SUBSTANTIVES MARRIAGE REQUIREMENTS

ISSUE :

ZIRA HAS A BOYFRIEND AND PLANNING TO MARRY HER BOYFRIEND ALTHOUGH HER PATERNAL UNCLE OBJECTED TO HER PLAN.
THUS, WHETHER ZIRA COULD MARRY HER BOYFRIEND DESPITE HER UNCLE OBJECTION?

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE FACTS : ZIRA IS AN ORPHAN AGED 19 YEARS OLD

IT IS HER PATERNAL UNCLE THAT RAISED HER

SHE HAD NOT MARRIED YET, THEREFORE A VIRGIN

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAWS : A CODE OF MUSLIM PERSONAL LAW AGE OF MARRIAGE FOR WOMAN IS THE AGE WHERE SHE BEGINS TO MENSTRUATE, THUS AGE OF COMPLETE 15 YEARS OLD

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAWS : HADITH REPORTED BY AYESHA, WHERE THE MESSENGER (PBUH) HIMSELF SAID : The Marriage of a woman who marries herself without consent of her guardian is void. He said these words three times. If there is cohabitation, she gets dower for the intercourse the husband had had. If there is a dispute, the Ruler is the guardian of one who has none.

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAWS : IFLA (FEDERAL TERRITORIES) ACT 1984 SEC. 8 STATED :

NO MARRIAGE SHALL BE SOLEMNIZED UNDER THIS ACT WHERE ...... THE WOMAN IS UNDER THE AGE OF SIXTEEN EXCEPT ......

SUBSTANTIVES MARRIAGE REQUIREMENTS

LAW HADITH FROM HISHAM BIN URWAH THAT THE MARRIAGE CONTRACT WITH AISHA WHILE SHE WAS SIX YEARS OLD, AND CONSUMMATED THE MARRIAGE WITH THE PROPHET WHILE SHE WAS NINE YEARS OLD, AND WHEN PROPHET DIED, SHE WAS 18 YEARS OLD
6

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAW

SHAFII LAW STATED THAT WALI MUJBIR CONSISTS OF ONLY FATHER AND PARTERNAL GRANDFATHER.
FURTHERMORE, A FATHER CAN DISPOSED THE HAND OF HIS DAUGHTER, WITHOUT HER CONSENT, WHATEVER HER AGE MAY BE, PROVIDED SHE IS STILL A VIRGIN- KITAB MINHAJ -ET-TALIBIN
7

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAW
THE CASE OF SYEDABDULLAH AL-SHATIRI v SHARIFFA SALMAH[1959] 1 MLJ 137
This was an appeal from the order of the Shariah Court declaring a marriage solemnised by the appellant between his daughter, the respondent and one Syed Idros to be void. The application to the Shariah Court was made by the father, the appellant, who gave evidence of the marriage which he solemnised as " wali mujbir" for his daughter and asked the Shariah Court to make an order that his daughter should accept the marriage as valid and go to live with her husband.
8

THE LAW

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE CASE OF SYEDABDULLAH AL-SHATIRI v SHARIFFA SALMAH[1959] 1 MLJ 137

We might add that the father did not entirely agree to the termination of the marriage. His personality was as strong, if not stronger, than his daughter's and as we have said it was he who took an active part in attempting to get the marriage registered and in insisting on the validity of the marriage. We sympathised with and understood his feelings as a father but we felt that in this case the interests of the community as a whole should take precedence over the personal feelings of the father.

SUBSTANTIVES MARRIAGE REQUIREMENTS

BUT IT IS COMMENDABLE TO CONSULT HER AS TO HER FUTURE HUSBAND -KITAB MINHAJ-ETTALIBIN

10

SUBSTANTIVES MARRIAGE REQUIREMENTS

THE LAW :

IFLA (FEDERAL TERRITORIES) ACT 1984,

S. 13 :

A MARRIAGE SHALL NOT BE RECOGNISED AND SHALL NOT BE REGISTERED UNDER THE ACT .AFTER DUE INQUIRY IN THE PRESENCE OF ALL PARTIES ...SUCH CONSENT MAY BE GIVEN ...WHERE THE WALI REFUSED HIS CONSENT WITHOUT SUFFICIENT REASON

11

SUBSTANTIVES MARRIAGE REQUIREMENTS

APPLICATION OF THE LAW :
Zira has the capacity to contract her marriage with anyone she choose.
In fact, should her paternal uncle decided to marry her with anyone without her consent, She, as in accordance with Shafii Law, may refused, as, those virgin daughters who has given in marriage, usually be made without consent, with the capacity as wali mujbir. Wali mujbir is usually, as Shafii law has indicated, the father and also the paternal grandfather of the woman.

12

SUBSTANTIVES MARRIAGE REQUIREMENTS

However, as to her case here, her paternal uncle may only be regarded as wali, not wali mujbir.
And although she is still a virgin, her paternal uncle may still consult her as to her future husband, and unless she do not consented to the marriage, only then, her uncle may not force her into marriage with anyone she dislike

13

SUBSTANTIVES MARRIAGE REQUIREMENTS

Therefore, Zira also, may apply to the court for permission of Wali Raja, in order to contract her marriage with Saif Khan, should her paternal uncle did not wanted to give her, his consent.

14

SUBSTANTIVES MARRIAGE REQUIREMENTS

The case of Hussin v Saayah & Anor : The plaintiff applied to invalidate the marriage with his daughter and defendant, where kadi declared the marriage is invalid, as to Administration Of Muslim Law Enactment Perlis 1984, if the woman to be married has no wali, or wali refuses to give his consent, consent may be obtained from wali raja. As such, as there is no evidence the wali refused to give his consent, and should the wali refused to give consent, the parties can always applied to the court to obtain for wali raja.

15

SUBSTANTIVES MARRIAGE REQUIREMENTS

Furthermore, for her paternal uncle to refuse his consent without any reasons whatsoever, will surely not a sufficient reason to refuse his consent, and if he refused as to forbid her from migrating to Pakistan and to stay in Malaysia, that also cannot be considered sufficient reason alone. Thus, Zira can still get married with Saif Khan although her uncle objected to her plans.

16

SUBSTANTIVES MARRIAGE REQUIREMENTS

REFERENCES :1) TANZIL-UR-RAHMAN - A CODE OF MUSLIM PERSONAL LAW (1978) KARACHI p.63 2) HADITH REPORTED BY AYESHA, SUNAN ABU DAWUD KITAB AL NIKAH VOL 2, P.557 3) ISLAMIC FAMILY LAW ACT (FEDERAL TERRITORIES) ACT 1984 , SECTION 8 4) HADITH FROM HISHAM BIN URWAH, SHAHIH AL BUKHARI, KITAB AL-NIKAH, VOL VII, AT p.62 5) KITAB MINHAJ-ETTALIBIN, TRANSLATED BY EC HORWARD, (1914), LONDON, at p.284 6) SYEDABDULLAH AL-SHATIRI v SHARIFFA SALMAH[1959] 1 MLJ 137 7) ISLAMIC FAMILY LAW ACT (FEDERAL TERRITORIES) ACT 1984 , SECTION 13 8) HUSSIN V SAAYAH & ANOR, (1980) 7 JH 35 17