Female

FEMALE (THE PROSPECTIVE WIFE)

Conditions of Wife

  1. Muslim: 
  • Al-Baqarah (221) which means: “And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you…” 
  • Al-Maidah (5) which means: “… And [lawful in marriage are] chaste women from among the believers and chaste women from among those who were given the Scripture before you, when you have given them their due compensation…”
  • Section 10(2) states that no woman shall marry a non-Muslim.
  1. A specific woman
  1. Not a mahram to the prospective husband
  • An-Nisa’: 23

حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ وَأُمَّهَاتُكُمُ اللَّاتِي أَرْضَعْنَكُمْ وَأَخَوَاتُكُمْ مِنَ الرَّضَاعَةِ وَأُمَّهَاتُ نِسَائِكُمْ وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُمْ مِنْ نِسَائِكُمُ اللَّاتِي دَخَلْتُمْ بِهِنَّ فَإِنْ لَمْ تَكُونُوا دَخَلْتُمْ بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ وَأَنْ تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ ۗ إِنَّ اللَّهَ كَانَ غَفُورًا رَحِيمًا

  • Meaning: Forbidden to you are your mothers, your daughters, your sisters, your father’s sisters and your mother’s sisters, your brother’s daughters and your sister’s daughters, your milk-mothers, your milk-sisters, the mothers of your wives, and the stepdaughters – who are your foster-children, born of your wives with whom you have consummated the marriage; but if you have not consummated the marriage with them, there will be no blame upon you (if you marry their daughters). It is also forbidden for you to take the wives of the sons who have sprung from your loins and to take two sisters together in marriage, although what is past is past. Surely Allah is All-Forgiving, All-Compassionate.
  • Section 9 of IFLTE 2017 listed down the relationships prohibiting marriage. Section 9(1) states that no man or woman, as the case may be, shall, on the ground of consanguinity, marry—
  1. his mother or father;
  2. his grandmother or upwards, whether on the side of his father or his mother, and his or her ascendants, how-high-soever;
  3. (c) his daughter or her son and his granddaughter or her grandson and his or her descendants, how-low-soever;
  4. his sister or her brother of the same parents, his sister or her brother of the same father, and his sister or her brother of the same mother;
  5. the daughter of his brother or sister, or the son of her brother or sister and the descendants, how-low-soever, of the brother or sister;
  6. his aunt or her uncle on his father’s side and her or his ascendants; his aunt or her uncle on his mother’s side and her or his ascendants.
  • Whereas Subsection (2) of the same section list down the relationship which is prohibits the marriage based on marriage relationship. This section stats that no man or woman, as the case may be, shall, on the ground of affinity, marry—
  1. his mother-in-law or father-in-law and the ascendants of his wife, how-high-soever;
  2. his stepmother or her stepfather, being his father’s wife or her mother’s husband;
  3. his stepgrandmother, being the wife of his grandfather or the husband of her grandmother, whether on the side of the father or the mother;
  4. his daughter-in-law or her son-in-law;
  5. his stepdaughter or her stepson and her or his descendants, how-low-soever from a wife or a husband with whom the marriage has been consummated.
  • Subsection (3) provides that no man or woman, as the case may be, shall, on the ground of fosterage, marry any woman or any man connected with him or her through some act of suckling where, if it had been instead an act of procreation, the woman or man would have been within the prohibited degrees of consanguinity or affinity.
  • And subsection (4) states that no man shall have two wives 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.
  1. Not a wife of another and not within the period of iddah
  • Section 13 wrote about the marriage of a woman. Subsection (1) of this section provides that no woman shall, during the subsistence of her marriage to a man, be married to any other man.
  • And subsection (2) wrote that where the woman is a janda—
  1. subject to paragraph (c), she shall not, at any time prior to the expiry of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak, be married to any person other than to the man from whom she was last divorced;
  2. she shall not be married unless she has produced—
  1. a certificate of divorce lawfully issued under the law for the time being in force; or
  2. a certified copy of the entry relating to her divorce in the appropriate register of divorce; or
  3. a certificate, which may, upon her application, be granted after due inquiry by the Syariah Judge having jurisdiction in the place where the application is made, to the effect that she is a janda;
  4. if the divorce was by ba-in kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved, and the period of ‘iddah has expired.
  • Subsection (3) stated that if the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of ‘iddah for a divorce, be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides.
  • And subsection (4) provides that where the woman is a widow—
  1. she shall not be married to any person at any time prior to the expiration of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak;
  2. she shall not be married unless she has produced a certificate of the death of her late husband or otherwise proved his death.
  1. Not within ihram haji or umrah
  • Nubaih b. Wahb reported: Umar b. Ubaidullah b. Ma’mar sent me to Aban b. Uthman as he wanted to make the proposal of the marriage of his son with the daughter of Shaiba b. Uthman.He (Aban b. Uthman) was at that time (busy) in the season of Pilgrimage.He said: I deem him to be a man of the desert (for it is a common thing) that a Muhrim can neither marry, nor is he allowed to be married to anyone.It is Uthman (b.Affan) who reported this to us from Allah’s Messenger (may peace be upon him). (Sahih Muslim)
  • Ibn Abbas (Allah be pleased with them) reported that Allah’s Apostle (may peace be upon him) married Maimulna in the state of Ihram.Ibn Numair made this addition: “I narrated it to Zuhri and he said: Yazid b. al-Asamm (Allah be pleased with him)told me that he (the Holy Prophet) married her when he was not a muhrim.” (Sahih Muslim)

Marriage to Kitabiyyah

Section 10 of the IFLTE 2017 provides that no man shall marry a non-Muslim except a kitabiyyah, and no woman shall marry a non-Muslim. Kitabiyyah is generally regarded as a Person of the Book i.e. a Jew or a Christian. Traditional commentators discourage marriages between Muslims and non-Muslims, although there is a divergence of views on when it is allowed and what restrictions are placed on the general rule above. 

Section 2 defines kitabiyyah as a woman whose ancestors were from the Bani Ya’qub; or a Christian woman whose ancestors were Christians before the prophet hood of the Prophet Muhammad; or a Jewess whose ancestors were Jews before the prophet hood of the Prophet ‘Isa. Bani Ya’qub are the descendants of the Prophet Ya’qub , who had 12 sons who formed the 12 tribes of Israel.

The Malaysian courts have adopted a strict restrictive of Shafie definition of kitabiyyah as stated in the case of Abdul Razak v Maria Menado [1965]; where the wife at the time of the marriage was a Christian and her ancestors are not originally Christian but were converted to Christian after the coming of Islam. The Singapore Syariah Court decided that the marriage that had been solemnized between the plaintiff, who was a Muslim man, and the defendant, who was a Christian woman, was void according to the Shafie School of Law. The decision was based on the fact that before the solemnization of the marriage the defendant was a Christian whose ancestors became Christians after the prophethood of the Prophet Muhammad (PBUH). The court had relied on the meaning of kitabiyyah as defined in the Minhaj at-talibin as a person whose ancestors were Christians or Jews before the prophethood of the Prophet Muhammad (PBUH) and believed in the Book of the Injil that had not been altered by the theologians.

The case of U. Viswalingam v. S. Viswalingam [1980]; reaffirmed the provision concerning marriage with a kitabiyyah by elaborating that a Muslim woman is only permitted to marry a Muslim man, although a Muslim man is allowed to marry either a Muslim woman or a Christian or a Jewess to whom this definition of kitabiyyah applies.

Prohibited Marriage

The parties should not contract a marriage on the following reasons:

  1. Consanguinity
  2. Affinity
  3. Fosterage
  4. Marrying two sister at the same time
  5. Already have four wives.

Consanguinity: Prohibition through Blood Relationship

  • Authorities

Al-Quran

An-Nisa’ verse 23 which means: “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 …”

Hadith

Ibn Abbas: “it is prohibited to marry than our wives as it is forbidden to marry one’s own mother, daughter or sister”.

The Prophet SAW: “seven types of marriage are unlawful because of blood relationship and seven types because of marriage relationship”.

  • Application

Section 9 (1) of the IFLET provides that no man or woman, as the case may be, shall, on the ground of consanguinity, marry—

  1. his mother or father;
  2. his grandmother or upwards, whether on the side of his father or his mother, and his or her ascendants, how- high-so ever;
  3. his daughter or her son and his granddaughter or her grandson and his or her descendants, how-low-so ever;
  4. his sister or her brother of the same parents, his sister or her brother of the same father, and his sister or her brother of the same mother;
  5. the daughter of his brother of sister, or the son of her brother or sister and the descendants, how-low-soever, of the brother or sister;
  6. his aunt or her uncle on his father’s side and her or his ascendants;
  7. his aunt or her uncle on his mother’s side and her or his ascendants.

Affinity: it is Prohibited through Marriage Relationship.

  • Authorities

Al-Quran

Surah an-Nisa’ verse 23 which means: “… your wives’ mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you…” 

They are:

  1.  One’s wife’s mother (mother in-law), grandmother and up: on Marriage with her becomes unlawful by merely contracting marriage with the daughter, regardless of whether the marriage was consummated or otherwise. 
  2. One’s wife’s daughter (from a previous marriage), grand-daughter and on down: Marriage with her becomes unlawful (permanently) if the marriage with her mother was consummated.
  3. The wife of one’s son, grandson, and on down: This is regardless whether the son consummated the marriage or otherwise. The verse specifically refers to one’s real sons, thus marriage with one’s foster son’s wife will be permissible, if he was to divorce her.
  4. One’s stepmother, step grandmother and on up: Meaning those women who have been in the marriage of one’s father or paternal or maternal grandfather. Allah says: “And marry not women whom your fathers married, – except what is past: It was shameful and detestable”.  (Surah al-Nisa, 21)
  • Application

Section 9 (2) of the IFLTE 2017 provides that no man or woman, as the case may be, shall, on the ground of affinity, marry—

  1. his mother-in-law or father-in-law and the ascendants of his wife, how-high-so ever;
  2. his stepmother or her stepfather, being his father’s wife or her mother’s husband;
  3. his step grandmother, being the wife of his grandfather or the husband of her grandmother, whether on the side of the father or the mother;
  4. his daughter-in-law or her son-in-law;
  5. his stepdaughter or her stepson and her or his descendants, how-low-so ever from a wife or a husband with whom the marriage has been consummated

Fosterage; it is Prohibited Because of Suckling

  • Principle

It is haram for a Muslim man to marry a woman who has suckled him during his infancy, for suckling makes her like his real mother, since milk has gone into the making of his flesh and bones. Nursing consciously or unconsciously produces feelings of motherhood in a woman and of kinship in a child. Conditions for fosterage are that the child must be below than 2 years of age and at least five times of suckling until the child’s stomach is full. The prohibition of marriage based on fosterage is effective only if the suckling occurred before the time of weaning; that is, when milk was the primary source of food. Another condition is that the child has suckled his fill on five separate occasions, a fill being defined as when the child leaves off suckling of his own accord. It is based on hadith narrated by Aishah that:”The Prophet entered the house while the man sitting with her. Signs of anger seem to appear on the Prophet’s face, as if he disliked that. She said: ‘he is my foster-brother’. The Prophet replied: ‘be sure as to who is your foster-brother for the foster suckling relationship is established only when milk is the only food for the child’.

  • Authorities

Narrated by Aishah that Aflah, the brother of Abu Al-Khir, came asking permission to enter her house after the verse of Hijab was revealed. Aishah added that she did not allow him to enter. But when the Prophet came back, she told him what she was done and the Prophet orders her to give Aflah the permission to enter the house as he was her foster-uncle.

Narrated by Uqbah bin Al-Harith: “I married so and so and then a black lady come to us and said: ‘I have suckled you both (he and his wife)’. But I think she is a liar. The Prophet turned his face away from me and I moved to face him again and I said against ‘she is a liar’. The Prophet said: ‘how can you keep her as your wife when the lady had said that she had suckled both of you. So divorce your wife’”.

Narrated by Aishah that: “fosterage made unlawful for what consanguinity made unlawful”.

Narrated by Abbas that: “it was said to the Prophet Muhammad SAW one wanted to marry the Prophet to the daughter of Hamzah and the Prophet replied: ‘she is may foster niece”.

  • Application

Section 9 (3) of IFLTE 2017 provides that no man or woman, as the case may be, shall, on the ground of fosterage, marry any woman or any man connected with him or her through some act of suckling where, if it had been instead an act of procreation, the woman or man would have been within the prohibited degrees of consanguinity or affinity.

Marrying Two Sisters at the Same Time

  • Authorities 

Al-Quran

An-Nisa’: 23 

Meaning:

“… And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously…”

Al-Hadith

Narrated by Ummi Habibah (daughter of Abu Suffian) that: “She asked the Prophet: ‘marry my sister, the daughter of Abu Suffian’. The Prophet replied: ‘so you like that? She replied: ‘yes, for even now I am not your only wife and I like that my sister should share the good deeds with me’. The Prophet replied: ‘but she is not lawful to me (because it is prohibited to marry the sister of one’s wife if that wife is still alive and the marriage is still subsisting”.

  • Application

Section 9 (4) : No man shall have two wives at any one time who are so  related to each other by consanguinity, affinity, or fosterage …”

Already Have Four Wives

  • Principle

The source of this ruling is sura an-Nisa verse 3 that allows marriage to up to four women; and after the ruling was brought into the effect the Prophet commanded that those Muslim who were married to more than 4 to keep only four and divorce others. He can marry another woman after he has divorced one or more of his wives. Sura  an-Nisa’ verse 3 which means: “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].

Consent 

Consent of Bride

Although wali mujbir has the authority to marry off his virgin daughter according to Shafie School it is recommended for a father to ask her consent. While for widow or divorcee it is mandatory to get their express consent. It is based on the following authorities:

Al-Quran

Surah al-Baqarah: 232

“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.”

Surah al-Baqarah: 230

“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah , which He makes clear to a people who know.”

Hadith

The Prophet said: “a woman without husband must not be married until she is consulted. Then a virgin must not be married until her permission is sought”. They asked the Prophet: “how a virgin’s consent be obtained?” the Prophet answered: “that she keep silence”.

Aishah reported that she asked the Prophet SAW about a virgin whose marriage is solemnised by her guardian, whether it was necessary or not to consult her? The Prophet replied: “she must be consulted”. Aishah reported to the Prophet that the girl feels shy; therefore the Prophet said her silence implied her consent.

All of you are guardians and the man is the guardian of his family. A lady is responsible for her husband’s home and his children and all of you are guardians and are responsible for your ward.

It was narrated by Khamsa al-Ansari that her father gave her in marriage when she was a matron and she disliked the marriage. So, she went to the Prophet and the Prophet declared that the marriage was invalid.

In Malaysia the consent is not necessary if certain conditions are fulfilled. Section 13 (b) provides that the marriage of ‘anak dara’ may be solemnised without her consent by wali mujbir on the conditions:

  1. The wali mujbir or the prospective husband is not hostile to her
  2. They are of the same status or sekufu
  3. Able to pay the mas kahwin which must not less than mahar mithil.

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, but the the daughter did not consent to the marriage. Therefore, the Kadhi refused to register the marriage without her prior consent. The father appealed to the Court of Appeal. The court held that the marriage was valid as expounded by the authorities of the Syafei School. COA relied on the authority Imam Nawawi which states:

“A father may at his request to marry his daughter without her consent; no matter how old the child is; provided she is a virgin. However, it is voluntary her about her husband’s will, and official permission for the marriage is necessary if she is a widow. If the father married his daughter while she is still a minor, she shall not be handed to her husband before she reaches the age of puberty…”

However since the daughter opposed to the marriage, a fasakh divorce was arranged and registered. Therefore in Malaysia marriage organised by wali mujbir without her consent is valid.

Female