Lecture 2 BETROTHAL IN ISLAMBETROTHAL IN

BETROTHAL IN ISLAM.pptx

1. LECTURE 2: BETROTHAL IN ISLAM FAMILY LAW I (LAW605) 1

2. 1. Introduction   In surah al Baqarah : 235 , Allah s.w.t. revealed: “There is no blame on you if you make an offer of betrothal, 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 to Him. And know that Allah is Oft-Forgiving Most Forbearing.”   2

3. In the above verse the word ‘ Khitbah ’ does not means obligatory, but it is recommendable. Betrothal is preliminary to a marriage. It is a practice of custom which does not contradict the Islamic law. According to the Islamic law maxim , custom becomes a principle of Islamic law if it does not contradict the Shariah . 3

4. In a Hadith, the Prophet s.a.w . said: “ A matter or deed which is regarded as good by Muslim community i s also good with Allah.” Therefore betrothal is recommendable in Islam and it is not a religious obligation. It is based on customary practice. 4

5. Some of the benefit of betrothal are, it strengthen family ties; and future husband and wife can know each other. However, betrothal does not grant a license for the couple to go out together without mahram since it is forbidden by the Shariah because they are not officially married. In a Hadith, the Prophet s.a.w . said that when a man and a woman meets, the third one will be the Satan. 5

6. 2. Effect of Betrothal   The effect of betrothal are as follows:- i ) It is not a legal contract; ii) Parties does not becomes husband and wife; iii) It is morally binding; and iv) No legal consequences if breach (maintenance) but only require the return of the gift (if any).    6

7. It is different from the Civil law position. In Malaysia, parties can claim under Section 10 of the Contracts Act (originated from England). However, in England since 1971 the parties can no longer claim for damages. 7

8. 3. Procedure on Betrothal a) Men can see the women (vice versa) The Prophet s.a.w . does allow the man to see the women when they want to marry. The following Hadith indicates the above ruling. i ) Al Mughirah Ibn Syu’bah proposed to a woman and the Prophet s.a.w . said to him, look at her for this is appropriate in order to ensure agreement and harmony between you.   8

9. Abu Hurairah r.h . said that I was in the company of the Allah’s Messenger when there came a man and inform that he had contracted to marry a woman of the Ansar. Thereupon, the Allah’s Messenger said: ‘Did you cast a glance at her’. He said: ‘No’. Then the Prophet said: ‘Go and cast a glance at her’. From the above Hadiths it is inferred that although it refers to man, but it is also applicable to woman. 9

10. Jabir ibn Abdullah said that the Prophet s.a.w . said: “If any one of you become engage to a woman and is able to see something of her which makes him wish to marry her then let him do so.”   10

11. 4. Conditions   The two conditions to be observe for betrothal are: 4.1 Recommendable Conditions It is recommendable to choose a woman of the following criteria as a wife: 4.1.1) Virgin woman It is related from Jabir Ibn Abdullah said that the Prophet s.a.w . said to me: ‘Did you marry?’. I said: ‘Yes’. He said: ‘Virgin or non virgin’. I said: ‘Non virgin’. He said: Why did you not marry a virgin with whom you could find enjoyment and she find enjoyment with you’. 11

12. 4.1.2 Fertile woman who can bear children Maqil b. Yasar said: ‘A man came to the Prophet s.a.w . and said: ‘I h ave found a woman of rank and beauty, but she does not give birth to children. Should I marry her? He said: ‘No’. He came to him again but he prohibited him. He came to him the third time and he (the Prophet s.a.w ) said: ‘Marry women who are loving and very prolific, for I shall outnumber the people by you’. 12

13. 4.1.3. Religious Woman Abu Hurairah r.h . reported that the Prophet s.a.w . said: ‘Women may be married f or four reasons: for her property, her rank, her beauty and her religion. So get the one who is religious and you will prosper’. 13

14. 4.2 Legal Conditions 4.2.1 At the time of the betrothal, there are no legal Impediments to the marriage between the parties. (a) The woman is not a married woman If she is a divorcee, it must not be made during iddah period of Talaq Rajie (revocable divorce). It is haram to propose because her husband can ruju ’ her back.  14

15. Talaq Bain (irrevocable divorce) iddah period 3 months Maliki and Syafie’s views said it is permissible during iddah period but by Kinayah (implicit) Hanafi’s view said its is Haram during iddah period whether Sareh or Kinayah . If a widow ( iddah period is 4 month 10 days) the proposal must be made by Kinayah (impliedly) Surah al Baqarah : 235 See Maria Tunku Sabri v Datuk Wan Johari W. Husin [2012] 7 MLJ 419 15

16. Maria Tunku Sabri v Datuk Wan Johari W. Husin [2012] 7 MLJ 419 P (TV personality) brought legal action and filed a civil suit against D (a successful businessman) claiming that he breached a contractual agreement to marry her. This was based on settlement agreement dated 10.3.2004 which was entered for purpose of settlement due to a breach of promise to marry by D to P. As a result, both parties agreed as in consideration, D pay RM 5.5M in 2 payments and P agreed not to proceed with action against D. Held: Contract is void/ invalid as P has no capacity to enter into agreement because she is at the time the contract is entered is a Muslim woman and not qualified to enter into agreement to marry during the subsistence of her marriage to lawful husband. See also section 14 (1) of IFLA. 16

17. b) Prohibited Women Prohibited woman either temporarily or permanently by ways of kindred Affinity or fosterage. 17

18. 4.2.2 The women has not been betrothed yet According to Jumhur Ulama , it is HARAM to propose for a betrothal when the w omen has been betrothed unless the first had been rejected. They based their views on the following Hadith: Abu Hurairah r.h . said that the Prophet s.a.w . said: A man should not proposed to a woman to whom his brother has proposed until he either marries her or gives up his suit. 18

19. Ukbah Ibn Nafi relates that the Prophet s.a.w . said, one believer i s the brother of another. It is not permitted for a believer to undercut the trade of his brother or to propose to a woman to whom his brother has propose until he permits it or he gives up his suit. 19

20. However the Jurists differ in certain situation regarding the following ruling: A) If the woman has not reply to the first proposal i.e. keep quiet 20

21. Syafie and Hanbali said it is permissible to propose for second p roposal based on the following Hadith: While the husband of Fatimah bt Qays divorce her three times, after which three of the Companions of the Prophet s.a.w . namely Muawiyyah , Ibn Jahm and Usamah all proposed to her at the same time. She spoke to the Prophet s.a.w . about this. The Prophet s.a.w . advised her that Muawiyyah is poor with no money/property, Ibn Jahm never put down his stick from his shoulder. So marry Usamah Ibn Zaid. From the above Hadith it is not prohibited to propose more than one person at the same time. 21

22. Hanafi and Maliki said Haram to propose by second person, although the woman does not reply to the first proposal. When a w oman keep quiet, it does not mean that she had not accepted the f irst proposal. 22

23. B) If the Proposal has been accepted by the woman Zahiri and Maliki said that the second proposal is permissible i f the second man is more religious and more compatible than the first ones. It is for the best interest of the woman. However if both the men are equally religious then the second p roposal is not permissible. 23

24. However Jumhur Ulama said that it is Haram to propose for the second proposal whether the second man is more religious or not. They based on the first two Hadiths. 24

25. 6. BREACH OF BETROTHAL In general principle, all promises made must be fulfilled. This is based on surah al-Maidah:1 “O you who believe fulfill all obligations” However, since betrothal is not a legally binding, it can be rescinded provided there is a valid reason. 25

26. What happens to the Gift? The general authority for the gift is traced in the following Hadith:- Ibn Abbas reported the Prophet s.a.w . as saying: “One who gets back the gift, is like a dog which vomits and then eats its vomit” 26

27. The views of the Jurists:-   SYAFIE Both parties must return back the gifts, in case of breach. It is immaterial whether the gift is intact or not. If the gift was consumed then the value of the gift must be returned. 27

28. HANAFI   The giver can ask for the return of the gift if the breach was by the other party, provided that the gift is still intact and not yet consume. If the gift has been consumed, it is not obligatory to return the gift. HANBALI His views is same as Syafie’s view. 28

29. MALIKI If the default is by the man, he has no right to ask back the gift. If default is by the woman, he has the right to ask back the gift. It is immaterial whether the gift is intact or not. If the gift had been consumed, then the value of the gift must be returned.   29

30. Daud S. El Alami (a contemporary jurist of Maliki)  According to him, there are two views on the gift in case of breach of betrothal: Generally, if breach is by the woman, there is no requirement to return the Gift. If the custom or the condition of the contract require to return back the gift ,t hen the gift must be returned. However, if the custom and the contract does not require so, then it depends on which party causes the breach. Then the other party will entitle for the return of the gift. 30

31. Position in Malaysia Section 15 of the IFLA (FT) 1984 provides that: Refuses to marry without lawful reason ; Only the defaulting party: must return the gifts; must pay any costs incurred (to hold the event); Actionable through Syariah Court.   31

32. Cases Aishah v. Jamaluddin (1978) 3 JH 104 Husin v. Moh (1972) 1 JH (1) 44 Salbiah Othman v. Hj Ahmad (2006) 21 JH (1) 114 Mohamad Azla bin Hj Kamaruddin v. Mokhtar bin Hashim & Anor [2007] 3 ShLR 128 Amrina Rusyada bt Mohamad Safir v. Mohamad Shukri bin Ismail (2008) 32

33. Cases Relating to Betrothal : Hussin vs. Moh (1972) The Appellant on behalf of his son sought the daughter of the Respondent. A betrothal was arranged and it was agreed that the mas kahwin should be RM500. The Respondent spent RM350.40 in preparation for the marriage. On the day of the marriage, the man sought to pay RM300 in cash and RM200 in jewellery which the Respondent refused to accept. The marriage did not take place. Respondent sued Appellant for RM350.40 and claimed for damages in preparation of marriage. The learned Kadi gave judgement in favour of Respondent and ordered Appellant to pay because the refusal was due to his fault. However, on appeal, the judgement was in favour of Appellant because the refusal of the Respondent to accept RM300 cash and jewellery worth RM200 was unreasonable.     33

34. Aisyah vs. Jamaluddin (1978) Breach of betrothal without valid reason. The woman claimed for mas kahwin of RM25, preparation for marriage of RM800 and an engagement ring. The court ordered the man to pay RM25 for mas kahwin , RM800 for preparation of marriage, RM25 for clothes and RM400 for cost of house renovation . 34

35. Salbiah Othman vs. Hj Ahmad Abd Ghani (2006) The P ( Salbiah ) has engaged to the Defendant on 28/7/2001 The date of marriage was fixed on 31/8/2001 However, the D breach the promise to marry through his representative on17/8/2001 without valid reason. Plaintiff claimed ; Damages for humiliation of RM200,000 ; and Damages for preparation of marriage RM9677.00. The court rejected the claim for humiliation. -The proper court to hear the matter is CIVIL COURT because it involves general damages-caused humiliation of Plaintiff to general public. 35

36. The Court allowed the claim of damages of RM8277.10 The damages includes expenses incur for preparation of marriage amounted to RM250. The Defendant has paid RM2000 as deposit for marriage preparation. Therefore, the court ordered the Defendant to pay the balance of RM6277.00. 36

37. Mohd Azla v Mokhtar Hashim & Anor (2007) P was ex-fiancé of D2. D1 is the father of D2. During the engagement ceremony, P presented gifts amounted to RM 10,050. P alleged that D1 had promised during the engagement, that he would pay double compensation for all the engagement gifts, if the breach was on the part of D2. D2 broke the engagement on the ground that P’s relative had made an allegation that she was not a virgin. P claimed: Compensation for breach of the betrothal (double compensation for the engagement gifts) and general damages of RM 50,000 for humiliation. 37

38. Syariah Subordinate Court ( Sepang ) allowed P’s application and order the followings: All gifts are to be return according to the agreement; and Ds have to pay RM22,500 that is double the amount of the engagement gifts. 38

39. Promise of Marriage made between a Muslim and Non-Muslim Promise made between a Muslim man and unmarried non-Muslim woman Promise made between a Muslim man and a married non-Muslim woman Read: Gan, Joo Ee , Breach of Promise of Marriage: Uncertain Legal Terrain and the Complex Contours of Shariah Law [2014] 2 MLJ i 39

40. Read also: Zulkifli Hasan, Hak-hak Wanita Islam dalam Kes Mungkir Janji untuk Berkahwin di Malaysia: Kajian Perbandingan antara Undang-undang Sivil dan Syariah , (2005) 20 JH 1 40

41. THANK YOU 41