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Betrothal

Al-Baqarah, ayat 235: There is no blame on you if you make an offer of betrothal (khitbah) or
hold it in your hearts.
Betrothal is preliminary to a marriage vow (nikah).
- It is a practise of custom which does not contradict the Islamic law.
- Custom becomes a principle of Islamic law if it does not contradict Syariah law.
- It is a recommended act in Islam based on customary practise, and not a religious
obligation.
Betrothal can take place upon the fulfilment of two conditions:
- At the time of the betrothal, there are no legal impediments to the marriage between
the parties:
- The woman must not be a married woman
- Where the woman is a divorcee or a widow, the betrothal can only
occur after her period of iddah has ended.
- Al-Baqarah, ayat 235: do not proceed with tying the marriage-knot
before the prescribed term of waiting has come to its end.
- Talaq Rajii (revocable divorce): It is haram to be betrothed to her as she
is still tied to her husband and the husband may decide to revoke the
divorce.
- Talaq Bain (irrevocable divorce): It is haram to openly seek a betrothal
with her, unless it is after the waiting period (iddah) of
3 months.
- Iddah of widowhood: It is haram to openly seek a betrothal with her,
unless it is after the waiting period (iddah) of 4 months and 10 days.

- The woman must not fall under the category of prohibited women
- It is impossible to have a betrothal with a woman with whom the man
is forbidden to marry, whether permanently or temporarily.
- The woman must not come within the prohibited degrees of the
relationship either by consanguinity (blood-related), affinity (kinship)
or fosterage.

- At the time of the betrothal, the woman has not been betrothed to another person:
- Hadith: Ibn Umar reported that the Prophet SAW said A man shall not be
betrothed to a woman whom his brother has already proposed to, until he
permits it or until he gives it up.
- It is haram to propose for a betrothal when the woman has been betrothed
unless the first had been rejected.
Effects of betrothal:
- Not a legal contract
- It does not give rise to the right of maintenance
- Parties do not become husband and wife
- No legal consequences if there is a breach of betrothal
Breach of betrothal:
- Al-Maidah, ayat 1: O you who believe, fulfil all obligations.
- Betrothal is only an agreement to enter into a marriage and does not constitute a
marriage in itself.
- It is possible for either of the parties to break the agreement, if there are valid reasons
for doing so.

- Maria Tunku Sabri v Datuk Wan Johani Wan Hussin: The plaintiff sought damages in
an action against the defendant for his alleged breach of promise to marry. However,
the promise was made upon contingency that the plaintiff would divorce her current
husband first. Held: Where the plaintiff had yet to divorce her husband, and had yet
to be married to the defendant, there cannot be said to have been a breach of promise
to marry. A promise to marry is only enforceable on the day of the solemnization.
Before such period, any form of promise for such purpose cannot be fulfilled.
Whether the gifts given or exchanged between the parties must be returned:
- Hadith:
i) Ibn Abbas reported that the Prophet SAW said one who gets back the gift is
like a dog which vomits and then eats its vomit.
ii) Salim reported that the Prophet SAW said whoever makes a gift, he has a
right to it, so long as he has not got the return for the gifts.
- If a man has given a gift without expecting anything from the person to whom it is
given, then he should not ask for it back. But if he has given a gift in return for
something lawful which he expects from the donee, then he can ask for its return if
the condition for which the gift was given is not fulfilled.

- Shafii & Hanbali: Gifts should be returned whether they are in existence or not. If they
are still in existence, the gifts themselves should be returned, but if the gifts have
been consumed, used or lost, their value should be returned.
- Hanafi: Where the gifts are still in existence and has not been consumed or destroyed,
the giver can ask for its return, provided that the breach was committed by the other
party.
- Maliki: If the breach is by the man, he has no right to ask for the return of the 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. However, if the gifts have been
destroyed, their value has to be paid.
- Sec. 15: The party in default must return the gifts, if any, or its value, and to pay
whatever monies have been expended in good faith by or for the other party in
preparation for the marriage.

- Aishah v Jamaluddin: The man broke a promise to marry and the woman claimed the
payment of RM25 mas kahwin, RM800 marriage expenses and also claimed the right
to keep the engagement ring. The learned Chief Kadi gave judgment for the woman
and ordered the man to pay the damages agreed in the betrothal agreement, and also
ordered payment of RM25 for clothes presumably prepared for the marriage, and
RM400 for the cost of repair of the house in preparation for the marriage.

- Salbiah Othman v Hj Ahmad: The defendant had breached his promise to marry
without a valid reason. The plaintiff claimed RM200,000 in damages for defamation,
and RM9677 in damages for preparation of the marriage. However, the court rejected
the claim for defamation and only allowed a claim of damages of RM8277 which was
inclusive of the expenses incurred for preparation of the marriage.

- In the event that the man or woman dies after the betrothal, but before the
solemnization of the marriage, the promise (or contract) to marry is considered
impossible to perform, thus the gifts must be returned.

Marriage in Islam
Khurshidi Bibi v Muhammad Amin: Marriage among Muslims is not a sacrament, but is in the
nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and
undertones, but legally, in essence, it remains a contract between the parties which can be
the subject of dissolution for good cause.
Nikah: Joining together or tiding together.
- A marriage or a contract legalising the relationship between a man and a woman.
Marriage is considered a religious obligation in Islam.
- An-Nur, ayat 32: And marry the unmarried among you and the righteous among your
male slaves and female slaves.
- Ar-Rum, ayat 21: And amongst His signs is that He created for you spouses from among
yourselves that you may dwell in tranquillity with them
- Hadith:
i) Ibn Abbas reported that the Prophet SAW said when one is married, he
secures half of his religion. So let him fear God in the other half.
ii) Anas bin Malik reported that the Prophet SAW said marriage is my Sunnah,
whoever keeps away from my Sunnah, he is not among me.
- Originally, marriage is only considered a recommended act (sunat).
- However, it becomes a compulsory act (wajib) when the man is able to
maintain a wife and must marry in fear of adultery (zina).
- Marriage is forbidden (haram) when a man cannot maintain a wife, is suffering
from a serious illness, except where the woman agrees, or where the marriage
may lead to immoral acts.
Marriage Requirements (according to the Shafii school of thought):
i) A male party
ii) A female party
iii) A wali
iv) Two witnesses
v) The pronouncement of ijab and qabul
Sec. 11: A marriage shall be void unless all the conditions necessary, according to Hukum
Syarak (Islamic law according to any recognised mazhab or school of thought), for the validity
of the marriage are satisfied.
Conditions of the husband:
- Must be a Muslim
- Al-Baqarah, ayat 221: Nor marry your girls to unbelievers until they believe
- Sahih Muslim Kitab al-Nikah: A muhrim (forbidden to marry) should neither
marry himself nor arrange the marriage of another one nor should he make a
proposal of marriage.
- Must not already have four wives
- Hadith: Imam Malik reported that the Prophet SAW told Ghailan bin
Ummayyah Attsagafi who embraced Islam when he had ten wives, choose
four of them and divorce the rest.
- Must be a specific man (taayin)
- Must not be within ihram haji or umrah
- Must consent to the marriage voluntarily and not under duress
- Must be a man and not khunsa musykil
Conditions of the wife:
- Must be a Muslim
- Al-Baqarah, ayat 221: Do not marry unbelieving women until they believe
- Must be a specific woman
- Must not:
- Be a wife to another person
- Maria Tunku Sabri v Datuk Wan Johani Wan Hussin
- Be within her period of iddah in connection with that person.
- Al-Baqarah, ayat 235: do not proceed with trying the marriage-knot
before the prescribed term of waiting has come to its end.
- Must not be within ihram haji or umrah
- Must not be a muhrim (forbidden to marry) to the prospective husband
- Permanent prohibition:
- Sec. 9(1) Consanguinity
- Sec. 9(2) Affinity
- Sec. 9(3) Fosterage

- Temporary prohibition:
- Another mans wife
- Still in her period of iddah
- A fifth wife
- A pregnant woman
- Two living sisters at a time
Marriage with a Kitabiyah:
- Al-Maidah, ayat 5: Lawful to you in marriage are not only chaste women who are
believers but chaste women among the people of the Book revealed before your
time when you give them their dowers and desire chastity not lewdness nor secret
intrigue.

- Sec. 2, Kitabiyah:
- A woman whose ancestors were from the Bani Yaqub, or
- A Christian woman whose ancestors were Christians before the prophethood
of Prophet Muhammad, or
- A Jewess whose ancestors were Jews before the prophethood of Prophet Isa

- Sec. 10(1): No man shall marry a non-Muslim except a Kitabiyah


- Sec. 10(2): No woman shall marry a non-Muslim
- Thus, it is against the law for Muslim women to marry a Kitabiyah, as only
Muslim men are allowed to marry a Kitabiyah.
- A male Kitabiyah who intends to marry a Muslim woman must become a
Muslim before the marriage can be solemnized.

- However, under the Kelantan IFLE:


- Sec. 16(3): No male person can marry a person who is not a Muslim
- Sec. 16(4): No female person can marry a person who is not a Muslim.

- Abdul Razak v Maria Menado: The wife, at the time of the marriage, was a Christian,
but her ancestors were not originally Christians, but were converted to Christianity
after the coming of Islam. Held: 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 SAW.
Age of marriage:
An-Nisa, ayat 6: Make trial of orphans until they reach the age of marriage; if then you find
sound judgment in them release the property to them.
- Hadith: Aishah reported, the Prophet married me when I was six years old and I was
admitted to his house at the age of nine.
- Sec. 8: No marriage may be solemnized where the man is under the age of eighteen
or the woman is under the age of sixteen.
The Sunni schools of thought take the view that it is the age of puberty which determines the
capacity to marry.
- Shafii: The age of majority of both, a boy and girl, is 15.
- Hanafi: A girls age of majority is 16, while a boys age is 18.
Ibn Shubruma, Uthman al-Batti and Abu Bakar Al-Asamm: Denied the validity of any
guardianship in marriage over those who have not reached puberty on the grounds that the
basis of guardianship is the benefit of the ward (dependant) and that there is no benefit in
marriage before puberty.

Consent:
Sec. 13: A marriage shall not be recognized and shall not be registered unless both parties to
the marriage have consented, and either
i) The wali of the woman has consented, or
ii) The Syariah judge has granted his consent to the wali Raja to solemnize the marriage
Sec. 37: It is an offence punishable with a fine or imprisonment for any person to use any
force or threat
- To compel a person to marry against his will, or
- To prevent a man eighteen years old and above, or a woman sixteen years old and
above, from contracting a valid marriage.
Consent of the bride:
- Shafii: Consent of the bride is required except in cases where a virgin girl is given in
marriage by a wali mujbir (father or paternal grandfather)
- A father may dispose the hand of his daughter as he pleases without asking
her consent provided that she is still a virgin.
- Sec. 13, Kelantan IFLE: The marriage of a virgin may be solemnised without her
consent by the wali mujbir, if:
- The wali mujbir or the prospective husband is not hostile to her
- The prospective husband is of the same status as her
- The prospective husband is able to pay a reasonable mas kahwin
- Where a father disposes of the hand of his virgin daughter, whether minor or
adult, in favour of a man of inferior condition without obtaining her consent,
the contract is valid unless the woman applies for its cancellation.

- Her formal consent to the marriage is necessary if she has already lost her
virginity.

- It is usual for the bride to be asked for her agreement to the proposed marriage.
However, this is not essential where it is her father or grandfather who gives her in
marriage.

- Syed Abdullah Al-Shatiri v Shariffa Salmah: An application for the validity of the
marriage was made by the father to the Syariah Court with evidence of the marriage
that he solemnised as wali mujbir for his daughter. The court declared the marriage
invalid in reliance of the hadiths of the Prophet SAW regarding a virgins permission
for her marriage, and the saying of Imam Shafii to the effect that if there is a conflict
between his ruling and a sound hadith, then his ruling should be rejected. On appeal
to the Board, it was held:
- Under the Shafii school, where a virgin is given away in marriage by her father,
her consent is not essential to the validity of the marriage and the marriage is
therefore, valid.
- The Shafii jurists agreed that although it is commendable to seek the consent
of a virgin, however morally reprehensible the action of the guardian may be
in not doing so, it does not invalidate the marriage.
- However, in this instance, the Board felt that it was unreal to ask for the
continuance of a marriage to which the wife was clearly opposed, and a divorce
was arranged.

Consent of the wali:


- Hadith (Aishah reported that Prophet SAW said):
- The marriage of a woman who marries herself without the consent of her
guardian is void.
- There is no marriage contract except that contracted by a guardian and the
one who has no guardian has the ruler as guardian.

- Shafii: Consent of marriage of a woman should be given through her wali or guardian.
- Only a wali mujbir can give away a girl who has not attained puberty in
marriage.

- Hanafi: A woman who has attained puberty can give herself in marriage without the
consent of a wali or guardian.
- Sec. 7(1): A marriage shall be solemnized by
- a) the wali in the presence of the Registrar
- b) the representative of the wali in the presence and with permission of the
Registrar, OR
- c) the Registrar as the representative of the wali
- Sec. 7(2): Where a woman has no wali from nasab in accordance with Hukum Syarak,
the marriage may be solemnised only by the wali Raja.

- Kelantan IFLE, Fourth Schedule, Conditions required of a wali:


- A Muslim
- A man
- Baligh
- Voluntarily and not under duress
- Not within ihram haji or umrah
- Not fasik
- Of sound mind

- Types of wali:
- Wali Khas (Wali Nasab)
- Wali Mujbir: Wali who is given power to proceed with the marriage of
a virgin woman without her permission
- Sec. 2: Applies to the father and paternal grandfather only
- Wali Ghayr Mujbir: Wali who does not have the power to proceed with
the marriage of a virgin woman without her permission
- Applies to all wali, except the father and paternal grandfather
- Wali Aqrab: A person who is closer to the bride through blood ties and
has a bigger right to become her wali
- Wali Abad: A person who is not close to the bride through blood ties
and has no right to become her wali where a wali aqrab exists.

- Kelantan IFLE, Fourth Schedule: Only where the wali does not fulfil the
required conditions may a transfer of wali take place.

- Wali Am
- Sec. 2, Wali Raja: A wali authorised by the YDPA or by the Ruler to give
away in marriage a woman who has no wali nasab.

- Kelantan IFLE, Fourth Schedule: Reasons for transfer from wali nasab
to wali Raja:
- Wali nasab is not available
- Wali nasab lives two marhalah away or more
- The whereabouts of the wali nasab is unknown
- Wali aqrab refuses to be the wali
- Wali aqrab is within ihram haji or umrah
- Ismail Abdul Majid v Aris Fadillah: A marriage contracted with the womans brother
acting as wali was held to be invalid and thus, annulled, as the womans paternal
grandfather (wali mujbir) was still alive and was not senile, but was of sound mind
and perfectly capable of acting as wali at the time the marriage was solemnized.

- Farah Hanim Mohd Yassin v Mohd Khairul Nizam Baharum: During the solemnisation
of the marriage, the applicant's guardian was not present but had delegated his power
to the jurunikah by telephone. As the applicant's father had died, the wali in this case
was her brother. The issue was whether the act of delegating the authority of wali
(wakalah) to the jurunikah, who was not lawfully authorised to solemnise marriages,
was valid under Hukum Syarak. Held: The court was satisfied that all the conditions of
wakalah by the applicant's brother (al-muwakkil) to the jurunikah were fulfilled.
- Conditions of wakalah according to Shafii:
- Al-Muwakkil (wali whose authority will be delegated)
- Delegatee (person whom authority will be delegated to)
- Subject matter (delegation to be wali)
- Sighah (express offer and acceptance)
- In this case, there was communication by telephone between the jurunikah
and the applicants brother for wakalah, the subject matter was the delegation
to be guardian of the said marriage, and the existence of offer and acceptance
between the guardian and the jurunikah.

- Norazimah Man v Mohd Hamdan Ismail: The applicant sought to verify the status of
her marriage to the respondent and an order to have the said marriage registered.
The marriage was solemnised by a jurunikah (wali tahkim) as her biological father had
died while the applicant's brother was not allowed to attend their wedding. Held: The
applicant's marriage to the respondent was voidable, and the parties ought to be
separated, for failure to fulfil the condition for a wali or guardian.
- Where the applicants wali nasab, which was her brother, was considered
absent, the wali entitled to solemnise their marriage was wali Raja and not wali
tahkim.
- However, the applicant in this case did not apply to a wali Raja. If the marriage
was said to have taken place using a wali Raja, no evidence was tendered to
show that the jurunikah was appointed as wali Raja by Yang di-Pertuan Besar
Negeri Sembilan, the Ruler of the State.

- Rosniza Mustaffa v Abu Bakar Dawam: The marriage of the applicant and respondent
was solemnised by the assistant imam at Masjid Abu Ubaidah al-Jarrah, Kuala Lumpur
and was witnessed by two male witnesses. However, at the time of her marriage, the
applicant's father was still alive and lived in Kelantan. He had not given any wakalah
to the imam. Held: The marriage was voidable and could not be registered.
- As the applicants father, who was not present during the wedding ceremony,
was more than two marhalah away, the wali Raja would have been the person
qualified to solemnise the marriage. However, neither did the applicant make
any application for permission to marry nor did she make an application for a
wali Raja from the Federal Territory. Further, there was no proof of
authorisation or permission given to the imam before the marriage or proof
that he was appointed as wali Raja.

- Hashim v Fatimah: Where both parties and the wali of the woman were resident in
Kedah, the distance between the residence of the womans wali and the place of
marriage, which was Padang Besar, Thailand, was less than two marhalah, the
marriage was held invalid.

- Hussin v Saayah: The couple had gone to Thailand and got married before a lebai who
was not the Kadi without the consent of the plaintiff as the wali or his representative.
Held: The marriage was invalid and was thus, annulled, as there was no evidence that
the wali had refused to give his consent and even if he had refused the parties could
have applied to the Imam or the court to obtain the consent of the wali Raja.

- Re Wan Abdul Aziz Embong: The marriage in Narathiwat was found to be invalid where
it was solemnised by a wali Raja whose power is restricted to Pattani only.

- Azizah Mat v Mat Salleh: The applicant was engaged and intended to be married,
however, her father refused to be her wali on the ground that he wanted her to wait
until she was employed. Held: It was an unreasonable excuse, thus, her application
for a wali Raja was allowed.

Presence of witnesses:
Al-Baqarah, ayat 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:
i) Imam Ahmad reported that the Prophet SAW said there is no marriage
except where there is a wali and two witnesses who are adil. Otherwise the
marriage will be invalid.
ii) Ibn Abbas reported that the Prophet SAW said: The fornicatress are those
who marry by themselves without witnesses.
- Shafii: Two male witnesses
- Hanafi: One male witness and two female witnesses

- Sec. 22(2): The entry of the marriage in the Marriage Register 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.
- Fourth Schedule, Kelantan IFLE, Conditions required of witnesses:
- Must not be less than two persons
- Must be persons of sound mind
- Must be past the age of puberty (baligh)
- Must be male
- Must be persons who can hear, see and speak
- Must understand the requirements of ijab and qabul
- Must be just

Ijab and qabul:


Sahih Muslim Kitab al-Hajj: Fear Allah concerning women! Verily you have taken them on the
security of Allah and intercourse with them has been made lawful to you by words of Allah.
- Ijab: An offer of marriage made from a womans wali or his representative.
- Qabul: An acceptance of marriage from a man or a confession that he accepts the
womans willingness to become his wife.

- Sighah aqad according to Shafii and Hanafi: The word nikah or tazweej must be used
explicitly during the solemnization.

- Fourth Schedule, Kelantan IFLE:


- Sighah ijab:
i) The lafaz tazweej or nikah or the translation of both in whatever
language shall be used.
ii) The lafaz ijab may be made by the wali himself or his representative.
- Sighah qabul:
- An acceptance from the man himself or his representatives after sighah
ijab (offer of marriage) without the insertion of any extraneous words
or undue delay.

Mas kahwin and pemberian


An-Nisa, ayat 4: And give the women upon marriage their bridal gifts graciously. But if they
give up willingly to you anything of it, then take it in satisfaction and ease.
Sec. 2:
- Mas kahwin: 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 or in the form of something that is capable of
being valued in terms of money (e.g: jewellery)
- Pemberian: A gift in the form of money or things given by a husband to a wife at the
time of the marriage.
Sec. 21:
- 1) The mas kahwin shall be paid by the man to the woman in the presence of the
person solemnizing the marriage and two other witnesses.
- 2) The Registrar shall ascertain and record the value and other particulars of the mas
kahwin, and any pemberian.
Hussin v Moh: It was agreed at the betrothal that the mas kahwin should be RM500. The
parents of the bride had spent RM350 in preparation for the marriage. On the day of the
marriage, the bridegroom sought to pay the mas kahwin, RM300 in the form of cash and
RM200 in the form of jewellery. However, the brides father refused and claimed damages
worth RM350. The judgment at the Kadis court was given in his favour. On appeal, the Board
of Appeal held: There was no reason why the payment of mas kahwin partly in cash and partly
in jewellery should be refused, thus the appeal was allowed.

Prohibited Marriages
An-Nisa, ayat 23: Prohibited to you for marriage are your mothers, daughters, sisters, father's
sisters, mother's sisters, brother's daughters, sisters daughters, your milk mothers who
nursed you, your sisters through nursing, your wives mothers, and your step-daughters under
your guardianship born of your wives unto whom you have gone in 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.
- Hadith:
i) Abu Hurairah reported that the Prophet SAW said one should not combine
a woman and her fathers sister nor a woman and her mothers sister.
ii) Aishah reported that the Prophet SAW said Fosterage makes unlawful what
consanguinity makes unlawful.

- Sec. 9: Marriage is prohibited where the parties are related on the ground of
- (1) Consanguinity
- (2) Affinity
- (3) Fosterage

- Effects of marriage with a muhrim:


- The marriage is void and talaq (divorce) must be declared immediately
- If the forbidden relationship was discovered after consummation, the wife can
recover the dower.
- If the forbidden relationship was discovered before consummation, nothing
can be recovered.
- The wife will not be entitled to nafkah iddah whether the forbidden
relationship was discovered before or after consummation.
Under Islamic law, in order for a marriage to bear the character of a suitable union in law, the
husband must be equal to the woman in social status. However, the wife is not required to
be of equal status with the husband, as through marriage he is regarded as having raised her
to such position.
- Shafii: A wali cannot give a woman in marriage to a man of inferior condition except
with her consent. Such a marriage is void even if it is the father who gives the woman
in marriage, thus, both, the woman and her wali must consent to it.
- Without the consent of the wali, neither the Sultan nor the judge or Kadi can
legally give a woman in marriage to a man of inferior status, even though she
may desire it.
- The factors to be taken into consideration in determining whether the man is
of equal status are birth, character, profession and absence of physical defects.

- Hanafi: Equality (kifaa) between the man and woman is a necessary condition in
marriage.
- An ill-assorted or runaway marriage may be liable to be set aside by the court.
- The factors to be considered for determining equality are family, religion,
profession, freedom, good character and means.
- If a woman who has attained majority contracts herself with a man who is not
her equal without the consent of any of the male relations entitled to be her
wali if she were a minor, the court on the application of such relations has the
power to rescind the marriage.
Polygamous Marriage
Islamic law permits a man to marry more than one wife up to a maximum of four provided
that he is able to treat his wives with equity.
- Polygamy was revealed after the effects of wars of Islam left countless Muslim girls to
be orphans and women to be widows. Thus, polygamy was adopted to encourage
social justice; to prevent the orphan girls and widows from being unjustly dealt with.
- The Prophet SAW practised polygamy to strengthen the preaching of Islam and to
provide protection to widows of the war.
An-Nisa, ayat 3: And if you fear that you will not deal justly with the orphan girls, then marry
those of your choice, two or three or four. But if you fear that you will not be just, then marry
only one or those your right hand possesses. That is more suitable to prevent you from
committing injustice.
- The ayat does not render polygamy a compulsory act for all Muslim men. It is merely
permissible due to public interest.
- However, if the feeling of fear arises before the act of polygamy is done, that is if a
man can foresee that he will be unjust, then he should only marry one woman.
- The ayat highlights that prevention is far better than allowing a woman to suffer.
An-Nisa, ayat 129: And you will never be able to be fair and just as between wives, even if it
is your ardent desire. So do not incline completely toward one and leave another hanging.
And if you amend your affairs and fear Allah - then indeed, Allah is ever Forgiving and Merciful.
- Shafii interpreted ayat 129 to mean: That you may not cause them (the wives) to suffer
in their livelihood
- Just in both ayat is a main requirement, but it does not indicate feelings. It
encompasses maintenance, shelter, clothing, food and social relationships.
Hadith: Imam Malik reported that the Prophet SAW told Ghailan bin Ummayyah Attsagafi
who embraced Islam when he had ten wives: Choose four of them and divorce the rest.
Conditions for polygamy:
- A man is permitted to only have four wives at a time
- A man must do equal justice as humanly possible, that is provide equitable treatment
- A man must perform polygamy in good faith
Polygamy is the best solution for:
- A wife who suffers from serious illnesses
- A wife who cannot bear children
- A wife who is of unsound mind
- A wife who is of old age and cannot look after her family and children
- A wife of bad character and cannot be changed
- In times of war, to assist widows and orphaned children
Sec. 23:
- 1) No married man shall enter into another marriage except with a prior written
permission from the Court.
- 1A) Where the marriage is entered into without such permission, it shall not be
registered unless the Court is satisfied that the marriage is valid according to the
Hukum Syarak.

- 3) An application for permission must be submitted to the Court accompanied by an


iqrar stating the grounds:
- On which the marriage is considered just or necessary
- The present income of the applicant
- Particular of his commitments, financial obligations and liabilities
- The number of his dependants, including his future dependants as a result of
the proposed marriage
- Whether the consent or views of the existing wife or wives have been obtained

- 4) The Court will summon the relevant parties for information and will only grant the
permission applied for if it is satisfied that:
- a) The proposed marriage is just or necessary
- b) The applicant has the means to enable him to support, as required by
Hukum Syarak, all his wives, dependants and future dependants.
- c) The applicant would be able to accord equal treatment to all his wives as
required by Hukum Syarak
- d) The proposed marriage would not cause darar syarie to the existing wife or
wives.
- Sec. 2, darar syarie: Harm affecting a wife in respect of religion, life,
body, mind, dignity or property.

- 6) If any of the parties are dissatisfied by the Courts decision, such party may appeal.
- 7) If a married man contracts a marriage against Sec. 23(1), he must pay immediately
the entire amount of the mas kahwin and the pemberian due to the existing wife or
wives, the failure of which shall cause it to be recoverable as a debt.
Aishah Abdul Rauf v Wan Mohd Yusof: The wife appealed against the decision of the Syariah
High Court giving permission to the husband to marry again. The trial judge found that the
respondent had the means to support more than one wife and he feared that such persons
could commit zina if they were not allowed to marry. Held: The Board of Appeal allowed the
wifes appeal on the grounds that:
- Sec. 23(4) lays down four conditions which the Court must consider satisfied before
granting permission. The trial judge, however, only considered Sec. 23(4)(b) in regards
to his condition of sufficient means through a statement given by him without any
proof or evidence in support, and had failed to consider the other conditions under
Sec. 23(4).
- The trial judge was of the opinion that once Sec. 23(4)(b) is satisfied, the other
conditions under Sec. 23(4) are automatically fulfilled. In fact, all the conditions under
Sec. 23(4) are equally important and must be proven separately.
- The husband had failed to prove that the marriage is just and necessary as under
Sec. 23(4)(a), which was sufficient for the judge to dismiss the application.
- There was insufficient evidence to show that the husband was able to accord equal
treatment to all his wives and that the proposed marriage would not cause darar
syarie.
- The conditions under Sec. 23(4) were designed to ensure that there will be justice
between the wives as required under the Quran. It does not seek to abolish polygamy,
but instead provides what is considered necessary to achieve justice for the family.
Sharif Jamaluddin v Kuning Jasman: The wife refused to give her consent for her husbands
application for polygamy, and said that she would request for a divorce if her husband
proceeded with it. The husband refused to divorce her as he still loved her. The wife had been
sick for almost 17 years, and since then they have not had any marital relationship. She
applied to court for a maintenance of RM500 for herself, and RM1000 for her children, should
he decide to go through with the polygamous marriage. Held: The court allowed the
husbands application, taking into consideration that the couple have had no martial
relationship ever since the wife was sick 17 years ago. Thus, the husband was ordered to pay
the total of RM1500 monthly as maintenance for the wife and children.
Rajamah Mohamed v Abd Wahab: The Syariah subordinate court allowed the husbands
application for polygamy on the grounds that he has means to support two wives and in fear
of zina as the prospective second wife had a very close relationship with the husband because
they worked in the same place. Upon the wifes appeal, the court held: The husbands
financial means failed to prove that he is capable and has means to support more than one
wife. Due to the husbands failure to fulfil all conditions and requirements in Sect. 23(4), the
court rejected the husbands application for polygamy.
Ruzaini v Nurhafizah: Although the husband acquired a consensus from the wife to marry
another, the court did not approve the case because it had doubts on the husbands capability
to be fair to both wives and dependants after it was proven that the husband had insufficient
means to support more than one wife.

Failure to give proper justice to wife, Sec. 128: Failure to give proper justice to a wife
according to Hukum Syarak is an offence punishable with a fine not exceeding RM1000, or 6
months imprisonment, or both.
Effect of marriage on the legal status of women under Islamic Law
Rights of a married woman:
Sec. 3, Married Women Act 1957: A married woman shall
- Be capable of acquiring, holding, and disposing of any property
- Be capable of rendering herself, and being rendered, liable in respect of any tort,
contract, debt or obligation
- Be capable of suing and being sued in her own name either in tort, in contract or
otherwise and shall be entitled to all remedies and redress for all purposes
- Be subject to the law relating to bankruptcy and to the enforcement of judgments and
orders
Maintenance during the subsistence of the marriage
An-Nisa, ayat 34: Men are the protectors and maintainers of women because Allah has given
one over the other and because they support them from their means. So righteous women
are devoutly obedient, guarding in the husband's absence what Allah would have them guard.
- A wife is entitled to reasonable maintenance from her husband during the marriage.
Conditions for maintenance:
- To be paid during the subsistence of a valid marriage
- When both can derive benefits from the marriage (perform their marital obligations)
- When wife is not nusyuz (Sec. 59(2))
Abdul Kadir v Hajjah Fatimah: The wife brought a claim for maintenance for the past 15
months at the rate of RM30 monthly. She claimed that her husband had sent her back to her
grandfathers house and since then had not given any maintenance to her. The husband
claimed that the wife went back to her grandfathers house at her own accord. After hearing
the parties and their witnesses, the wife was asked to take an oath as to the truth of her
statement, and judgment was ordered in her favour.
Roslan Abdul Ghani v Zulkifli: The wife, who was the second wife of the defendant, claimed
payment of maintenance for herself which the defendant had failed to give. The husband did
not attend court, thus, after the wife took an oath that she had been faithful to the husband,
the Kadi held that she had not lost her right to maintenance and payment was ordered.
Matrimonial offences
Ill-treatment of spouse, Sec. 127: A man who ill-treats his wife or cheats his wife of her
property, or vice versa, commits an offence punishable by a fine of RM1000 or 6 months
imprisonment, or both.
Re Ketuna Bibi: The accused was charged with criminal breach of trust of property belonging
to her husband. The magistrate ruled that the charge was groundless where the wife has joint
possession of the husbands property and cannot be charged with disposing of the property
of the husband in any way. However, the High Court ruled that in Muslim law there is no
community of interest between husband and wife and therefore it is possible for a Muslim
wife to commit theft or criminal breach of trust of her husband's property.
Mohamed Habibullah v Faridah: The plaintiff claimed damages and sought an injunction to
restrain the defendant, her husband, from assaulting, harassing or molesting her and
members of the family. Where the criminal offences alleged to have been perpetrated
constituted the foundation of her cause of action, the Supreme Court held that the allegations
of assault and battery by the plaintiff fell within Sec. 127 of the Act, thus giving power to the
Syariah court to grant the plaintiff an injunction.