MUSLIM MARRIAGE

UIF2612 ISLAMIC FAMILY LAW

CONTENTS
Nature of marriages in Islam
Betrothal
Substantive marriage requirements

MARRIAGE IN ISLAM

Marriage in Islamic law is represented by the term nikah or

zawaj
The word "zawaj" is used in the Quran to mean a pair or a

mate. In general it refers to marriage.

It is regarded as a religious sacred covenant as it is a civil

contract legalizing sexual intercourse and the procreation of

offspring.
God has created men and women as company to one another,

so that they may procreate and live in peace and tranquillity.

In contrast of other religions that consider celibacy or

monasticism as a great virtue and a means of salvation, Islam

considers marriage as one of the most virtuous and approved
institutions.

Authorities Quran
Surah Ar-Rum 30:21 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.
Surah An-Nahl 16:72 And Allah has made for

you from yourselves mates and has made for

you from your mates sons and grandchildren
and has provided for you from the good
things.

Hadith
It was narrated by Qatadah that the Prophet

(PBUH) prohibited celibacy.

It was narrated that Abdullah said: The
Messenger of Allah said to us: O young men,
whoever among you can afford it, let him get
married, for it is more effective in lowering the
gaze and guarding chastity, and whoever
cannot then he should fast, for it will be a
restraint for him.

 A group of three men came to the houses of the

wives of the Prophet asking how the Prophet

worshipped and when they were informed about
that, they considered their worship insufficient and
said, "Where are we from the Prophet as his past
and future sins have been forgiven." Then one of
them said, "I will offer the prayer throughout the
night forever." The other said, "I will fast throughout
the year and will not break my fast." The third said,
"I will keep away from the women and will not
marry forever." The Prophet came to them and said:
"Are you the same people who said so-and-so? By
Allah, I am more submissive to Allah and more

Significant of marriage
1. A means of emotional and sexual
2.
3.
4.
5.
6.
7.

gratification
A mechanism of tension reduction
A means of legitimate procreation
Social placement
An approach to inter-family alliance and
group solidarity
An act of piety
A form of worship and obidience

Categories of marriage
1. Mandatory/obligatory, if:

The person feels badly in need of getting married

II. Feel certain that he would commit adultery in case he
does not get married
III. He has the ability required for marriage
I.

2. Commendable, if:

The person has strong will to control his sexual desire

ii. Has the ability to enter into marriage
iii. He would be just and fair to his spouse.
i.

3. Prohibited, if:
a) The person does not have the ability to get married
b) He suffered an illness that would affect the spouse and the

child
c) He is certain that he will do injustice to the spouse

4. Undesirable, if:

The person has no desire to marry

ii. He is likely to cause harm to the spouse
i.

5. Superogatory, if:

The person is sure that he can control his

desire
b. He has the ability to enter into marriage
c. He feel that marriage will not keep him
away from his devotion
a.

BETROTHAL (KHITBAH)

Definition
Means engagement or a mutual promise to

marry
Betrothal is not a legal contract. It does not
make the parties husband and wife; they are
merely affianced.
It is allowed for the parties to repudiate the
agreement, with a good and valid reason
It is usually practice according to the custom of
the people and is regarded as a preliminary step
towards marriage. Any customary practice of
betrothal which are not contrary to Islamic
principle could be accepted.

Authorities
Surah Al-Baqarah 2:234-235: If any of you die and leave

widows behind they shall wait concerning themselves 3

months and 10 days. When they have fulfilled their term,
there is no blame on you if they dispose of themselves in a
just and reasonable manner, and Allah is well acquainted
with all what you do. There is no blame on you if you make
an offer of betrothal (khitbah) or hold it in your hearts. Allah
knows that you cherish them in your hearts. But do not
make a secret contract with them except in terms
honourable nor resolve on the tie of marriage until the term
prescribed is fulfilled. And know that Allah knows what is in
your hearts and take heed of Him. And know that Allah is
Oft-Forgiving Most Forbearing.

Hadith
Ibn Umar reported that Allahs Messenger

(pbuh) said: A person shall not enter into a

transaction when his brother had already
entered into but not finalised and he should
not make a proposal (khitbah) already
made by his brother, until he permits it or
until he gives it up.

Conditions
1. There should be no impediments to the

marriage between the parties at the time

of betrothal
2. The woman is not betrothed to another
person

Impediments
1. The parties should not be forbidden to marry

whether permanent or temporary

2. It is prohibited (haram) to have a contract of
betrothal with a woman who is in the period of
iddah (waiting period) after a revocable
divorce as she is still tied to her husband and
the husband has a right to revoke the divorce
.If the divorce is irrevocable, it is prohibited to
seek betrothal with her openly during iddah as
her former husband can still seek to remarry
her.
.But if the husband has died and the woman is
in iddah of widowhood, the general view is that
she can be sought in marriage by suggestion,

It is also haram, as we have seen to make a

proposal of marriage to a woman to whom

a proposal has been made, unless the first
proposal has been rejected.

SUBSTANTIVE MARRIAGE
REQUIREMENTS

1.
2.
3.
4.
5.

According to Shafie school of law and

majority scholars, there are five
substantive requirements of a valid
marriage:
A male party (prospective husband)
A female party (prospective wife)
A wali (guardian)
2 witnesses
The pronouncement of ijab and qabul
(offer & acceptance)

CONDITIONS OF THE MALE

(HUSBAND)
i.
ii.
iii.
iv.
v.
vi.

A Muslim
Not within ihram haji or umrah
A specific man
Not having four wives
Voluntarily and not under duress
A man and not khunsa musykil (person
with two gender sex organs)

Muslim
Surah Al-Baqarah 2:221 Nor marry your girls

to unbelievers until they believe; a man slave

who believe is better than an unbeliever even
though he allures you. Unbelievers do but
beckon you to the fire but God beckons by His
Grace to the Garden of Bliss and Forgiveness,
and makes His signs clear to mankind, that
they may receive admonition.
Surah Al-Mumtahana 60:10 O you who
believe! When believing women come to you
as emigrants, test them; (though only) God
knows best their faith. Then, if you have
ascertained that they are believers, do not
return them to the unbelievers. They are not

Not within ihram haji or umrah

Hadith Uthman bin Affan narrated that

the Messenger of Allah said: A Muhrim

(one in the state of Ihram) must not
contract marriage, nor help others contract
marriage, nor get engaged to marry."
Related by Muslim.

Not Having Four Wives

Hadith narrated by Al-Harith ibn Qays al-

Asadi: I embraced Islam while I had eight

wives. So I mentioned it to the Prophet. The
Prophet said: Select four of them.

CONDITIONS OF THE WIFE

A Muslim
ii) A specific woman
iii) Not a muhrim to a prospective husband
iv) Not a wife to another person and not
within the period of iddah in connection
with that person
v) Not within ihram haji or umrah
i)

Muslim
Surah Al-Baqarah 2: 221 Do not marry

unbelieving women (idolaters) until they

believe. A slave woman who believes is better
than an unbelieving woman even though she
allure you.
Surah Al-Maidah 5:5 And (lawful for you in
marriage) are crom among the believers, and
crom among those who were given the Book
before, provided that you give them their
bridal-due, taking them in honest wedlock, and
not in debauchery, nor as secret lovecompanions

In Islam, marriage between a Muslim man

and a woman of the People of the Book

(kitabiyah) is allowed.
Kitabiyah means people who believe in
Torat (Book revealed to Moses) and Injil
(Book revealed to Isa)
In Malaysia, the jurists have adopted a
strict and restrictive definition of kitabiyah
In Abdul Razak v. Maria Menado, MLJ [1965]
xvi marriage was considered void as at
the time of the marriage the wife was a
Christian whose ancestors were converted
to Christianity after the coming of Prophet

Islamic Family Law (Federal

Territories) Act 1984
s.10(1) No man shall marry a non-Muslim

except a Kitabiyah.
s.2 : Kitabiyah means
a) a woman whose ancestors were from the
Bani Yaqub; or
b) a Christian woman whose ancestors were
Christians before the prophethood of the
Prophet Muhammad; or
c) a Jewess whose ancestors were Jews
before the prophethood of the Prophet Isa

CONDITIONS OF WALI
The word wali is taken from the Arabic

word Al-Wilayah which means the

willingness to take responsibility to manage
or to take up the authority to administer
something
Wali in a marriage is someone who
possesses or has been granted by Islamic
law the authority to perform a marriage
contract.
The wali is usually comes from the paternal
side of the bride.

Authorities
Aisyah reported that the Messenger of Allah

(pbuh) said: The marriage of a woman

who marries herself without the consent of
her guardian is void He said the words 3
times.
Hadith: The marriage of a woman who
marries without the consent of her
guardians is void.

There are several conditions required of a

Wali:
1. A Muslim
2. A man
3. Attained the age of puberty
4. Voluntarily and not under duress
5. Not within ihram haji or umrah
6. Credible person (adil)
7. Sound mind

Types Of Wali
1. Wali mujbir
2. Wali ikhtiar
3. Wali hakim/sultan

Wali Mujbir
Wali Mujbir is regarded as the perfect wali because he

has full power to endorse a marriage on behalf of

everyone under his care.
Wali Mujbir means the father or paternal
grandfather and above
A father may marry off her virgin daughter without her
consent
However, for a daughter who is widowed or divorced,
the father may not force her into a marriage unless by
a clear and undisputed permission
Authority: Hadith - A widowed woman has more
rights unto herself than her guardian and a virgin
woman is married off by his guardian.

Wali Ikhtiar
Wali Ikhtiar is a wali from Asobah guardians

related to a woman at marrying a woman

with her consent. Wali Ikhtiar include Wali
Akrab and Abaad, who are wali in the
absence of a Wali Mujbir who is either the
father or grandfather from the fathers side.
Such wali can marry off mature adult
women and does not have any authority to
force any marriage contract.

Wali Hakim / Wali Sultan

For a woman who does not have wali nasab

(from her own kinship), or has problems

with her wali, she is allowed to refer to a
Judge / King guardian (wali hakim) because
a king is a wali to those who do not have
one
Authority: Hadith Sultan is the guardian

for those who do not have a guardian

A woman who has problems with her wali

to get married will require Wali Hakim

under the following conditions:
a) Wali refuses
b) Wali disappears / lost
c) Wali for a convert
d) Wali for an illegitimate child
e) Wali for a woman who does have wali

nasab

Islamic Family Law (Federal

Territories) Act 1984
s.7 - A marriageshall be solemnized in

accordance with Hukum Syarak by

(a) the wali in the presence of the Registrar;
(b) the representative of the wali in the presence
and with the permission of the Registrar; or
(c) the Registrar as the representative of the
wali.
Where a marriage involves a woman who has no
wali from nasab in accordance with Hukum
Syarak, the marriage shall be solemnized only by
the wali Raja.

s.13 - A marriage shall not be recognized and shall not be

registered under this Act unless both parties to the marriage

have consented thereto, and either
(a) the wali of the woman has consented or
(b) the Syariah Judge having jurisdiction in the place where the
woman resides or any person generally or specially authorized
in that behalf by the Syariah Judge has, granted his consent
thereto as wali Raja in accordance with Hukum Syarak; such
consent may be given wherever there is no wali by nasab in
accordance with Hukum Syarak available to act or if the wali
cannot be found or where the wali refuses his consent without
sufficient reason.
s.18(1) Reference to and action by Syariah Judge

Cases
Ismail v Aris Fadillah & Anor (1980) 5 JH

326
Hashim v Fatimah [1977] 5 JH 106
Hussin v Saayah & Anor (1980) 7 JH 35