi al-Faz Abi Syuja’, Volume 2, page 246. Firstly, the man is lawful to be married. Secondly, the consent to marry is made voluntarily not under duress. Thirdly, a specific man. Fourthly, the man knows that the woman is lawful to be married.

     

    1. Other conditions can be seen from the Qur’an, such as the man must be a Muslim. This is stated in Surah Al-Baqarah verse 221 which states, “And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you.” The bridegroom must also not have four wives at the time of the marriage ceremony. This is in consonance with the verse of the Qur’an which restricts the maximum number of wives for a man to get married up to four, whereby in Surah An-Nisa’, verse 3, Allah says, “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those right hand possesses. That is more suitable that you may not incline [to injustice].”

      

    1. Hence, if you have fulfilled all of these conditions and are not under ihram during the marriage solemnisation, then the first pillar of marriage is fulfilled.

     

    1. Next, with regards to the second pillar of marriage, which is the bride, in the Qur’an, in Surah Al-Baqarah verse 221, whereby Allah says:

    Do not marry unbelieving women (idolaters) until they believe. A slave woman who believes is better than an unbelieving woman even though she allures you.

    In addition, in another verse Allah says, “(Lawful to you in marriage) are not only chaste women who are believers but chaste women among the people of the Book revealed before your time ­ – when you give them their dowers and desire chastity not lewdness nor secret intrigues.”

     

    1. Thus, based on the above two verses, the bride must either be a Muslim or a kitabiyyah. Since there is no mention in the facts that you have presented that your wife is a kitabiyyah, a discussion pertaining to it need not be elaborated further. Apart from being a Muslim, based on the Islamic Family Law in Malaysia by Najibah Mohd Zain et al. (2016), the bride must also not be associated with any marital relationship at the time of the marriage. Moreover, she must also ensure that she is not within the prohibited degrees of blood or fosterage relationship.

     

    1. Therefore, if your wife has no obstruction to get married by fulfilling all the conditions of a valid bride, thus, the second pillar of marriage is also said to have been fulfilled.

     

    1. Moving on to the third pillar of marriage, which is wali. This pillar is of great importance in this present case before us since your marriage was solemnised without your wife’s wali’s knowledge and consent. Shahrin Nasution in his book called Fiqh Lengkap Perkahwinan, defines wali as “a person who has the right to give away a woman in marriage”. This is cited in the Islamic Family Law in Malaysia by Najibah Mohd Zain et al. (2016). The necessity to have a wali in a marriage is emphasised in the hadith of the Prophet which states to the effect that: “There is no marriage without wali”.

     

    1. Based on the facts that you have stated, during the marriage ceremony, your wife’s father who was also a wali mujbir was in existent. Nevertheless, the marriage was solemnised by a purported wali hakim, or simply said, by a person falsely representing himself as a wali hakim. We firstly have to define the meanings of wali mujbir and wali hakim.

     

    1. Wali mujbir is a guardian with the power of compulsion, which means, he has complete rights over the woman under his care, to marry her off to a man that is of the same/similar social status (kafaah) without her prior consent. The power to become wali mujbir is specially designated to the father and the paternal grandfather of the bride only. This is stated by Mohammad Azam Hussain and Alias Azhar in their article entitled; The Definition of Wali (Guardian) in Marriage from the Perspective of Fiqh and Family Law in Malaysia. Section 2 of the Islamic Family Law (State of Selangor) Enactment 2003 also defines wali mujbir as the father or the paternal grandfather and above.

     

    1. On the other hand, wali hakim means “a Sultan or a Leader as the Head of an Islamic State or a Judge or any other person who is granted permission and conferred with the power to become a wali nikah for the woman.” This is stated by Al-Syeikh al-Imam al-‘Allamah Muwaffaq al-Din Abi Muhammad ‘Abdullah bin Ahmad bin Mahmud bin Qudamah, 1972 in Al-Mughni, Volume 7 and cited in the aforementioned article.

     

    1. Whereas, in Fiqh al-Islami wa Adillatuhu, Volume 7, states that “the majority of the ‘ulamaa’ opines that a marriage solemnisation is not valid except if it is solemnised by a wali. A woman cannot marry herself off, nor can she marry off others, and she also cannot appoint others to become a wali to marry her off. If such acts are done, the marriage is not valid regardless whether the woman has already come of age, is of sound mind and is already matured…If the wali refuses to marry her off, thus the hakim shall act as the wali for a person who has no wali.

     

    1. Referring to the facts that you have presented, when the marriage between you and your wife was solemnised in Taiping, Perak, the wali mujbir was in existent and stayed in Kerteh, Terengganu. A wali mujbir can only be substituted with a wali hakim upon three main grounds, namely, when the wali refuses to consent, when the wali disappears (ghaib) or when he is unavailable. These three grounds are stipulated under section 13(b) of the Enactment.

     

    1. With regards to the first ground, in order to know whether there is in fact a refusal from the wali, there must be a prior confirmation and approval by the Judge. Our religion strongly detests if a wali refuses to marry off the woman under his guardianship without lawful reasons. This is explained in the Islamic Family Law in Malaysia by Najibah Mohd Zain et al. (2016).

     

    1. In this present case, there is no express evidence to show that the wali had refused to give his consent for the marriage, as you and your wife did not even convey about the marriage to the wali and the wali did not even have the knowledge regarding the marriage. And your wife only had doubt on whether the wali would or would not consent to the marriage. Thus, the first ground to allow a wali hakim to substitute a wali mujbir would not be successfully invoked.

     

    1. Moving on the last two grounds, i.e., when the wali disappears or when the wali is unavailable, the issue of distance comes into the picture. Based on the decided local cases such as in the cases of Hashim v Fatimah [1977] 5 JH 106, Zakaria v Maria [1977] 3 JH 97, and Saad bin Syafie v Sarimah bt Saad [1992] 9(2) JH 203, only if the wali resides in a place which is situated more than two marhalah from the place of marriage, can the marriage be solemnised by a wali hakim, provided that other required conditions are fulfilled.

     

    1. In this present case, despite the distance between Kerteh and Taiping exceeds two marhalah, the “wali hakim” which solemnised your marriage was a falsely represented wali hakim. And based on the case of Abd Halim bin Md Hashim v Azila bt Ramli @ Ismail [2017] 2 SHLR 57, there was also no pronouncement of wakalah wali from the wali mujbir to the man who solemnised the marriage. Thus, the status of that juru nikah which was tainted with forgery would make the requirement of wali not to be fulfilled in this present case.

     

    1. Next, with regards to the fourth pillar of marriage, which is the presence of two witnesses during the marriage ceremony, the Qur’an, in Surah Al-Baqarah verse 282 states:

    and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as you choose for witnesses, so that if one of them errs, the other can remind her

     

    1. Based on al-Khatib al-Sharbani, page 235, written by Shamsuddin Muhammad bin Muhammad, a marriage is invalid except if it is solemnised in the presence of two male witnesses who are free, ‘adil, able to hear, see and understand the ijab (offer) and qabul (acceptance). Since the facts are silent with regards to the issue of witnesses, thus, the requirement of two witnesses as has been discussed above needs to be satisfied in order to meet the requirement of the fourth pillar of marriage.

     

    1. The last pillar of marriage is the pronouncement of offer and acceptance (as-sighah ijab wa qabul). Based on Ala’eddin Kharofa, page 45, as cited in the Islamic Family Law in Malaysia by Najibah Mohd Zain et al. (2016), there are a few conditions of a valid pronouncement of ijab and qabul. Firstly, the sighah must be made in an official ceremonial gathering. Secondly, both of the parties must be able to hear each other and the pronouncement should be comprehendible by each of them that the contract is for the purpose of marriage. Thirdly, the acceptance should tally with the offer that is made, and lastly, the marriage contract should be witnessed by two witnesses which must be legally acceptable. Since the facts are silent about how the sighah was pronounced, thus, considering all the conditions of a valid sighah are fulfilled, the last pillar of marriage is said to be fulfilled.

     

    1. Nevertheless, based on the above discussion, since the requirement of a valid wali is not present in this case, based on the case of Abd Halim bin Md Hashim v Azila bt Ramli @ Ismail [2017] 2 SHLR 57, the marriage would be fasid or in other words, it would result to an irregular marriage. A fasid marriage happens when there is a lacking of the requirements of a valid marriage such as a marriage without a wali. This is stated by Abdul Azis Bin Abdul Rawi Bin Ali Al-Jabar in his kitab, Al-Hukm bi-Ithbat an-Nasab. Thus, both of you would be separated (faraq) due to the irregularity of the marriage. And the consummation which took place due to the fasid marriage would constitute wati syubhah (syubhah intercourse). Based on Section 2 of the Islamic Family Law (State of Selangor) Enactment 2003, a syubhah intercourse is interpreted as an “intercourse performed on erroneous impression that the marriage was valid when in fact the marriage was not valid (fasid) or intercourse by mistake and includes any intercourse not punishable by Had in Islam”.

     

    WHETHER THE NASAB OF THE DAUGHTER CAN BE ATTRIBUTED TO THE FATHER

     

    1. Referring to an article entitled, “Pensabitan Nasab dan Anak Tak Sah Taraf dari Perspektif Syariah dan Perundangan Islam di Malaysia”, written by Paizah Hj. Ismail, according to the fuqaha’, lineage (nasab) in Islam can be acquired via three means. One of them is when there is a syubhah intercourse between a man and a woman.

     

    1. In the Islamic Family Law (State of Selangor) Enactment 2003, there is a specific provision with regards to a syubhah. It is stated under Section 114 of the Enactment. The Section provides, “Where a man has syubhah sexual intercourse with a woman, and she is subsequently delivered of a child between the period of six qamariah months to four qamariah years after the intercourse, the paternity of the child shall be ascribed to the man.”

     

    1. Based on the above provision and based on the case of Abd Halim bin Md Hashim v Azila bt Ramli @ Ismail [2017] 2 SHLR 57, if your daughter was 6 months after your marriage, then, the nasab of your daughter could be attributed to you as the biological father of the child.

     

    CONCLUSION:

     

    1. In conclusion, based on the foregoing discussions, the answer to the question on your marriage validity is that, your marriage that was solemnised in Taiping, Perak by a falsely represented wali hakim, would result in the marriage being fasid (irregular) due to the non-fulfilment of one of the pillars of nikah (arkan an-nikah).Whereas, in respect of the attribution of lineage of your daughter to you, if it can be satisfactorily proven that your daughter was born 6 months after the solemnisation of your marriage, then, it is most likely that the nasab of your daughter could be attributed to you. Since your queries involved several complicated matters, I humbly advise you to seek and consult a Syarie Lawyer who is eligible to address and answer these questions.

    Article published for Peguam Syarie Faiz Adnan

  • break-off engagement before marriage

    BREACH OF BETROTHAL: BREAK-OFF AN ENGAGEMENT A MONTH BEFORE MARRIAGE

    BREAK-OFF ENGAGEMENT QUESTION: Assalamu’alaikum Peguam Syarie Faiz Adnan. I am Nur from Bangsar Utama. I was engaged with my ex-fiancée in a proper engagement ceremony that was held at my parents’ house early March this year. Both of our families have set the date of our marriage ceremony to be held on 15th July 2018. To my utter dismay, in mid-June very recently, my ex-fiancée had phoned me to convey that he desperately had to cancel off our engagement.  I was caught by surprise to receive the terrible news as we were always in good terms ever since we got engaged. What angered me more and made me feel humiliated was to find out that my ex-fiancée had actually married his neighbour in Bukit Damansara early this month. I was so disappointed as my parents and I have spent a large sum of money on catering, wedding dress and shoes, door gifts, wedding cards and we have paid deposit for the wedding venue. I would like to inquire if there is a possibility for me to recover the expenses that we have spent as preparations for the wedding and if I could claim anything from my ex-fiancée due to humiliation and embarrassment that we have to bear in consequence of the cancellation of engagement? Thank you.

     

    ANSWER:

    • Wa’alaikumussalam. Thank you Puan Nur for the question. First and foremost, I would like to express my utmost sympathy towards the trial that had befallen you and your family due to the cancellation of engagement. As a believer of the Muslim creed, I believe that there is an underlying hikmah (wisdom) that is only known by Allah regarding the incident that had occurred to you and your family. Before I give some legal advice which hopefully would enlighten you on how to resolve this matter, it is best to firstly understand the concept of engagement in Islam before we delve into the legal repercussions and remedies of breach of betrothal (engagement) in the eyes of the Malaysian Islamic Family Law. 

     

    • According to the The Islamic Law of Personal Status written by Jamal J Nasir, betrothal or engagement in Islam can be defined 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.

    From this definition, betrothal can simply be understood as a proposal by a man for the woman’s hand in marriage either by asking her directly or through an intermediary. This proposal would be a good avenue for the man to explain and tell the family of his future wife regarding his status, financial standing and family background, among others. It is also a norm that both families would discuss in detail about the engagement contract such as the total or estimated amount of marriage expenses to be spent for the marriage ceremony, the date and place of the ceremony, etc. 

    • What most of us might not know and realise is that betrothal or engagement is not merely an adat (custom). It is also recognised and in fact encouraged under the Islamic law. There are authorities for betrothal in the Holy Qur’an and hadith of the Prophet Muhammad s.a.w. In Surah Al-Baqarah verse 135, Allah says:

    There is no blame on you if you make an offer of betrothal or hold it in your heart. Allah knows that you cherish them in your hearts.

    In an authentic hadith, the Prophet Muhammad s.a.w. says:

    When one of you asks a woman in marriage, if he is able to look at what will induce him to marry her, he should do so. 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. (Saheeh Muslim) 

    • Having known the general concept of betrothal in Islam, we shall proceed in determining whether you have a right in law, to claim the wedding preparation expenditures and damages due to humiliation. A few issues can be summarised as follows:
      • Whether can claim the compensation for the wedding preparation expenses?
      • Whether can claim damages due to humiliation?

     

    WHETHER HUKUM SYARAK AND/OR THE ISLAMIC FAMILY LAW IN MALAYSIA ALLOW(S) THE   PAYMENT OF COMPENSATION DUE TO BREACH OF BETROTHAL?

    • The issue pertaining breach of betrothal is not foreign under the Islamic law. As betrothal is a species of contract or a covenant, verse pertaining to breach of covenant would apply. In the Qur’an, Allah says in Surah Al-Israa’ verse 34:

    وَاَوۡفُوۡا بِالۡعَهۡدِ​ۚ اِنَّ الۡعَهۡدَ كَانَ مَسۡـُٔوۡلًا‏

    And fulfil (every) covenant. Verily, the covenant, will be questioned about.

    • In another verse, Allah says in Surah Al-Ma’idah, verse 1:

    يٰۤـاَيُّهَا الَّذِيۡنَ اٰمَنُوۡۤا اَوۡفُوۡا بِالۡعُقُوۡدِ​

    O you who have believed, fulfil [all] contracts.

    • Whereas the hadith  of the Prophet which governs this matter is reported in Saheeh Muslim which says to the effect that:

    Muslims are bound by their promises and the conditions which they have agreed to.

    • On the other hand, the four major schools of thought (madhhahib) provide different stances regarding breach of betrothal. According to the Hanafi School, if the gifts are still intact and their characters remain unchanged, or have not been consumed nor destroyed, the giver can request for the return of the gifts, if the breach of engagement is committed by the other party. Meanwhile, the Maliki School is of the view that if the breach is committed by the man, he has no right to seek the return of the gifts given by him. In contrast, if the woman is the one in breach, the man would have the right to request for the return of the gifts regardless whether the gifts are still in existence or not. If the gifts have been damaged, the woman has to pay their values.

     

    • Our school of thought (Shafi’I School) opines that if there is a breach of betrothal, gifts should be returned whether they still 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. 

     

    • From the above, we could observe that there is a juristic opinion which takes into account the gender of the defaulting party as a determining factor with regards to the liability in the case of breach of betrothal. Whereas, another juristic opinion views that the return of gifts/goods is only required if they are still intact. 

     

    • Moving on to the law and practice in Malaysia, since Puan Nur is from Bangsar Utama, which means within the province of the Federal Territory of Kuala Lumpur, thus by virtue of Section 4 of the Islamic Family Law (Federal Territory) Act 1984 (thereafter shall be referred in short as “IFLA”) which states, “Save as is otherwise expressly provided, this Act shall apply to all Muslims living in the Federal Territory and to all Muslims resident in the Federal Territory who are living outside the Federal Territory the provisions under IFLA which govern betrothal-related matters would be applicable on Puan Nur.

     

    • 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 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.

    • Thus, from the above provision, the essential points that can be deduced are:
      • There must be an oral or written betrothal agreement or covenant
      • The agreement is entered into by the parties personally or through an intermediary
      • There is a breach of such an agreement by one party without lawful reason’
      • The defaulting party shall be liable to return the betrothal gifts if they are still in existent, if not, the value of the gifts must be compensated
      • The defaulting party must also pay whatever expenditures that have been spent in preparation for the marriage (that has to be tendered to Court)
      • Such gifts and expenses may be recovered by bringing an action in the Syariah Court

     

    • In the prominent case from the State of Kedah cited as Aishah v Jamaluddin (1978) 3 JH 104, the male party who had breached the engagement was ordered by the Court to pay compensation as agreed by the parties in the betrothal agreement which amounted to a sum of RM 24 for mas kahwin, RM 800 for marriage expenses, RM 25 for clothes, RM 400 for house repair in preparation for the wedding, and also the ring that was given by the man to the woman was allowed by the Court to be kept by the woman.

     

    • Based on the aforementioned case and provision from the statute, rest assured, after assessing the facts of your case that you have relayed, since the party in breach is your ex-fiancée, if you could prove to the Court that your ex-fiancée had broken off the engagement without lawful reason (“sebab yang sah”), you are likely would be able to recover the expenditures that you have spent in preparation for the marriage (provided that all the expenditures can be proved by way of receipts and/other documentary evidence).

     

    WHETHER CAN CLAIM DAMAGES DUE TO HUMILIATION

    • With regards to the above issue, the case of Salbiah Binti Othman lwn. Haji Ahmad Bin Abdul Ghani is relevant to be regarded as a reference. In this case, the Plaintiff, Puan Salbiah binti Othman and the Defendant, Tuan Haji Ahmad bin Abdul Ghani were engaged on 28th July 2001 and the date of marriage had been set and decided to be held on 31st August 2001. Unfortunately, the Defendant had breached the engagement through his representative on 17th August 2001. Due to the breach and the cancellation of the engagement, the Plaintiff had sought from the Court damages due to humiliation amounting to RM 200,000 and compensation for the expenses amounting to RM 9677.00.

     

    • In respect of the first claim, the honourable Court decided that such claim is not within the jurisdiction of the Syariah Court and the most suitable place for such a claim to be brought to, would be the Civil High Court (Civil Claim), as this matter is concerning general damages due to humiliation/embarrassment. 

     

    • Hence, referring to the above case, since a claim for damages due to humiliation is a tortuous claim that is clearly not within the jurisdiction of the Syariah Court, I would advise Puan Nur to bring that particular claim to the Civil High Court instead of to the Syariah Court, as the latter does not have the jurisdiction to try such a claim. 

     

    CONCLUSION

    • In conclusion, having studied the facts of your case, I believe that Puan Nur would be able to seek for compensation for all the expenses that have been incurred by yourself and your family in preparation for the marriage if you would be able to prove that your ex-fiancée had breached the engagement due to unlawful reason. The learned Judge would determine the exact costs to be borne by the defaulting party due to the breach of engagement. Nevertheless, as what have been explained in the foregoing paragraphs, the claim for damages due to humiliation is not a claim to be brought and sought before the Syariah Court. The alternative would be for Puan Nur to bring such a claim to the Civil High Court.  It is advisable for Puan Nur to consult and seek assistance of a Syarie lawyer as this issue involves complicated matters revolving around the law and hukum syarak which are best dealt by the expert in this respective field. Wallahu a’lam. Thank you.

    Article published for Peguam Syarie Faiz Adnan