Valid Marriage

(a) Hukum Syarak

• In surah Ar – Rum (30 : 21) in the Quran stated that :

And of His signs is that He created for you from yourselves mates that you may find

tranquillity in them; and He placed between you affection and mercy. Indeed in that are

signs for a people who give thought.

Reported by al-Bukhaari, 4741

• The Prophet (pbuh) said: “No previously-married woman (widow or divorcee) may be married until she has been asked about her wishes (i.e., she should state clearly her wishes), and no virgin should be married until her permission has been asked (i.e., until she has agreed either in words or by remaining silent).” They asked, “O Messenger of Allaah, how is her permission given (because she will feel very shy)?” He said: “By her silence.”

Marriage Requirements (Pillars)

Jumhur (majority of Scholars)

• Offer and acceptance are among the pillars. For most of these scholars, the offer must be from the woman's side and the acceptance from the man.

• The two parties to the contract: husband and the guardian of the woman (wali).

• The presence of two witnesses• Dowry.

Hanafi school

• Ijab & Qabul only

Syafii school• A male party• A female party• A wali• Two witnessess• Ijab & Qabul

(b) Law – Islamic Law

IFLA Act 1984 :• Section 11 A marriage shall be void unless all

conditions necessary, according to Hukum Syarak, for the

validity thereof are satisfied

Kelantan Islamic Family Enactment 1983

• Condition of marriage :

(a)Zaujun (husband)

(b)Zaujah (wife)

(c)Wali

(d)Two witness

(e)Ijab & Qabul

Conditions of the 5 pillars

• (a) HusbandSurah al Mumtahanan (6):10O you who have believed, when the

believing women come to you as emigrants, examine them. Allah is most knowing as to their faith. And if you know them to be believers, then do not return them to the disbelievers; they are not lawful [wives] for them, nor are they lawful [husbands] for them.

• Hadith in Malik al-Muwatta,The Prophet (pbuh) told Ghailan Bin

Umayyah Attsagafi who embraced Islam when he had ten wives : “Choose four of them and divorce the rest”

The Kelantan Law provides the conditions of the husband as follows :

I. MuslimII. Not within ihram haji or umrahIII. A specific man (ta’yin)IV. Not having four wivesV. Not under duress (voluntarily)VI. A man and not khunsa musykil

(b) Condition of wife

• 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. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you –

( al-Baqarah : 221 )

The Kelantan Law provides the conditions of the wife as follows

I. MuslimII. A specific woman (ta’ayin)III. Not a muhrim to the prospective husbandIV. Not a wife to another personV. Not within the period of iddahVI. Not within ihram haji or umrah

(c) wali• The word ‘wali’ is taken from the Arabic word

Al-Wilayah meaning • a) From the language perspective: The willingness to act, manage or the authority

to administer something.• b) From the terminology perspective: Someone

who possesses or has been granted by syara’ the authority to perform a marriage contract.

• Quran in (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.

Ibn Hiban; Ahmad

• Hadith :The Prophet (pbuh) said “ there is no

marriage except where there is wali and two witnesses who are just (adil). Otherwise the marriage will be invalid.

Conditions required of wali

I. A muslimII. A manIII. Baligh (pass the age of puberty)IV. Voluntarily and not under duressV. Not fasik (reprobate person)VI. Sound mind

(d) Witnessess

• Quran in surah al Baqarah : 282 And bring to witness two witnesses from

among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses - so that if one of the women errs, then the other can remind her

Hadith Tirmizi, Mishkat-ul-Masabih, Vol II, p 653

• Ibn Abbas reported that the Prophet (pbuh) said : “ The fornicatress are those who marry by themselves without witnesses”

Conditions required of witnesses

1. Not less than two person2. Muslims3. Sound mind4. Baligh5. Male6. Can hear, speak, and see7. Understand sighah ijab & qabul8. Just

(e) Ijab and Qabul• Sahih Muslim Kitab al-Hajj, Vol 2, p

615“ Fear Allah concerning women! Verily

you have taken them on the security of Allah and intercourse with them has beem made lawful to you by words of Allah”

In Kelantan Enactment,

a) Sighah ijab - lafaz tazwij or nikah or the translation of both in

whatever language shall be used - may be made by the wali himself or his

representativesb) Sighah qabul - an acceptance from the man himself or his

representatives after sighah ijab (offer) without the insertion of any extraneous words or undue delay

(c) Case

Ramli bin Abdul Rahman V

Marlia Akmar Bt Ramli

wali refused

Facts• In Mahkamah Rendah Syariah Hulu Langat, the

court gave favour to the plantiff (Marlia), allowing the P to get married to Kassim B. Mukim, under the consent of wali Raja.

• P’s father (Ramli) applied to Mahkamah Tinggi Syariah Shah Alam to annulled the marriage on the ground :

• - no consent• - had his own choice for the daughter

Judgment• Mahkamah Tinggi Shah Alam held that the

refusal of the appellant (Ramli) to become the wali mujbir was not on a valid reason.

• The appellant failed to prove that he had his own choice of husband to be for the respondent.

• The respondent marriage was valid.

• This case illustrated that a wali can only refused to give consent on a valid reason.

• Hadith by the Prophet (pbuh):له ولى ال من ولى السلطان

Meaning:• “Sultan / King is the guardian for those who do

not have a guardian”.• Narrated by Ahmad and Ashabul Sunan Al-

Arba`ah from Aishah.

A woman who has problems with her wali to get married will require WaliHakim under the following conditions:a) Wali refusesb) Wali disappears / lostc) Wali for a convertd) Wali for an illegitimate childe) Wali for a woman who does have wali nasab

Section 13(b) Islamic Family Law Federal Territory stated:

A Syarie’ Judge who has the authority in the area in which the bride is staying or someone who has been given the authority in general or specific for that purpose by the Syarie’ Judge has, after a fair investigation in front of everyone involved, given his consent to the marriage by the Wali Hakim as stipulated by the Syara’ Laws, the agreement can be given to a woman who has no wali nasab according to Syara’ Laws or if the wali cannot be found or if the wali refuses to give his consent without justifiable causes.

(d) Opinion from others

• Merujuk kepada kamus istilah undang-undang keluarga Islam ditulis oleh Dr Zaleha Kamaruddin dan Puan Raihanah Abdullah, wali enggan atau wali `adhal ialah wali yang telah diminta oleh seseorang perempuan untuk menikahkannya dengan seorang lelaki yang sekufu dan dia enggan menikahkannya tanpa alasan. Dalam hal ini, hakim atau Qadhi berhak menikahkannya, setelah ternyata kedua-duanya sekufu dan wali tersebut telah diberi nasihat agar menarik balik keengganannya itu. Sekiranya wali tersebut masih enggan, maka hakim berhak menikahkan perempuan tersebut, Inilah pendapat mazhab Syafie dan Abu Hanifah yang muktamad. Manakala ulama lain pula berpendapat bahawa perempuan tersebut boleh dinikahkan oleh walinya yang lebih jauh hubungannya (wali ab'ad).

(e) Conclusion

• A valid marriage is a marriage that fulfilled all the conditions according to Hukum Syarak.

• A wali cannot refused to give consent for the marriage without a valid reason.

Thank you..