December 2013

Part B , Question 1

Mastikah, an orphan aged 16 years, lived with her grandfather, Wan Salleh. She was betrothed to
her cousin, Qasim, aged 27 tears. However, Qasim, who is a medical practitioner in Hospital
Besar Kota Bahru, Kelantan, was interested in marrying Sarimah, a nurse at the hospital. He
informed his grandfather about it but Wan Salleh refused to break off the engagement. Two
months later, Mastikah disappeared from Wan Salleh’s house. Wan Salleh made a police report
and news about Mastikah’s disappearance were published in the newspapers.
Six months later, Wan Salleh was informed by the Malaysian police that Mastikah had
been kidnapped by a Lombok man, Marito, who then sold her to Arianto. Ariantohad married
Mastikah and she is now two months pregnant.
At the request of Wan Salleh, the Malaysian police arranged to bring Mastikah home
with the assistance of the Indonesian police.
Based on the above, consider the following:
a) Wan Salleh, as wali mujbir, wishes to annul Mastikah’s marriage to Arianto.
Explain the grounds on which he could do so.
b) Even if her grandfather failed to annul her marriage, Mastikah wants to end her marriage
to Arianto. According to Mastikah, she was in the compound of Wan Salleh’s home,
when a man approached her and handed her a piece of paper. After reading the writing on
the paper, she could not recall anything that happened. She was only conscious at the end
of the marriage ceremony. Mastikah claimed she was “pukau” and later drugged by
Marito until the day of the marriage. She further claimed that she had been drugged by
Arianto.
Discuss the status of Mastikah’s marriage.

a) The rukun and conditions for marriage are prospective husband, prospective wife, wali, two
witnesses, and sighah(ijab and qabul). The relevant condition in this question is wali in which the
grounds for Wan Salleh to annul Mastikah’s marriage to Arianto.
 A wali in marriage is defined as a person who has the right to give away a woman in
marriage. In Shafie school, wali is a pillar of nikah. Meanwhile in Hanafi school, wali is not
rukun, it is commendable. The authority relating to wali can be seen in An-Nur verse 321, “..and
marry those among you who are single and solihin of your slave and made servant…”. The
hadith relied by Shafie schools is Aishah reported that Prophet saw said that: “the marriage of a
woman who marries herself without the consent of her guardian is void. He said these three
times.
The conditions required of wali are that the person is a muslim, male, baligh, done
voluntarily and not under duress, not within ihram hajj or umrah, not fasiq and is sound mind.
There are two types of wali which are wali khas and wali ‘am. In the question, Wan Salleh is
wali mujbir which is categorised under wali khas. Wali mujbir is wali who is given power to
proceed with the marriage of his virgin daughter and refers to natural father and paternal
grandfather only.
The ground that can be raised is whether Wan Salleh can annul Mastikah’s marriage. One
of the grounds that can be raised is kuf’u or equality of status. Shafie school define kuf’u as the
similarities and differences of the status of the male and female parties. There are seven
conditions to be fulfilled, namely religion, lineage, freedom, source of income, property, age, and
secure from any embarrassment which can cause fasakh or going against the solemnisation of
marriage. In Sharie Prosecutor v Syed Abdul Qahar bin Syed Ahmad and Wirdahani bt Mohd
Noor2, the father refused to marry his daughter to one Syed Qahar on the ground of kuf’u as he
was of Syed origin. The court held that the marriage was valid upon the fulfillment of the pillars
of marriage. The reason of kuf’u forwarded by the father cannot invalidate the marriage, as it
was groundless.
Another case showed where the wali mujbir wanted to annul the marriage of his daughter
can be seen in Azizah v Mat3. The applicant engaged and intended to get married. However, her
father refuse to be her wali and the reason was that he wanted to wait until she is employed. The
court held that it was an unreasonable excuse.
Applying to the question, the issue raised is whether Wan Salleh, the wali mujbir may
annul Mastikah’s marriage. Based on the situation, he wants to annul the marriage as he wanted

1
An-Nur :32
2
Civil case No: 11006-010(1)-2003, Syariah Lower Court of Kuala Terengganu, Terengganu.
3
(1971) 2 JH 251
Mastikah to marry with Qasim and not Arianto. Therefore, if he were to annul the marriage
under the grounds of kuf’u, he must show that the marriage between Mastikah and Arianto had
not fulfilled the conditions which are religion, lineage, freedom, source of income, property,
age, and secure from any embarrassment which can cause fasakh or going against the
solemnisation of marriage. However, in this situation there are no issues relating to kuf’u in this
situation. There are no mention of any facts in the question that could be raised for the ground of
kuf’u. Therefore, applying the case of Sharie Prosecutor v Syed Abdul Qahar bin Syed Ahmad
and Wirdahani bt Mohd Noor, even though the situation is somewhat different, the principle
where the wali mujbir wishes to annul the marriage is similar to this question. This is because the
wali mujbir wants to annul the marriage based on his liking where he wants his daughter to be
married to somebody else who is Qasim. Thus, the ground for the wali mujbir to annul the
marriage under kuf’u is not allowed as it is groundless. Applying Azizah v Mat, the wishes of
wali mujbir to annul the marriage may not be granted as it is an unreasonable excuse.
In conclusion, Wan Salleh as the wali mujbir may raise this ground to annul the marriage.
However, the chances are very low as the reason to annul Mastikah’s marriage to Arianto is not
valid. If he can prove that the marriage is causing harm to Mastikah, then only he may annul the
marriage.

b) Consent from the prospective wife is one of the rukun and conditions for marriage. In this
question, the status of Mastikah’s marriage depends on the consent from her as a bride.
The consent of a woman should be taken into consideration owing to such right being
provided to her, similar to right of a man in choosing his wife to be. In a hadith “A divorced
woman (Al-Ayyim) has more right to her person than her wali and a virgin’s permission must be
asked, her permission being her silence. When the Prophet saw wanted to marry off a woman, he
went to her and said: “Such-and-such has come and proposed to you, if you do not like him, say
it out, or not, your silence is implied as consent.”4. In another case, a woman had come and
complained to the Prophet that her father had forced her to marry a man whom she disliked, and
therefore the Prophet had given her the right of Ikhtiyar(option) on whether to proceed or not
with the marriage. From the incident above, it is proven that a marriage,which is carried out
without the consent of the woman, is invalid in the eyes of the Syariah, if it causes harm to her.
As such, Ikhtiyar is allowed on whether to proceed or not with the marriage.
In Shafie school, for a virgin girl, it is commendable to obtain her consent. However, wali
mujbir can compel her to marry. As for hanafi school, if woman is major, wali must get her
consent, but if she is minor she must get consent from her wali. But she can repudiate the
marriage after she becomes major or consummate the marriage. The jumhur view is that if if
minor can by implied(smile or laugh) and if widow or divorcee must express consent. Section 13
of Islamic Family Law (Kelantan Enactment 2002)5 and Islamic Family Law (Federal
Territories) Act6 provides that a marriage shall not be recognized and shall not be registered
under this Enactment unless both parties to the marriage have consented thereto.
By applying to the question, the relevant condition here if she wants to end the marriage
with Arianto is consent from the wife. In the question, it is stated that she could not remember
anything that happened between her and Arianto. Thus, she could not remember if she had given
her consent or not to be married to Arianto. The consent of a woman should be taken into
consideration owing to such right being provided to her and Mastikah who did not remember if
she had given consent or not may amount to the marriage to be annulled. Applying the hadith to
the situation above, Mastikah may annul her marriage if she can prove to the court that the her
marriage to Arianto caused harm to her. Facts in the question also stated that she was only
conscious at the end of the marriage ceremony should be taken into consideration by the court as
Mastikah had not been aware during the marriage ceremony and this is where the condition of
consent comes in. The facts also provided that Mastikah claimed she was “pukau” and later
drugged by Marito until the day of the marriage and that she had been drugged by Arianto shows
that Mastikah have not given her consent as she was under the influence of drugs This goes to
show that Mastikah may just went along with the marriage as she was not aware of the

4
Zin, N. M., Hak, N. A., Mohd, A., & Malek, N. A. (2016). Islamic family law in Malaysia. Petaling Jaya,
Selangor, Malaysia: Thomson Reuters Malaysia.
5
Islamic Family Law (Kelantan Enactment 2002)
6
Islamic Family Law (Federal Territories) Act
happening and this is proven as she could not recall anything during the marriage. Therefore, by
virtue of Section 13 of Islamic Family Law (Kelantan Enactment 2002) and Islamic Family Law
(Federal Territories), she may be allowed to annul the marriage as it was unknown is she had
given her consent or not.
In conclusion, Mastikah must prove to court that she had not given her consent during her
marriage to Arianto. Facts such as she had been drugged during the process of marriage must be
taken into consideration by the court as she was not aware if she had given consent or not.

REFERENCES

Zin, N. M., Hak, N. A., Mohd, A., & Malek, N. A. (2016). Islamic family law in Malaysia.
Petaling Jaya, Selangor, Malaysia: Thomson Reuters Malaysia.