Family Law 1 Islamic This Is A Comprehensive Notes As The Information Were Gathered From Lecture

lOMoARcPSD|5194439
Family LAW 1 ( Islamic) - This is a comprehensive notes as

the information were gathered from lecture
Islamic Family Law (Universiti Teknologi MARA)
StuDocu is not sponsored or endorsed by any college or university

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)
lOMoARcPSD|5194439
BETROTHAL IN ISLAM
Definition: Betrothal (khitbah) under Islamic law is a promise to marry and not a marriage contract.
Al- Baqarah: 234 - 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.
Hadith - “A matter or deed which is regarded as good by Muslim community is also good with Allah”
 Hence, betrothal is recommendable in Islam and it is not a religious obligation. It is based on

customary practice which becomes a principle of Islamic law that is not contradicting the Syariah.
Types of woman that cannot be betrothed/ proposed:
 Engaged woman
 Sahih Al- Bukhari, Kitab al- Nikah - It is prohibited to propose to an engaged woman as it
can create hostility and enmity between 2 brothers in Islam. Ibn Umar r.a reported that
Rasulullah SAW said: A person shall not enter into a transaction when his brother had
already entered into but not finalized and he should not make a proposal already made
by his brother, until he permits it or until he gives it up.
 Iman Shafi’i is of the view: If a woman had accepted a proposal of marriage by a man,
another man is not allowed to propose to her for marriage. However, if the decision of the
woman is unknown, it is permissible for another man to propose to her.
 If 1st proposal had been accepted: Fuqaha’ unanimously agreed that it is prohibited
for another man to ask for her hand in marriage because as it is considered as infringing
the right of the 1st man. It may create disputes, hostility and animosity.
 1st proposal had been rejected: Permissible for another man to propose to her because
the right of the first man has yet to be confirmed. He has no right to get angry at the 2 nd
man.
 1st proposal has yet to be accepted nor rejected: Some scholars are of the view that it
is prohibited as it would amount to challenging the 1 st proposal which might be
accepted. Some other scholars have contradicting view as silence means an indirect
rejection of the proposal. A proposal which has not been responded to is not completed
or confirmed.
 The ruling might be different if the woman already has the tendency either to accept or
reject. If she has the tendency to reject, some scholars view it as permissible, if the
woman has the tendency to accept it, it is prohibited for another man to propose her.
According to Ibn Hazm, it is prohibited for another man to propose to the woman
regardless of the tendencies, except if the 2 nd man is preferable in his religion and kind
(munasyarah) for the woman.

lOMoARcPSD|5194439
 A woman under the period of “iddah” following the death of her husband or divorce
 If the woman is a divorcee, it must not be made during iddah period of Talaq Rajie
(revocable divorce). It is haram to propose because they can ruju’.
 Talaq Bain (irrevocable divorce - iddah period 3 months): It is permissible during iddah
period but by Kinayah/implicit (Maliki & Syafie). Haram during iddah period whether Sareh
or Kinayah (Hanafi).
 If the woman is a widow (iddah period is 4 months 10 days): the proposal must be made by
Kinayah/implicit.
 A married woman
 A woman that comes within the prohibited degree of relationship either by consanguinity (blood
relationship), affinity or fosterage (susuan).
Prohibitions during the period of betrothal:
 Private meetings without the presence of mahram

 Coupling and dating
 Parties are not expected to act like husband and wife
 No right to nafkah accrues out of this relationship
 Can look at each other but only confined to certain parts of the body ie face and hands.
a) Hadith: The Prophet SAW said that when man and woman meets, the third one will be the Satan.
Procedure of betrothal;
b) Man can see the woman (vice versa)

1. The Prophet SAW does allow the man to see the woman when they want to marry.
2. Hadith: Al Mughirah Ibn Syu’bah proposed to a woman and the Prophet SAW said to him,
look at her for this is appropriate in order to ensure agreement and harmony between you.
3. Abu Hurairah said that, “ I was in the company of Prophet SAW when there came a man and
inform that he had contracted to marry a woman of the Ansar. Prophet SAW said, “Did you
cast a glance at her”. He said no and the Prophet SAW said, “go and cast a glance at her”.
 Jabir ibn Abdullah said that Prophet SAW said: “If any one of you become engage to a woman
and is able to see something of her which makes him wish to marry her, then let him do so.”

lOMoARcPSD|5194439
Breach of betrothal agreement:
Al- Isra: 34 - And fulfill (every) covenant. Verily the covenant will be questioned about.
Hadith Sahih Muslim - Muslims are bound by their promises and the conditions which they have
agreed to.
 Hanafi School: If the gifts are still intact and have not changed their character or not been
consumed or destroyed, the giver can ask for the return of the gifts, if the proposal is breached by
the other party.
 Maliki School: If the breach is by the man, he has no right to ask for the return of gifts given by
him. If the breach is by the woman, he has the right to ask for the return of the gifts, whether the
gifts are still in existence or not. If they have been destroyed, their value has to be paid.
 Shafi’i School: The gifts should be returned whether they are in existence or not. If the goods are
still in existence, then the goods, themselves should be returned. If the goods have been
consumed, used or lost, their value should be returned.
 Hanbali School: Follows the same view as Shafii School

lOMoARcPSD|5194439
The law and practice in Malaysia:
Section 15 of the Islamic Family Law (Federal Territories) Act (IFLA) - If any person has either (1)
orally or in writing, and either (2) personally or through an intermediary, entered into a betrothal
according to hukum syara’, and subsequently refuse (3) without lawful reason to marry the other
party, the other party being willing to marry, the party in default shall be (4) liable to return the
betrothal gifts, or the value thereof and to (5) pay whatever expenses that have been incurred in
good faith by or for the other party in preparation for the marriage and such gifts and expenses may be
covered by (6) action in the Syariah Court.
Cases:
Aishah v Jamaluddin (1978)

A woman claimed the payment of rm25 for maskahwin, rm800 for marriage expenses and also claimed
the right to keep the ring. A promise to marry had been made by the two parties involved. The man
subsequently broke his promise. The Syariah Court ordered the man to pay damages as agreed in the
agreement earlier entered into between the parties. He was also ordered to pay rm25for clothes and
rm400 as the cost of repair of the house.
Hussin v Moh (1972)

The appellant on behalf of his son sought the daughter of the respondent in marriage. A betrothal was
arranged and the maskahwin was agreed to be rm500. The respondent spent rm350.40 in preparation
for the marriage and on the day of the marriage, the appellant paid rm300 in cash and rm200 in
jewellery which the respondent refused to accept. The marriage did not take place. Respondent sued the
appellant for rm350.40 for the cost in preparation for marriage. The learned Kadi gave judgement I=in
favour of the respondent and the appellant appealed. On appeal, the judgment was made in favour of
the appellant as the refusal of the respondent to accept rm300 in cash and rm200 in jewellery is
unreasonable.
Salbiah bt Othman v Haji Abdul Ghani (2006)

An engagement was entered into between the plaintiff and the defendant on 28/7/2001. The date of
nikah was agreed that is on 31/8/2001. However, the defendant called off the engagement on
17/8/2001. The plaintiff filed an application for a) claim for damages due to humiliation rm200,000 and
b) compensation for the expense amounting to rm9677. The syariah court decided that the defendant
without lawful reason had breached the promise to marry the plaintiff after both parties had made the
agreement. The court dismissed the claim for damages as it has no jurisdiction. The court granted the
claim for expenses in preparation for the marriage in the sum of rm6277.10.

lOMoARcPSD|5194439
Maria Tunku Sabri (2012)

The appellant failed in her appeal to get a business man pay for rm5.5 million compensation for
breaking the promise to marry her. The COA agreed that Maria had no capacity to enter into a contract
of marriage as she was already married to another man at the time the promise was made. As such, the
rm5.5 million settlement agreement that followed the breach of the promise was considered null and
void under the Contracts Act 1950. The judges were unanimous in their decision. The appeal was
dismissed on the grounds that Maria’s claim was intertwined with the issue of betrothal, which fell
under the jurisdiction of the Syariah Court as both the parties were Muslims. The businessman also
contended that she was already married and as such, was in no capacity to enter into contract to marry
another man under Islamic law.
Mohd Azla v Mokhtar & Anor

Plaintiff (man) was ex-fiance of D2 (woman). D1 is the father of D2. During the engagement
ceremony, P presented gifts amounted rm10,050. P alleged that D1 had promised during the
engagement that he would pay double compensation for all the engagement gifts if the breach was on
the part of the D2. D2 broke the engagement on the ground that the P’s relative had made an allegation
that she was not a virgin. P claimed compensation for breach of the betrothal (double compensation)
and general damages of rm50k for humiliation.
The Syariah Subordinate Court (Sepang) allowed the P’s application and order all gifts are to be
returned according to the agreement and D has to pay rm22,500 that is double the amount of the
engagement gifts.

lOMoARcPSD|5194439
MARRIAGE IN ISLAM (NIKAH)
Definition:
Nikah literally means joining together or tiding together. Technically, it is a marriage or a contract
which legalize relationship between man and woman.
Contemporary Jurist - Marriage includes ibadah/ muamalat

Shaik Abu Zahrah - It is a contract of one prescribed by legislature which entitle each party to enjoy
each other in a lawful manner. It is an organized relationship between a man and a woman including
sexual relationship which affect both of them to acquire mutual and social responsibility.
An- Nisa 4:3 - Marry such women as seem good to you, 2,3 and 4, but if you fear that you will not do
justice (between them), then marry only one.
An- Nur 24:32 - And marry those among you who is single and solihin of your slave and made
servant…
Sunnah - Prophet SAW said “O young people, men and women! Whosoever can bear the burden of
marriage, let him or her get married. It is indeed contentment to the eye and a protection to the modest
parts.”
“When one is married, he secures half of his religion. So let him fear God in the other half.”
Hadith - “Marriage is my sunnah, whoever keeps away from my sunnah, he is not among me.”
Hukum Nikah:
Marriage is a solemn covenant comprises muamalat/ibadah. It is a divine relationship. Originally,

hukum nikah is sunat (recommended).
 Sunat- Can maintain wife, can control nafs, will not keep away from ibadah.
 Wajib- Can maintain wife, fear of zina.
 Maliki: If fear of zina, you must marry even if you have no job.
 Hanafi: Same as above but must be able to pay dowry and can earn for living.
 Haram: Cannot maintain wife, suffer serious illness except if the woman agrees, marriage may
lead to immoral act.
 Makruh: No sexual desire, no love for wife, cannot pay maintenance to the wife, slacken religious
duty.
 Harus: Has means but no desire to marry.

lOMoARcPSD|5194439
Pillars (Rukun) and Conditions For Marriage:
Syafie-
a) Prospective Husband
b) Prospective Wife
c) Wali (guardian)
d) Two witnesses, and
e) Pronouncement of offer and acceptance - Sighah (Ijab and Qabul)
Conditions for Prospective Husband:
 Islam (Muslim)
 Al- Baqarah: 221 - Do not give (believing woman) in marriage to idolaters until they believe
and certainly a believing servant is better than an idolater, even though he should please
you , these invite to the fire, and Allah invites you to the garden and to forgiveness by His
will and makes clear His communications to men, that they may be mindful.
a) Not within berihram haji or umrah
b) Specific man (ta’yin)
c) Not having four wives
1. An- Nisa 4:3 - Marry such women as seem good to you, 2,3 and 4, but if you fear that you
will not do justice (between them), then marry only one.
2. Hadith: Ibn Umar narrated that before Ghailam Al- Shaqafi converted to Islam, he had 10
wives. When he became Muslim, Prophet SAW instructed him to choose 4 out of his 10
wives.
 Voluntarily and not under duress.
 A man and not khunsa musykil.
 Doctor will decide whether the person is a male or a female according to medical evidence.
Conditions for Prospective Wife:
 Muslimah or Kitabiyyah (will be explained later)

 Al- Baqarah: 221 - Do not marry unbelieving woman (idolatresses) until they believe and
certainly a believing maid is better than an idolatresses woman, even though she should
please you.
a) Specific woman
b) Not a wife of another person and not within the period of iddah in connection with that person.
1. Al- Baqarah 2:235 - There is no blame on you respecting that which you speak indirectly in
the asking of (such) woman in marriage or keep (the proposal) concealed within you minds
2. An- Nisa’ 4:24 - Also forbidden are all married woman, except those (captives and slaves)
whom your right hands possess.

lOMoARcPSD|5194439
3. Nor Radhiah bt Ramli v Aziz bin Othman

A marriage between Aziz and Radhiah was held invalid by the Kuala Terengganu Syariah High
Court as the applicant, Radhiah was still in her period of iddah from the divorce with her first
husband when she married Aziz on 16th August. When applying to marry Aziz in KT, she had
stated that she was an unmarried woman when in fact she had been ordered by the KT Lower
Syariah Court to undergo the iddah from 28th July.
a) Not within berihram haji or umrah.

b) Woman who is not a muhrim to the prospective husband..
1. Permanent Prohibition (An- Nisa’: 22-24)
1) Consanguinity (Nasab), which include mother, grandmother, daughter, granddaughter,
sister, daughter of sister & brother, paternal/maternal aunty.
1. According to Shafi’I, father can marry his own illegitimate child while according to
Jumhur, it is haram marrying his own illegitimate child.
2) Affinity (On marriage ties), which include mother in law, daughter in law, stepmother,
stepchild.
2. If stepfather has consummated the marriage with their mother: HARAM!!
3. If otherwise, according to Jumhur, the stepfather can marry the stepdaughter after
divorcing his wife but according to Maliki and Hanafi, they cannot marry each other.
3) Fosterage (milk relationship/susuan). All women and men who cannot marry by
consanguinity is also haram to marry by fosterage.
a) To determine fosterage depends on the quantity of milk. Hanafi/ Maliki: 1 suckle,
Shafii: 5 suckle, Hanbali: 3 suckle.
4. Age of child: from birth till maximum 2 1/2 years for Hanafi School, while other
schools is from birth till 2 years.
5. Prophet SAW said suckling is only valid if it takes place in the suckling period.
6. Milk must be sucked directly from breast. However, if it is pumped, it is acceptable.
7. If the pumped milk is mixed with other type of milk, it must be determined which milk
is more. However, the milk should not be mixed with that of other women in a way that
it would create confusion as to whose milk the child has drank.
Effect of marriage due to consanguinity, affinity and fosterage:
 The marriage is void and must talaq immediately.

 If it is known after consummation, wife can recover dowry.
 If it is known before consummation, nothing can be recovered.
 Wife is not entitled for nafkah eddah whether it is known before or after consummation.

lOMoARcPSD|5194439
a) Temporary Prohibition.
1) Marry another man’s wife, woman who is still in eddah (4 months 10 days), 5 th wife, pregnant
woman (until birth of the child), 2 living sisters at a time.
Marriage with Kitabiyyah:
Section 10 (1) IFLA: No man shall marry a non- Muslim except a Kitabiyyah.
Section 2 IFLA: Kitabiyyah means
a) a woman whose ancestors were from the Bani Ya’qub; or
b) A Christian woman whose ancestors were Jews before the prophethood of the Prophet
Muhammad; or
c) A Jewess whose ancestors were Jews before the Prophethood of the Prophet Isa.
a) Ibn Hajar in his commentary on Minhaj Al Talibin said: Jewish and Christian women whose first
ancestors are undoubtedly known to have been converted to their religion after the mission of the
Prophet SAW or converted to Judaism after the mission of Jesus or whose conversions are in
doubt as to whether they were before or after the mission of Muhammad SAW or that of Jesus,
are forbidden to the Muslims to marry.”
b) Shafi’I jurists in Malaysia have adopted strict and restrictive definition of Kitabiyyah.
c) Case: Abdul Razak v Maria Menado, the wife was at the time of marriage a Christian, but her
ancestors were not originally Christians but were converted to Christianity after the coming of
Islam. The court held that the marriage was void as ‘at the time of the marriage’ the defendant
was a Christian whose ancestors were converted to Christianity after the coming of the Prophet of
Muhammad SAW.
Minimum age for marriage:
d) General rule: No age limit of marriage in hukum syara’.

e) Islamic law: age of majority is attained when a person reaches the age of puberty (able to
understand and make judgment).
f) An- Nisa: 6 - “And test the orphans until they attain puberty (the age of marriage), if then you find
sound judgment in them release the property to them.”
g) Hadith- A’isha (Allah be pleased with her) reported: “Prophet Muhammad SAW married me
when I was 6 years old and I was admitted to his house when I was 9 years old.”
h) Hanafi: 18 years for male, 16 years for female
i) Shafi’I: 15 years for both.
j) Section 8 IFLA: 18 years for male, 16 years for female, but Syariah Judge has discretionary
power (if there is exceptional situation).

lOMoARcPSD|5194439
1. No marriage may be solemnized under this Act where either the man under the age of 18 or
the woman is under the age of 16 except where the Syariah Judge has granted his permission
in writing in certain circumstances.

lOMoARcPSD|5194439
Consent:
 Prospective Wife
 Shafi’I: A virgin girl, commendable (sunat) to obtain her consent. Wali Mujbir can compel
her to marry.
 Hanafi: If a woman is major, the wali must get her consent, but if the woman is a minor, she
must get consent from her wali. However, she can repudiate the marriage after she become
major/consummate the marriage.
 Jumhur: Can by implying (smile/laugh) if the woman is a minor. If she is a divorcee/widow,
there must be express consent.
 Section 13 IFLA: 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 thereto in accordance with Hukum Syara’, 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
to the Wali Raja to solemnize the marriage in accordance with Hukum Syarak; such consent
may be given wherever there is no Wali 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.
 Prospective Husband -
 Wali: In Malaysia, the consent of Wali is compulsory (WAJIB).
a)

lOMoARcPSD|5194439
Wali & Requirements of Wali:
b) Shafi’I: Wali is pillar (rukun) of nikah.

1. Hadith relied by Shafi’I: Aishah reported that Prophet SAW said, “The marriage of woman
who marries herself without the consent of guardian is void. He said these 3 times. “There is
no marriage contract except that contracted by a guardian and the one who has no guardian
has the ruler as guardian.”
 Hanafi: Wali is not rukun. It is commendable.
 Hadith relied by Hanafi: Ibn Abbas reported Prophet SAW, “A woman who has been
previously married has more right to her person than her guardian and virgin’s permission
must be asked, her permission being her silence.”
Conditions required for Wali:

 Islam
 Male
 Baligh
 Voluntarily and not under duress
 Not within berihram haji or umrah
 Not fasiq (person who commits major sin, person who persistently commits major sin)
 Sound mind
Types of Wali:
 Wali Khassah (Wali Nasab)- natural guardian/ guardian who is in blood relative of the ward and
one of the specified categories in syariah.
 Wali Mujbir
 Wali Ghayr Mujbir
 Wali Aqrab
 Wali Ab’ad
 Wali ‘Ammah (Wali Ghayr Nasab)
 Wali Tahkim
 Wali Hakim/Raja
a) Wali Mujbir: Wali who is given power to proceed with the marriage of his virgin daughter (who
is of sound mind and has come of age) without her permission. It refers to natural father and
paternal grandfather only.
b) Wali Ghayr Mujbir: Wali who has no power with the marriage of virgin girl without her
permission. It refers to all wali except natural father and paternal grandfather.
c) Wali Aqrab (dekat): A person who is closer to the bride due to blood ties and has more right to
become wali at her wedding.

lOMoARcPSD|5194439
d) Wali Ab’ad (jauh): A person who is not close to the bride in blood ties and has no right to become
wali at her wedding if wali aqrab exists and fulfill conditions required for wali.
e) Wali Tahkim: A wali that is entitled to solemnize a marriage of a woman where she has no wali
nasab and did not meet the conditions of using wali hakim/raja.
f) Wali hakim/raja: Legal guardian appointed by the ruler or court.

lOMoARcPSD|5194439
List of Priority of a Wali:

a) Natural Father
b) Paternal Grandfather and above
c) Brother of the same father and mother
d) Brother of the same father
e) Nephew of the same father and mother and below
f) Nephew of the same father and below
g) Paternal uncle of the same father and mother
h) Paternal uncle of the same father
i) Son of the paternal uncle of the same father and mother
j) Son of the paternal uncle of the same father
k) Paternal grand-uncle of the same father and mother
l) Paternal grand- uncle of the same father, bla bla bla……
19) Sultan (Wali Raja) or ruler
Reasons for transfer of Wali Aqrab to Wali Ab’ad:

a) Wali aqrab has not attained the age of puberty
b) Wali aqrab is fasik
c) “ of unsound mind
d) “ is of different religion with the woman
e) “ dead
Reasons for transfer from Wali Khassah to Wali ‘Ammah:

1. Wali Nasab in not available
2. Wali Nasab lives 2 marhalah (90 km) or more
3. Absence of Wali Aqrab, his whereabouts is unknown, not known whether he is alive or dead, and no
order of presumption of his death has been made by any Kadi; if such order has been made, his
perwalian shall be wali ab’ad and not wali raja.
4. Wali Aqrab refuse to be wali and the kadi is satisfied that is so.
5. Wali Aqrab is within ihram haji or umrah
6. Wali Aqrab himself is about to be married to the woman concerned.

lOMoARcPSD|5194439
a) Section 13(b) IFLA: A marriage shall not be recognized and shall not be registered under this Act
unless both parties to the marriage have consented thereto, and 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 to the Wali Raja to solemnize the
marriage in accordance with Hukum Syarak; such consent may be given wherever there is no
Wali 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.
b) Section 7 IFLA: A marriage shall be solemnized in accordance with Hukum Syarak by (1)(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. (2) Where the
marriage involves a woman who has no Wali Nasab in accordance with Hukum Syarak, the
marriage shall be solemnized only by the Wali Raja.
Hussin v Sa’yah & Anor (No consent from Wali)

The plaintiff applied for the marriage between his daughter and the second defendant without his
consent or the consent of his representative, be annulled. It appeared that the couple had gone to
Thailand to get married and they were married before a lebai who was not a qadi without the consent of
the plaintiff as the wali or his representative. The learned qadi declared that the marriage was void and
he annulled it. In this case, there was no evidence that the wali has refused to give his consent and even
if the wali had refused, the parties could have applied to the Imaam or the court to obtain the consent of
the Wali Raja.
Azizah bt Mat v Mat Bin Salleh (Refusal to give consent)

The plaintiff aged 21 years old applied to be married by a Wali Hakim as her father refused to marry
her off to Mansor bin Isa. The man had on many occasions asked for her hand in marriage but was
refused by the defendant on the ground that his daughter should secure a job first. It was held that the
refusal was baseless and the court allowed her application to be married by a Wali Hakim.
Ismail v Aris Fadhilah (Priority of Wali)

Marriage was solemnized by the brother of the bride as her wali. At the time of the marriage, her
paternal grandfather was still alive and fulfilled all the conditions required for wali. The parties
subsequently had 3 children. The court held that the marriage was invalid (syubhah) but the children
were legitimate as the marriage was based on a belief that it was a valid marriage.
Re Wan Abdul Aziz bin Embong

Marriage was solemnized in Narathiwat by Wali Raja who has limited power only in Pattani. The court
held that the marriage is not valid.

lOMoARcPSD|5194439
Hashim v Fatimah (Distance more than 2 marhalah)

The Chief Qadi held that the marriage that took place in Thailand was invalid. Both the parties in
marriage and the Wali of the woman were resident in Kedah but the marriage was held in Padang
Besar, Thailand by Wali Hakim. The Chief Qadi held that as the distance between the residence of the
woman’s wali and the place of marriage was less than two marhalah, the marriage was invalid. He
ordered that the woman be separated from the man and should observe iddah.
Saad bin Syafie v Sarimah Bt Saad (distance)

The Qadi held that the marriage that took place in Thailand was invalid. Plaintiff applied for the
marriage between his daughter (1st Defendant) and the 2nd Defendant be annulled. The 1st and 2nd
defendant has escaped to Padang Besar, Thailand for marriage. Plaintiff showed a plan of route from
his house to Padang Besar and the distance is 78 km, less than 2 marhalah. Due to that, the Qadi held
that the marriage was invalid.
Haji Mohamed v Bahrunnasran dan Mazliani bt Mohamed

The plaintiff, a father (Wali Mujbir) made an application for the marriage between his daughter,
Mazliani and Bahrunnasran to be annulled on the grounds that the marriage was without his knowledge
and consent as father being Wali Mujbir, Bahrunnasran and Mazliani are not of equal status (not
sekufu) as Bahrunnasran is suffering from HIV and he is a drug addict. The marriage has been done
twice, one in Pasir Puteh, Kelantan by Wali Hakim and second, in Narathiwat, Thailand. The issue for
the first solemnization was the usage of Wali Hakim when Wali Nasab is still in existence. The issue
for the second solemnization was due to both parties to the marriage are not of equal status. The court
held that the conduct of Wali Hakim was in conflict with Hukum Syarak for the marriage of parties
who are not equal in status. This case shows that in the event where the Wali Nasab is still in existence
and the Wali Nasab has a sufficient reason for the refusal of marriage, the usage of Wali Hakim is
invalid although the distance involved was more than two marhalah.
Syed Abdullah Al- Shatiri v Shariffa Salmah

This was an appeal from the order of the Syariah Court declaring a marriage solemnized by the
appellant between his daughter, the respondent and one Syed Idros to be void. The application to the
Syariah Court was made by the father, the appellant, who gave evidence of themarriage he solemnized
as “wali mujbir” for his daughter and asked the Syariah Court to make an order that his daughter
should accept the marriage as valid and go live with her husband. The court allowed the application
and held taht according to the Shafi’I, the marriage was valid.

lOMoARcPSD|5194439
Witness:
Al- Baqarah: 282 - “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 him.”
Hadith: Prophet SAW said, “there is no marriage except where there is a wali and two witnesses that
are just (adil). Otherwise, the marriage will be invalid.”
Shafi’I: Two male witnesses

Hanafi: Allows 1 male witness and 2 female witnesses
Conditions required for witness:
c) Must not be less than 2 persons

d) Must be Muslims
e) Must be persons of sound mind
f) Must be baligh
g) Must be male
h) Must be persons who can hear, see and speak
i) Must understand the requirements of sighah (ijab and qabul)
j) Must be just
Section 22(2) IFLA (Entry in marriage register): The entry 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.
Sighah (Ijab and Qabul):
k) Sighah: Pronouncement of offer (ijab) from a wali of the bride together with the pronouncement
of acceptance (qabul) from the groom.
l) Ijab or offer from the bride’s wali or his representative.
m) Qabul or acceptance- Confession from bridegroom that he accepts the woman’s willing to become
his wife.
n) Sighah Aqad according to Shafi’I and Hanbali School:
1. Must use the word NIKAH or TAZWEEJ (words of the same meaning) and explicit
2. The offer and acceptance must be made in an official ceremonial gathering
3. Both parties should hear each other and it should be understood by each one of them taht the
purpose of the contract is marriage
4. The acceptance should match the offer in expression, and

lOMoARcPSD|5194439
5. The contract should be formally witnessed by two legally acceptable witnesses.

o) Sighah Ijab: The lafaz tazweej or nikah or the translation of both in whatever language shall be
used. It may be made by the wali himself or his representatives.
p) Sighah Qabul: Acceptance by the man himself or his representative after sighah ijab (offer)
without the insertion of any foreign words or undue delay.
PROCEDURE AND FORMALITIES & REGISTRATION OF MARRIAGE
Procedure:
*Kariah Masjid: in relation to a mosque, means the area, the boundaries of which are determined under
Section 75 of Administration Act
1. Application for permission to marry.

a) Section 16(1) IFLA (FT): Whenever it is desired to solemnize a marriage in FT, each of the
parties to the intended marriage shall apply in the prescribed form for permission to marry,
to the Registrar for the kariah masjid in which the woman is resident.
b) 16(2): If the man resides in different kariah masjid or different State than the woman, his
application shall bear or be accompanied by a statement of the Registrar of his kariah masjid
or by the proper authority of the State, to the effect to ascertain the matters stated in the
application are true.
c) 16(3): The application of each party must be delivered to the Registrar at least 7 days before
the proposed marriage, but the Registrar may allow for a shorter period in any particular
case.
d) 16(4): The application of the parties shall be treated as a joint application.
2. Issue (issuance) of permission to marry (by the Registrar).
a) Section 17: Subject to section 18, the Registrar after being satisfied of the truth of the
matters stated in the application, the legality of the intended marriage and if the man is
already married (in the issue of polygamy), the permission required in section 23 has already
been granted, he shall issue to the applicants his permission to marry in the prescribed form
at any time after the application and upon payment of the prescribed fee.
3. Reference to an action by Syariah Judge.
a) Section 18(1): (a) If either of the parties to the intended marriage is below the age specified
in section 8 (minimum age for marriage), (b) if the woman is a janda to whom sec 14(3)
applies or (c) if the woman has no wali nasab according to Hukum Syarak, the Registrar
shall refer the application to the Syariah Judge having jurisdiction in the place where the
woman resides, instead of acting under Section 17.
b) 18(2): The Syariah Judge after being satisfied of the truth of the matters stated in the
application and the legality of the intended marriage and that the case is one that merits

lOMoARcPSD|5194439
(benefits) the giving of permission for the purposes of section 8, section 14(3), or his consent
to the marriage solemnized by wali raja for section 13(b), he shall issue the applicants his
permission to marry in the prescribed form at any time after reference of the application to
him and upon payment of prescribed fee.
4. Permission is necessary before solemnization.
a) Section 19: No marriage shall be solemnized unless permission has been granted by the
Registrar under section 17, by proper authority of the State, or by Syariah Judge under
section 18.
5. Place of marriage.
a) Section 20 (1): Marriage shall be solemnized in the kariah masjid in which the woman
resides. But the Registrar under Section 17 or Syariah Judge under Section 18 may give
permission for the marriage to be solemnized elsewhere (Federal Territory or any State).
b) 20 (2): A permission under sub (1) may be expressed in the permission to marry given under
sec 17 (by Registrar) or sec 18 (by Syariah Judge).
c) 20 (3): Notwithstanding sub (1), a marriage may be solemnized in a kariah masjid other than
that where the woman resides if (a) a permission for the marriage to be solemnized in that
kariah masjid has been given under sec 17 or 18 and the permission for the solemnization of
the marriage in other kariah masjid has been given under sub (1) [where the woman resides
in the FT] or (b) a permission to marry and a permission for the marriage to be solemnized in
other kariah masjid have been given by the proper authority of that State [where the woman
resides in a State]
Case: Remi Iskandar bin Sulaiman (minor)

The 16 year old male applicant wished to marry a female of 20 years. Although he was only 16 years
old, he had his own small business of selling burgers with an income of rm750- 1000 per month. He
was also religious and performed his daily prayers five times without fail. The Syariah COurt allowed
the application.
Norazlinawati bt Khairul Anuar (minor)

The 13 year old female applicant wished to marry her partner whom she had committed adultery with
and she had also consented to the marriage. The court referred to Surah An- Nur: 3, “Let no man guilty
of adultery or fornification marries but a woman of similar guilt” and allowed the application.
Rusmiyah bt Saidi (minor)

The 14 year old female applicant was already engaged for a year. During the period of engagement, the
fiancee always brought her to places to commit zina. To protect the family honour and to avoid
maksiat, the father decided that the daughter had to be married earlier than the fixed date. The court
allowed the application.

lOMoARcPSD|5194439
Hasnah bt Zainol v Majlis Agama Islam Kedah (unavailability of Wali)

Hasnah had applied to the court to be married off by a Wali Hakim. This was due to the unavailability
of Wali Nasab to marry her off, as the applicant was an illegitimate child. In this case, the mother of the
applicant, Sofiah was called to testify. She made a confession that the applicant was an illegitimate
child from her illicit relationship with Zainol. Only after the applicant was born did she marry Zainol.
Zainol who was also present when the application was heard also admitted to the same fact as testified
by Sofiah. As the court was satisfied with the application of the applicant and the testimony of the
witnesses, the court granted her the permission to be married of by a Wali Hakim.
Nur Farahanim bt Abdullah (wali)

Usage of a Wali Hakim in relation to a convert who previously professed the religion of Christianity.
Due to the unavailability of Wali for her marriage, the court had granted her permission to use a Wali
Hakim.
Salina bt Jumri (wali)

Application to use Wali Hakim because the father had disappeared from the time the applicant was in
the womb of her mother. Much effort had been made to find her missing father, but all to no avail.
Therefore, she had no wali to marry her off, thus she had to apply for her marriage by a Wali Hakim.
The application was granted by the court after being satisfied of all the reasons and testimony given by
her witnesses.

lOMoARcPSD|5194439
Registration:
a) Entry in Marriage Register.

1. Section 22 (1): The Registrar shall enter the prescribed particulars and the prescribed or
other ta’liq of the marriage in the Marriage Register immediately after the solemnization of a
marriage.
2. 22(2): The entry shall be attested to by the parties of the marriage, wali and 2 witnesses other
than the Registrar, present at the time the marriage is solemnized.
3. 22(3): The entry shall then be signed by the Registrar.
b) Subsisting valid marriages deemed to be registered under this Act and dissoluble only under this
Act.
1. Section 6(1): Nothing in this Act shall affect the validity of any Muslim marriage solemnized
under any law wheresoever prior to the appointed date (1984).
2. 6(2): Any marriage, if valid under the law under which it was solemnized, shall be deemed
to be registered under this Act wheresoever prior to the appointed date (1984).
c) Non- registrable marriages
1. Section 12 (1): A marriage in contravention of this Act shall not be registrable under this
Act.
2. 12 (2): Notwithstanding sub (1) and without prejudice to sec40(2), a marriage which has
been solemnized contrary to any provision of this Part but is otherwise valid according to
Hukum Syarak may be registered under this Act with an order from the court.
d) Registration.
1. Section 25: After the appointed date, any person ordinarily resident in the Federal Territories
and the marriage of every person who is living abroad is considered as a resident in the
Federal Territories shall be registered pursuant to the Act.
e) Marriage certificate and ta’liq certificate.
1. Section 26 (1): The Registrar shall issue marriage certificates in the prescribed form to both
parties to the marriage upon registering any marriage and upon payment to him teh
prescribed fees.
2. 26 (2): The Registrar shall issue a ta’liq certificate in the prescribed form to each of the
parties to the marriage upon payment of the prescribed fees.
3.

lOMoARcPSD|5194439
f) Legal effect of registration.

1. Section 34: Failure to register a marriage is an offence (under Section 35), but it is expressly
stated that nothing in the Act or the rules made under the Act render any marriage valid or
invalid which otherwise is invalid or valid merely by reason of its having been or not having
been registered.
Penalties Related to Solemnization & Registration of Marriages:
a) Omission to appear before Registrar within prescribed time.

1. Section 35: Any person who fails to appear before a Registrar as being required by Section
31, within the prescribed time commits an offence and shall be punished with a fine not
exceeding RM1000 or with imprisonment not exceeding 6 months or both.
b) Interference with marriage.
1. Section 37: Unless permitted under Hukum Syarak, any person who uses threat or force (a)
to compel a person to marry against his will, OR (b) to prevent a man who has attained the
age of 18 or a woman who has attained the age of 16 from solemnizing a valid marriage…
commits an offence and shall be punished with a fine not exceeding rm1k or with
imprisonment not exceeding 6 months or with both.
c) Unauthorized solemnization of marriage.
1. Section 39: Any unauthorized person who solemnizes or purports to solemnize any marriage,
commits an offence and shall be punished with a fine not exceeding rm1k or with
imprisonment not exceeding 6 months or both.
d) Offences relating to solemnization of marriage.
1. Section 40 (1): Any person who knowingly solemnizes or purports to solemnize, of officiates
at a marriage (a) without there being permission to marry as required by Section 19, OR (b)
absence of at least 2 witnesses other than the person solemnizing the marriage, …. commits
an offence and shall be punished with a fine not exceeding rm1k or with imprisonment not
exceeding 6 months or both.
2. 40 (2): Any person who marries, or purports to marry, or goes through a form of marriage
with any person contrary to any of the provisions of Part II… commits an offence and shall
be punished with a fine not exceeding rm1k or with imprisonment not exceeding 6 months or
both.
3.

lOMoARcPSD|5194439
PROHIBITED MARRIAGE
An- Nisa: 22- 24 - “Prohibited to you (for marriage) are your mothers, your daughters, your sisters,
your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your
(milk) mothers who nursed you, your sisters through nursing, your wives’ mothers and your
stepdaughters under your guardianship (born) or your wives unto whom you have gone in.”
“But if you have not gone in unto them, there is no sin upon you. And (also prohibited are) the wives of
your sons who are from your (own) loins, and that you take (in marriage) two sisters simultaneously,
except for what has already occurred (before Islam occurred). Indeed, Allah is ever Forgiving and
Merciful.”
IFLA (FT) Section 9(1): No man or woman shall marry on the ground of consanguinity….
9(2): “ Affinity
9(3): “ Fosterage
9(4): No man shall have more than one wife at any one time who are so related to each other by
consanguinity, affinity or fosterage that if either of them had been a male a marriage between them
would have been illegal in Hukum Syarak.

lOMoARcPSD|5194439
POLYGAMOUS MARRIAGES
An- Nisa 4:3 - “Marry those that please you of (other) women, two, three or four. But if you fear that
you will not be just, the (marry only) one.”
a) Reason for revelation ( Asbabul Nuzul) of An- Nisa: 3 - It was revealed after Uhud where Muslim
Community left with many widow and children.
b) The 1st part of ayat "marry those that please you of (other) women, two, three or four” does not
indicate it is wajib but it is only permissible because of Maslahah (public interest).
c) The 2nd part of ayat “but if you fear that you will not be just, the (marry only) one” means if you
fear before the act (polygamy) is done I.e if foresee that it will be unjust then marry only one.
Shafi’I scholars stressed that “just” as a main requirement.
Jurist say “just” is not in term of feelings but on nafkah, shelter, clothing and food.
An- Nisa: 129 - “And you will never be able to be equal (in feeling) between wives, even if you should
strive (to do so). So do not incline completely (towards one) and leave another hanging.”
Hadith (Ghaylan b Salamah): Before Islam had 10 wives. Prophet SAW advised him to keep 4 and
divorce others.
The Prophet SAW practise it for 2 reasons:

d) To strengthen dakwah
e) To protect widows of war
Conditions for Polygamy:
Jurists ruled that-
f) Only 4 wives are permitted

g) Must do equal justice to all of them i.e humanly possible: equitable treatment (nafkah) not
feelings as stated in An- Nisa: 129.
h) Prophet SAW himself: “My Lord, this is my distribution is in my control, but do not hold me
responsible for what is in your control where I have no control over it.”
1. For example, Prophet SAW once praised Khadijah in front of Aisyah where Aisyah felt
unhappy.”
a) Must exercise in good faith

lOMoARcPSD|5194439
Polygamy is the best solution for:
b) Wife suffers serious illness such as paralyzed.

c) It is medically confirmed that wife cant bear children
d) Wife is unsound mind
e) Wife is of old age and cant look after the house and children
f) Wife is of bad character and cannot be reformed and disobedient
g) During war: to help widow and children
IFLA (FT) Section 23: Polygamy

h) (1): Man, during the subsistence of a marriage shall get the permission of the Court in writing, to
contract another marriage with another woman.
i) (1A): Marriage contracted without the permission of the Court shall not be registered unless the
Court is satisfied that the marriage is valid according to Hukum Syarak and the court ordered the
marriage to be registered subject to section 123 (commits an offence and shall be punished with a
fine not exceeding rm1k or with imprisonment not exceeding 6 months or both).
j) (3): An application for permission shall be submitted to the court in prescribed manner and shall
be accompanied by an iqrar (declaration) stating the grounds on which the proposed marriage is
alleged to be (i) just and necessary, (ii) the present income of the applicant, (iii) particulars of his
commitments and his ascertainable financial obligations and liabilities, the number of his
dependents, including persons who would be his dependents as a result of the proposed marriage,
and (iv) whether the consent or views of the existing wife/wives on the proposed marriage have
been obtained.
k) (4) On receipt of the application, the court shall summon the applicant and his existing wife/wives
to be present at the hearing of the application, which shall be in camera and the court may grant
the permission applied for if satisfied that (conditions to be fulfilled):
a) the proposed marriage is just and necessary, having regard to such circumstances, which are
sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an
order for restitution of conjugal rights, or insanity on the part of the existing wife/wives,
b) the applicant has such means as to enable him to support all his wives and dependents,
including persons who would be his dependents as a result of the proposed marriage,
c) that the applicant would be able to accord equal treatment to all his wives as required by
Hukum Syarak and
d) the proposed marriage would not cause darar syarie to the existing wife/wives.
 (6): Any party (particularly wife) aggrieved by or dissatisfied with any decision of the court may
appeal against the decision.
 (7): Any person who contracts another marriage in contravention to sub (1) shall pay deferred mas
kahwin and the pemberian due to the existing wife/wives. If not paid, then it shall be recoverable
as a debt.

lOMoARcPSD|5194439
 (9): Every court that grants the permission or orders a marriage to be registered under this section
shall have the power on the application by ant party to the marriage (a) to require a person to pay
maintenance to his existing wife/wives OR (b) to order division between the parties of the
marriage of any assets acquired by them during the marriage by their joint efforts or the sale of
any such assets and the division of the proceeds of the sale.
Cases: Aishah bt Rauf v Wan Mohd Yusof bin Wan Othman

The husband had applied to the Syaraih Court for permission to contract another marriage. The learned
judge gave the permission asked for . Th trial judge held that the respondent had the means to support
more than one wife. He also stated he feared that they would commit zina (adultery) if they were not
allowed to marry. The wife appealed against the decision of the Syariah Court to the Appeal Board
Committee. The Board allowed the appeal. The Board stated that the burden of proof is on the husband
to show that he has satisfied all the conditions stipulated in the law. The leaned judge only gave serious
consideration to the question of financial means under condition (b). The judge ignored conditions (a),
(c) and (d) by merely accepting the husband’s bare statement without proof and authority which are
required under the hukum syarak. The Board stressed that all the 4 conditions were equally important
and should be considered separately. The Board after deliberation held that the husband had failed to
satisfy condition (a) and this failure alone would be sufficient ground to reject his application. It also
held that the 4 conditions imposed are not in conflict with the Quran as they are aimed at securing
justice to wives and justice is mandatory in Quran. The object of Section 23(4) is not to abolish
polygamous marriage, but merely provides constructive requirements in the hope that justice in the
Muslim family may be better achieved.
Rajamah bt Mohamed v Abdul Wahab bin Long

The Selangor Syariah Appeal Board Committee allowed the wife’s appeal. The court said that the
burden of proving is on the husband to show that he is capable of supporting more than one wife. In
this case, the court after looking at the husband’s financial means decided that he would not be able to
support two wives financially.
Re Ruzaini bin Hassan

Applicant applied for polygamy under Section 23 IFL (NS) Enactment. First wife consented to the
proposed marriage. The husband’s monthly salary is rm1291.90. The wife’s is rm700. The balance
after deduction of the commitment for husband is rm291 and for the wife, rm100. The application was
rejected. The applicant has insufficient means to support more than one wife.
Shariff Jamaludin v Kuning Jasman

An application for polygamy under sec 23 IFL (NS) Enactment. The 1 st wife refused to give consent for
polygamy. She would request for divorce if the husband wants to proceed with polygamy. The husband
dissented to divorce her because he still loves her. The husband was a FELDA settler with monthly
income of rm2k. In 1995, husband’s land was acquired by developer Lembaga Urusan Tabung Haji

lOMoARcPSD|5194439
with the price of more than rm1.3 mil. The wife has been sick for 17 years ago and the husband
claimed that they did not have matrimonial relationship since then. The wife applied to the court taht if
husband proceed with the proposed marriage, she is to be paid maintenance of rm500, maintenance of
her children for rm1k and her husband’s account to be divided equally as harta sepencarian. The court
allowed the husband’s application for polygamy after taking into consideration that the couple have no
marital relationship since 17 years ago because the wife has been sick. The husband was ordered to pay
rm1.5k for monthly maintenance of wife and children. The application relating to harta sepencarian is
to be filed in different proceeding.
Mohd Alwi bin Sari v Faizah Mohd Ghazali

The wife applied for fasakh on the ground that the husband had married again without her knowledge
and he subsequently failed to treat his two families fairly. The husband claimed that he was a single
man when he married the second wife. As a result, the 1 st wife suffered depression and tension. The
husband however denied all the allegations of the wife. The Syariah Court after hearing the evidences
from both parties granted fasakh to the 1st wife on the ground the husband did not treat the wife
(applicant) equitably in accordance with the requirements of the hukum syara’.
Joan Mary Sulaiman v Sulaiman bin Haji Musa

The applicant (1st wife) applied for fasakh under sec 52(1) of the IFLA on the ground that the husband
had neglected in providing maintenance for more than one year. According to the evidence, the
husband did not have valid reasons for not fulfilling his duties in providing maintenance and in giving
fair and just treatment to his 1st wife according to Hukum Syara’. The court had granted fasakh on the
ground that the neglected his responsibilities and had not been providing adequate maintenance to his
1st wife and also failed to observe the night turns between his wives as required by Islamic Law. All
these had caused the 1st wife to suffer difficulties and depression and consequently it was difficult for
her to continue to live with the husband.
Muhammad Sufi bin Abdullah v Ketua Pendakwa Syarie

The Syariah Lower Court held that the appellant had committed an offence by contracting his second
marriage without the permission of the court. The appellant pleaded guilty to the offence and he was
fined rm999 or in default 5 months jail. He was also sentenced to jail for 10 days. The appellant
appealed against the decision of the trial court to the Syariah High Court. At the Syariah High Court,
the appeal was allowed and the sentence for 10 days prison was set aside.

lOMoARcPSD|5194439
DISSOLUTION OF MARRIAGE UNDER ISLAMIC FAMILY LAW
1. Talaq: Divorce by husband either 1,2 or 3 talaq.

2. Khulu: Tebus talaq or divorce by redemption.
 The wife demand divorce from the husband, and the husband can demand an
amount of money from the wife as redemption for the divorce.
3. Ta’ aliq: Conditional divorce
4. Fasakh: Divorce by order of court.
1. The wife must produce evidence before the court proofs that the husband
were abusive, cheat, irresponsible etc. during the marriage
4. Lian: Husband accused the wife for adultery.
5. Presumption of death
6. Change of religion
a) Divorce by Talaq
 Talaq: freeing or undoing the knot
 Jurists: Talaq signifies the dissolution of marriage, or the annulment of its legality
by the pronouncement of certain words.
 Al- Baqarah 2: 229 - “Talaq may be pronounced (twice), the keep (them) in good
fellowship or let them go with kindness”.
 Al- Talaq 65: 1 - O! Prophet, when you divorce women, divorce them for their
prescribed period and calculate the number of the days prescribed”.
 Hadith: “Lawful thing which is most disliked by Allah is Talaq”.
Hukum Talaq:
 Wajib: If dispute cannot be settled even with Hakam (arbitration, conciliation,

sulh mediation) interference.
 Sunat: Husband cannot maintain wife and wife is not religious.
 Haram: During menstrual period or during the clean period but after having
sexual intercourse with her (talaq will still be valid).
 Makruh: Without lawful reason.
 Harus: Husband does not love his wife and he cannot provide maintenance.

lOMoARcPSD|5194439
Types of talaq:
1. Talaq Sunni:
a) Talaq Ahsan - the most approved form of talaq.
b) Talaq Hasan - The less approved form of talaq.
 Talaq that is according to sunnah and in line with hukum syarak.

 Refers to single pronouncement of talaq (talaq 1) in a period of purity
followed by 1) abstinence from sexual intercourse during that period of
purity and 2) iddah period.
 Refers to 3 successive pronouncement of talaq during the 3 consecutive
periods of purity. Each of these pronouncement took place when no
intercourse has taken place at that particular period of purity.
2. Talaq Bid’I
a) Talaq Raj’I
b) Talaq Ba’in
1. Most disapprove form of talaq.

2. Legally effective but it is sinful.
3. Pronouncement:
1. During purity period but after having sexual intercourse with the wife.
2. During wife menstruation
3. During pregnancy
4. Pronounce 3 talaq in single period wither by single sentence or repeat 3
times.

lOMoARcPSD|5194439
I. Talaq Raj’I (Revocable Talaq)
 Divorce by one/two talaq not followed by completion of iddah.

 Husband has the right to divorce the divorce and take back his wife during iddah
period and with no need to remarry.
 Al- Baqarah 2:229 - “Talaq may be pronounced (twice), the keep (them) in good
fellowship or let them go with kindness”.
 Section 51(1) IFLA - The husband is allowed to revoke the divorce as long as the
wife is still in her iddah period.
II. Talaq Ba’in (Irrevocable Talaq)
 Literally means separation.

 Separation of marriage between parties and there is no right to resume conjugal
relations except by remarry (new marriage).
 2 Types - Talaq Bain Sughra & Talaq Bain Kubra
a) Talaq Bain Sughra:
 Must take new aqad with new mahr
 Talaq Raj’I if wants to revoke after iddah period

 Talaq Khulu
 Divorce before consummation
 Fasakh

lOMoARcPSD|5194439
b) Talaq Bain Kubra:
 The husband cannot reenter into marriage contract with his divorced wife (even
with new mahr & aqad), unless the woman has been lawfully married to another
person and has been divorced after consummation.
 Final and absolute talaq

 Husband at a time or at different time pronounce 3 talaq by one or more words to
his wife.
 Refers to divorce by 3 talaqs.
 Al- Baqarah: 230 - So if he divorces her (irrevocably), she shall not be lawful to
him afterwards until she marries another husband. Then if he (new husband)
divorces her there is no blame on them both if they return to each other (by
marriage).

lOMoARcPSD|5194439
Rukun Talaq:
 Husband
 Wife
 Intention
 Expression
1. Husband
a) Legal husband from a legal marriage
b) Sound mind
 According to Hadith: Three person are immune from liability;
sleeping person till awake, child till baligh, lunatic till regain sense.
c) Baligh
d) Voluntary
 Husband acted on free will and not under duress
2. Wife
a) Lawful and legal wife
b) No need for wife to be of sound mind or baligh, the talaq by the husband will
still be effective.
3. Intention
a) Lafaz talaq Soreh(explicit)
i. The talaq is effective even without intention on part of the husband
ii. Hadith: Three things that will be considered seriously marriage, divorce,
rujuk.
b) Lafaz talaq by Kinayah (implicit)

i. The court will look into the intention of the husband

lOMoARcPSD|5194439
4. Expression (Sighah)
a) Soreh (explicit)
i. According to Shafi’e, Hanbali, Zahari - usage of the words talaq (al-
baqarah 2: 229), firaq (an- Nisa 4: 130), sarah (al- Ahzab 33: 28)
ii. Fuqaha agreed that the use of lafaz “itlak” (lepaskan) is Kinayah.
iii. If the talaq is Soreh, whether or not the husband has the intention, the
talaq is effective.
b) Kinayah (implicit)
i. The court will look into the intention of the husband
c) Talaq in writing
i. Jumhur - Writing must be clear, can be read and permanent. Talaq will
not be effective if the writing is not clear or ink is not permanent even
accompanied with intention. Writing is considered as lafaz kinayah.
ii. Hanafi - Writing must be clear . If the writing is specifically for the wife,
talaq is effective even without intention. If the writing is not directly to
the wife, talaq is not effective without intention.
iii. Shafie, Maliki, Hanbali - Writing must be clear and accompanied with
intention.
Talaq in writing is not effective without intention:

Roshayati v Mohd Ali
Wife instructed her husband to sign divorce letter prepared by one Ustaz Hassan on
her request. The content of the letter stated: “I, Mohd Ali bin Haji Mohd Nor hereby
agree to divorce Roshayati binti Tambi with 1 talaq.” The husband signed the letter
after the wife forced him by saying that he would be in trouble I he didn’t sign. The
court held that the talaq is not effective because the husband did not pronounce it and
has no intention to divorce his wife. Further, the letter was prepared by the 3rd party.
Zaiton binti Hamim v Abd Razak bin Kassim

The husband wrote a letter to divorce his wife with intention. “Saya Abd Razak bin
Kassim (No K/P) telah menceraikan kamu, Zaiton bin Hamim (no K/P) pada hari ini
di hadapan saksi- saksi seperti berikut di bawah dengan satu talaq”. The court held
that the talaq is effective.

lOMoARcPSD|5194439
Issue on talaq by SMS (Applies the same as talaq by writing)
Nor Aniza bt Idris v Mohd Fauzi bin Ahmad

Defendant sent an SMS through his mobile phone to P’s mobile phone declaring as
follows: “Aku biaqwal tapi tak berzina dengan laki orang). P sent an SMS inquiring
D’s intention and he replied “macam adik kau Nor dengan Rizal, Uda dengan K Zie,
kau dengan aku bercerai berai”. The issue is whether D had the intention of affecting
talaq Kinayah at the the time writing the 2 SMS. The court dismissed the P’s claim to
register the divorce as D denied that he intended a divorce when writing the above 2
SMS.

lOMoARcPSD|5194439
Effect of pronouncement of 3 talaq (in one sitting either by single sentence or repeat 3
times)
1. Imam Syafie, Khalifah Umar, Imam Nawawi: 3 pronouncements in one sitting is

considered as 3 talaq.
2. Abu Hanifah, A. Yusuf, Said Juba’I, Abu Sha’sha, Amru Dihar: They considered 3
pronouncement as only one talaq base on:
a) Al- Baqarah 2: 229
b) Hadith from Ibn Taus, from his father Ibn Abbas said that 3 pronouncements
were considered as one talaq during the Prophet SAW, Abu Bakar and 1 st 2
years of Umar.
c) Hadith- Rukana Ibn Yazid pronounced 3 talaq in one sitting and then he
consulted Prophet SAW. He asked him how did you pronounce the divorce.
Rukana answered that he pronounced 3 divorce (3 pronouncements). The
Prophet asked whether he pronounced it in one sitting. As he answered yes,
Prophet said they constitute 1 talaq.
Cases in Malaysia:
Mohd Zuhdi b Mohd Nawawi v Nor Sharifah bt Sharif

There was a dispute between husband and wife through phone. The husband asked the
wife, “how many talaq do you want”. The wife said, “Up to you”. The husband said
“take 3 talaq”. The court held that 3 talaq is effective because the husband was aware
and understand.
Radzi bin Abdullah lwn Sharifa Bibi Bt Nawabbudin

P said “I divorce you, I divorce you, I divorce you” on 5/1/2004. P applied to register
their divorce under Sec 55A IFLA. D denied the said pronouncement alleging that she
was not at home during that time. P has failed to prove his pronouncement of talaq. D
has taken an oath. Talaq 3 was not effective on 5/1/2004, but talaq 3 was effective on
28/10/2004 when P made statement on oath by reading his iqrar before commissioner
of oath. Court allowed the husband to register the divorce pronounced outside the
court and without consent from the court.

lOMoARcPSD|5194439
Mohd Hashim bin Mohd Noor v Hamsati bt Samori (lafaz soreh need no
intention)
P said “I divorce Hamsati Binti Samori with 3 talaq” at his house. There was no
witness to the said incident. However, P claimed that he pronounced talaq at the
material time under the influence of black magic (possessed by spirits) and thus was
not in his own senses. The court held that the lafaz talaq is soreh and precise as it
contained the words divorce which indicated the intention of the P to divorce the D.
Talaq 3 is effective. The allegation of black magic is weak or not properly supported
with evidence. It had not fulfilled the requirement of Syarak on the concept of duress
(he would be place his life in danger or would subject to bodily harm).
Mohamad v Roslina (not intention of husband to divorce wife)

3 talaq in one sitting, “ aku rela ceraikan dikau (repeated 3 times). The trial judge held
that 3 talaq is effective. However, on appeal, talaq was held not effective at all
because lafaz is kinayah and the word “rela” used because the wife is the one who
requested the husband to divorce her.
Mansor bin Sulaiman v Maharani Soekimi

P & D had fought as P had arrived home late and D reacted by throwing a Blackberry
to the wall causing it to break. Upset by D’s action, P spontaneously pronounced ‘aku
cerai hang dengan talaq tiga’. P claimed that he had not meant talaq and did not
understand the consequences of 3rd talaq. He also informed that the pronouncement
was not coerced by anyone. Held: D was divorced with 3 talaq in a single
pronouncement which amount to talaq bain kubra. The pronouncement employed was
one of soreh. The requirements for talaq were fulfilled by both parties.
Shari Ezani bin Ab Rahim v Nurul Huda bt Osman

Talaq uttered after a quarrel. First divorce by SMS “kalau macam ini lebih baik kita
berpisah”. 10 minutes later H spoke to the W and uttered the words “saya ceraikan
awak dengan talaq tiga sekaligus”. Trial Judge held that 3 talaq is effective. H
appealed to High Court. After analyzing the 2 utterances, the court was of the opinion
that the 1st ambiguous utterance was accompanied with intention to divorce and
therefore constitute one talaq. Thereafter, H uttered a 2nd talaq while the parties were

lOMoARcPSD|5194439
still in the state of a revocable divorce (iddah) constitutes two talaqs which is
revocable as both the talaq were uttered while W was still in iddah.
Mahad Ahmed Mohamed v Natasha bt Zolkeflee

The plaintiff and the defendant were married in Selangor in 2011 with the defendant’s
father acting as wali and witnessed by two witnesses. In 2015, the defendant said, “It's
over between us. Consider this a full talak”. A complete talak (‘the pronouncement’).
The plaintiff filed for an affirmation of divorce outside the court. The issues: (i)
whether the pronouncement fulfilled the criteria and conditions which validate talaq;
and (ii) the number of talak pronounced based on the said pronouncement if affirmed.
Court held that the talaq pronouncement is said to be valid. The pronouncement was a
kinayah which meant to pronounce talak. Based on the plaintiff's own admission, ‘full
talak’ and ‘complete talak’ meant the third talak. Hence, the defendant was divorced
with triple talak.

lOMoARcPSD|5194439
Talaq Procedure (only applicable if the husband has not yet pronounce talaq outside
court):
Section 45 - The court shall have the authority to make an order of divorce or an order
pertaining to a divorce or to permit a husband to pronounce a talaq if:
a) the marriage has been registered or deemed to be registered under this Act, or
b) the marriage was contracted according to Hukum Syarak, and
c) either of the parties to marriage at the time when the application is presented is the
resident of the FT.
Procedures for mutual divorce :
1. Section 47(1): Husband/ wife who wants divorce shall present an application for
divorce to the court in the prescribed form, accompanied by an iqrar containing
(a) - (g).
2. 47(2): The court shall cause a summon to be served on the other party together
with a copy of the application & the iqrar made by applicant. The summon shall
direct the other party to appear before the court to enable the court to inquire
whether or not the other party consents to the divorce.
3. 47(3): If the other party consents to the divorce & the court is satisfied that the
marriage is irretrievably broken down, the court shall advise the husband to
pronounce one talaq before the court.
4. The court shall record the pronouncement of one talaq by the husband and
register it by sending a certified copy of the record to appropriate Registrar and
the Chief Registrar .

lOMoARcPSD|5194439
Procedures for non- mutual divorce:
1. 47(5): If the other party to does not consent or it appears to the court that there is
reasonable possibility of reconciliation, the court shall appoint a conciliatory
committee consisting of a Religious Officer as Chairman and two other persons,
one form husband’s side and one from wife’s side, and refer the case to the
committee.
2. 47(9): The effect of reconciliation shall be within a period of 6 months from the
date of appointment of committee or such further period as may be allowed by
the court.
3. 47(10): The committee shall require parties to attend and give them opportunity
of being heard.
4. 47(11): If there is no hope in reconciliation, the court shall issue a certificate of
non-reconciliation, including recommendations for maintenance, custody of the
minor children in the marriage, division of property & other matters related to
marriage.
5. 47(14): The court shall advise the husband to pronounce one talaq. If the court is
unable to procure the presence of the husband or where the husband refuses to
pronounce talaq, the court shall refer the case to Hakam according to Sec 48.
6. 47(17): If the pronouncement of talaq is made when the wife is pregnant, the
talaq/order shall not be effective to dissolve the marriage until pregnancy ends.
Tunku Ainah bt Tunku Maamor v Mohd Adli b Yahya

Based on the respondent’s (H) claim that there had been a pronouncement of one talaq
at their house in PJ, the court held in favor of the respondent and directed the
appellant to register the talaq. Appellant was however not present at the said hearing
as she was ill. Appellant appealed against the said decision on the ground that the trial
court had erred in law when deciding that there had been a divorce based on his
admission and not called the appellant or her representative before making its
decision. The Syariah High Court set aside the decision of the trial judge, the case was
remitted for retried before another judge.

lOMoARcPSD|5194439
Talaq Outside Court:
 Man divorces his wife by the the pronouncement of talaq in any form outside the
court without the court’s permission.
 The talaq is valid but it is an offence under Sec 124.
 Sec 124 - Shall be punished with a fine not exceeding rm1k or with imprisonment
not exceeding 6 months or both.
 Sec 125(1) - Failure to report (report the divorce): Whoever who fails to report
when he is under the duty to report, commits an offence and shall be punished
with a fine not exceeding rm1k or 6 months imprisonment or both.
Pendakwa Mahkamah Syariah, Melaka v Ismail Jaafar

The husband/ accused was charge with the offence of divorcing his wife without the
permission of the court, an offence under section 105 Islamic Family Law Enactment
(Melaka) 1983. The accused admitted divorcing his wife and was found guilty and
sentenced to a fine of RM80 or in default, 3 weeks imprisonment. He was ordered to
register the divorce in accordance with section 43 of the enactment.

lOMoARcPSD|5194439
Dissolution of marriage by KHULU’ (Tebus talaq)
Def: To pull out/ to remove (literally)

lOMoARcPSD|5194439
ANCILLARY CLAIMS
Mas Kahwin (Mahr) Pemberian
Definition: Free gift from husband to wife at the time of marriage. Can be in the form
of money or any valuable things. It becomes the property of the wife.
An-Nisa 4: 4 - And give the women their dowries as a free gift, but if they themselves
be pleased to give up to you a portion of it, then eat with enjoyment and with
wholesome result.
An- Nisa 4: 24 -

lOMoARcPSD|5194439

Family Law 1 Islamic This Is A Comprehensive Notes As The Information Were Gathered From Lecture

Uploaded by

Copyright:

Available Formats

You might also like

Family Law 1 Islamic This Is A Comprehensive Notes As The Information Were Gathered From Lecture

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Family Law 1 Islamic This Is A Comprehensive Notes As The Information Were Gathered From Lecture

Uploaded by

Copyright:

Available Formats

lOMoARcPSD|5194439

Family LAW 1 ( Islamic) - This is a comprehensive notes as

StuDocu is not sponsored or endorsed by any college or university

 Hence, betrothal is recommendable in Islam and it is not a religious obligation. It is based on

Types of woman that cannot be betrothed/ proposed:

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Prohibitions during the period of betrothal:

 Private meetings without the presence of mahram

b) Man can see the woman (vice versa)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Breach of betrothal agreement:

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

The law and practice in Malaysia:

Aishah v Jamaluddin (1978)

Hussin v Moh (1972)

Salbiah bt Othman v Haji Abdul Ghani (2006)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Maria Tunku Sabri (2012)

Mohd Azla v Mokhtar & Anor

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

MARRIAGE IN ISLAM (NIKAH)

Contemporary Jurist - Marriage includes ibadah/ muamalat

Marriage is a solemn covenant comprises muamalat/ibadah. It is a divine relationship. Originally,

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Pillars (Rukun) and Conditions For Marriage:

Conditions for Prospective Husband:

Conditions for Prospective Wife:

 Muslimah or Kitabiyyah (will be explained later)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

3. Nor Radhiah bt Ramli v Aziz bin Othman

a) Not within berihram haji or umrah.

Effect of marriage due to consanguinity, affinity and fosterage:

 The marriage is void and must talaq immediately.

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Marriage with Kitabiyyah:

Minimum age for marriage:

d) General rule: No age limit of marriage in hukum syara’.

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Wali & Requirements of Wali:

b) Shafi’I: Wali is pillar (rukun) of nikah.

Conditions required for Wali:

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

List of Priority of a Wali:

Reasons for transfer of Wali Aqrab to Wali Ab’ad:

Reasons for transfer from Wali Khassah to Wali ‘Ammah:

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Hussin v Sa’yah & Anor (No consent from Wali)

Azizah bt Mat v Mat Bin Salleh (Refusal to give consent)

Ismail v Aris Fadhilah (Priority of Wali)

Re Wan Abdul Aziz bin Embong

Downloaded by Syafiqah Athirah (athirahsyafiqah75@gmail.com)

Hashim v Fatimah (Distance more than 2 marhalah)

Saad bin Syafie v Sarimah Bt Saad (distance)

Haji Mohamed v Bahrunnasran dan Mazliani bt Mohamed