Conditions For Marriage

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CONDITIONS

Age of Parties

Allah says in an-Nisa verse 6 which means: “make trial of orphans until they reach the age of marriage; if then ye find sound judgment in them, release their property to them; but consume it not wastefully nor in haste”. The Muslim jurists agreed that the age of marriage mentioned here is age of puberty. However the jurists are differed in regard to the age of puberty. On the other some jurists say there is no minimum age of marriage. They support their contention based on the hadith that the Prophet married Aishah when she was 6 years old and she only moved to his house when she was 9 years old (Narrated by al-Bukhari and Muslim).

Section 8 of the Islamic Family Law (FT) Act provides that “no marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances”. Thus a minimum age of marriage for male is 18 while for female is 16. However a minor may ask written permission of the Syariah Judge to marry. The permission may be granted in certain circumstances and it depends on the judge discretion.

Mahar (Mas Kahwin) and Pemberian

Principle

Mahar is derived from Arabic term. Mahar in Islamic Law refers to the gift that must be given by the husband to the wife at the time of wedding. The obligatory marriage payment due under the Muslim law to the wife at the time of the marriage is solemnised, whether it is paid in cash or in kind, whether payable as a debt or without security, whether immediately paid or indebted.

Section 2 of IFLTE 2017 defines “mas kahwin” means the obligatory marriage payment due under Hukum Syarak by the husband to the wife at the time the marriage is solemnized, whether in the form of money actually paid or acknowledged as a debt with or without security, or in the form of something that, according to Hukum Syarak, is capable of being valued in terms of money.

Authority

Al-Quran

An-Nisa’ verse 4 which means: “And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, Take it and enjoy it with right good cheer”.

An-Nisa’ verse 24 which means: “And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. So for whatever you enjoy [of marriage] from them, give them their due compensation as an obligation. And there is no blame upon you for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise.”

Al-Baqarah verse 236 which means: “There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.”

Al-Ahzab verse 50 which means: “O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives] and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess, [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful”.

Hadith

It was reported by Salma when he asked Aishah about the mahar given by the Prophet to her and she replied that the Prophet gave her 500 dinar.

It was reported that Ali married Fatimah and he intended to consumate the marriage when the Prophet SAW did not allow him to do so until he had given something as a mahar. Ali said he had nothing to give her. The Prophet SAW said: “give her your coat”. So Ali gave her his coat and cohabited with her.

It was reported that Salh bin Saas that a woman came to the Prophet and said: “o Prophet! I have offered myself to you”. When she stood up for a long time, a man got up and said: “marry her to me if you have no need of her”. The Prophet asked him: “you have anything to give her as mahar?” he replied: “I have nothing but this garment of mine”. The Prophet then said: “if you give your garment, then you will not have any garment with you, so look for anything else”. He replied: “I don’t find anything?” and the Prophet said: “look for something, eventhough it would be an iron ring”. The man could not find anything. The Prophet asked: “do you know anything from Quran by hear?” the man replied: “yes, I know such surah”. And he read it. The Prophet then said: I know given her in marriage for the part of the Quran which you know by heart”.

Scope and rate of mahar

However, the dowry is not included among the essential ‘pillars’ of marriage or prerequisites for the validity of a marriage. If the couple agrees to marry without determining the amount of the dowry, the marriage is still valid but the husband is required to pay a commensurate dowry (mahar misil) which entitles the wife to a dowry that befits her social status. This is based on a story that happened in the days of the Rasulullah (SAW) in which a woman was married with no mention of a dowry. Not long after, the husband died before the marriage was consummated so the Rasulullah (SAW) gave out an edict for the woman to receive a commensurate dowry (mahar misil).

The giving of dowry to the wife is a legal obligation. According to Abu Hanifah, the wife is entitled to a dowry as soon as the marriage contract (akad nikah) is valid. Meanwhile, the Syafi’e said that the wife is entitled to the dowry with the validity of the marriage contract (akad nikah) and also the consummation of the marriage. If the marriage is flawed (fasid), the husband is not obliged to give the dowry unless the marriage has been consummated.

Islam does not set rates and maximum or minimum limits for the dowry. It depends on the circumstances (uruf) of the time, place and society. Nevertheless, Islam recommends moderation and not setting a rate that is too high or too low. Rasulullah (SAW) has encouraged us to simplify the giving of the dowry: “The best woman is the one whose mahar is the easiest to pay. “ (Reported by Ahmad and al-Hakim) At the same time, the husband is allowed to give to the wife a dowry of high value. This is based on Surah al-Nisa verse 20 which means: “…you have given one of them a great amount (in gifts)”.

Types of mahar

  1. Mahar Musamma: The dowry in which the type and value are cleraly stated and agreed upon during the akad nikah. It should be paid by the husband in the event of one of the followings: (a) The consummation of the marriage; or (b) in the event of the death of one of them, whether husband or wife.
  1. Mahar Misli: The dowry in which the type and value are not stated or agreed upon during the solemnisation ceremony (akad nikah). If this situation occurs, the dowry that should be given is one that is to the value of a dowry befitting the wife’s social status, such as that of her sisters of the same parents or sisters of the same father or her aunts. If she does not have any of the aforementioned female relatives, the dowry that should be given is one that is to the value of a dowry befitting one of the wife’s standing in society. Otherwise, it is up to the husband, based on local customs and traditions. In addition, there are other issues that need to be taken into account in determining this type of dowry, that is from her appearance, her wealth, the local conditions, her religion, her piousness (taqwa), her knowledge, her intelligence, her honour and her status, whether single or divorced/widowed, and other factors that can be assessed. This is because the different characteristics warrant different dowry rates.

The wife is only entitled to only half of the dowry if she is divorced before the marriage is consummated. Allah says: “And if you divorce them before you have touched them…then give half of what you specified, unless they forgo the right…” (2:237). Hanifah says that if the type and value of the dowry have been stated during the akad nikah, the husband is obliged only half. If the type & value have not been stated then the husband is to give mahar misil. While Syafei and Malik in view that if the wife divorced before the marriage is consummated the husband is obliged to pay half dowry whether or not the type & value has been stated during akad nikah. All jurists agreed that the wife is not entitled to the dowry if the divorce is through annulment by the request of the wife (fasakh) and the marriage has not been consummated.

Application

Section 20 of IFLTE 2017 provides that the mas kahwin shall ordinarily be paid by the man or his representative to the woman or her representative in the presence of the person solemnizing the marriage and at least two other witnesses.

The Registrar shall, in respect of every marriage to be registered by him, ascertain and record—

  1. the value and other particulars of the mas kahwin;
  2. the value and other particulars of any pemberian;
  3. the value and other particulars of any part of the mas kahwin or pemberian or both that was promised but not paid at the time of the solemnization of the marriage, and the promised date of payment; and
  4. particulars of any security given for the payment of any mas kahwin or pemberian

Cases

In the case of Janat v Sheikh Kuda Buksh [1911]; the order of the Kadhi for the payment of mas kahwin was confirmed on appeal. The Appellate Court held: the husband must pay the mas kahwin in form of money. He can only substitute articles for money when the wife consents. If articles are given, they cannot be regarded as part of the mas kahwin in the absence of proof of such consent by the wife.

In the case of Shaari b. Mat v Teh bt Hashim [1983]; the wife deserted the husband. The husband applied to the court an order that the wife resume cohabitation with her. The wife replied that she would only return to her husband if he paid the mas kahwin of RM300 and the arrears of maintenance or the past three months. The court orders the husband to pay the mas kahwin of RM 300 to the wife.

Salma v Mat Akhir[1985]; the divorced wife claimed the payment of the mas kahwin which still owed. The husband claimed that the wife had remitted the payment of the mas kahwin. The wife denied this and called two witnesses but only one accepts. She was asked to take the oath and she took an oath to support her allegation. The judgment was given in favour of the wife and the husband was ordered to pay the sum of RM 600 for the mas kahwin.

Siti Zamrah v Maliki [1988]; the divorce wife claimed the payment of mahar and pemberian. The husband defended himself by saying that the wife had already agreed to give all the property to him to facilitate the divorce. The husband only called one witness and the court asked the plaintiff (wife) to deny the allegation. The court referred to the provisions in the Enactment and surah an-Nisa’: 19-20 on the right of the wife to mas kahwin. After the plaintiff had taken oath to deny the agreement alleged by the defendant, the court gave judgment in her favour and ordered the husband to pay RM770 to the plaintiff.

Kafaah (Equality in Marriage)

Principle

The word kafaah or kufu is defined as equal or compatible. It is meant that two people are called kufu’ of each other who are Muslim, have the same lineages or nasab, equal in financial status/wealt, profession and character. Wahbah al-Zuhaili (2001) said that the equality of the husband and wife to prevent humiliation on certain matter namely religion, descendent, independence, profession (Maliki’s opinion) and property (Hanafi and Hanbali’s opinion).

The importance of kafaah in the Muslim marriage because marriage is a long union, therefore, it is better if the parties are equal. It is to ensure a marriage is embellished with virtues of compatibility and suitability between the parties and consequently to avoid problems in the marriage (Mimi Kamariah, 1999).

Conditions

The conditions of kafaah are:-

  1. Applied to man only; that is man must be equal in status to the woman.
  2. The criteria of kafaah are that: religion, nasab, freedom, wealth, profession and integrity. The kafaah in religion referring to the understanding and observation of Islamic teaching, a fasiq cannot be married with a pious one. While Hanafi, Syafei and Hanbaali agreed that the equality in profession is one aspect that contributes to existence of kafaah in husband and wife. Hanafi and Hanbali’s school consider financial status or wealth is one aspect that should be there. The wealth is defined as the ability of the husband to pay mahar able to provide maintenance for the wife and child. However some jurist like al-Thawarity, Hassan al-Basry abd Ibn Hazam did not consider wealth as pre condition in marriage.

Authority

Al-Hujurat: 13

O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted”.

Kafaah in religion based on surah al-Sajdah verse 18 which means: “Is the people who have faith are the same with people who are sin (fasiq), no they are not the same”, and al-Nur verse 3 which means: “a man who commit adultery can’t marry except with a woman who also commit adultery”. The hadith say: “Marry the woman for 4 things, for wealth, inheritance, beauty and religion. Choose a woman for her religion and will get prosper” (Reported by Bukhari and Muslim).

Kafaah in education based on al-Mujadalah verse 11 which means: “Allah uphold the status of people who have faith and people who are awarded by knowledge with few ranks”.

Kafaah in profession based on sura al-Nahl verse 71 which means: “and Allah preferred most of you from another sustenance”.

Effect

The effect of kufu is that when a girl is forced to marry a man of inferior from her by wali mujbir, she may ask for the marriage to be annulled; similarly a father may ask for annulments of the marriage if the man is not of same status. This is based on the hadith: “no right to marry a daughter except with the wali, and no right to marry a woman but with a man fit with equality (kufu) to her” and the hadith: “get married with a people who are equal” (Muslim).

Cases

In the case of Syed Abdullah Shatiri v Sharifah Salmah [1959]; the father acting as wali mujbir performed the marriage of his daughter to Syed Idruss without her consent. Meanwhile she has been living with her Malay boyfriend and his family. The father applied to the Chief Kadhi to register the marriage. Her daughter refused to accept his father choice of husband, and brought the case to Syariah Court. The court declared the marriage was invalid. The father later appealed to the Appeal Board of the Syariah Court in Singapore. The Board held that the marriage was valid as expounded by the authorities of the Syafi’e school. A father or grandfather may marry a virgin without her consent provided that among other things the husband is equal status with the daughter. In this case, the daughter opposed to the marriage, a fasakh divorce was arranged and registered.

In Re Husseina Banu[1963] 5 Mal 392; a 14 year old ran away from home and married to Abdul Rahman (AB) in Legging. Her father brought an action in Syariah Courtto annul the marriage on the ground that AR was not kufu to his daughter. The Court agreed that man was unequal to the girl and the father was entitled to apply for annul the marriage. Thus the court pronounced the annulment of the marriage based on inequality between husband and wife.