LAA2053

AL-AHWAL AL-
SAKHSIYYAH
Blc 5

SYED MOHD NAJIB SYED OMAR

MOHD NURHUBAIDILLAH B. ABD AZIZ 1090981

NURSYAFIQAH BT AHMAD SHAARI 1090965

NURUL FATIHAH BT MOHD ASRI 1090957

The issue in this case whether Rini can claimed damages for breach of promise to marry by Azim. First we need to
know what betrothal is. Betrothal means a request by a man for the marriage of a certain woman by approaching her or to her next
of kin with a view to describe his status and to negotiate with them the subject of the contract and respective demand in that
connection. According to Dr Muhammad Abdul Rauf, it is a sort of moral binding and does not give rise to the right of alimony.
The nature of betrothal, it is not a legal contract and does not make the parties husband and wife. The prophet said ; a
man and woman never meet alone except that Satan becomes their party. Nevertheless, Iman Ahmad stated that it is a preliminary
step towards marriage. It may be omitted but it is recommended as an intermediate stage. It also takes place in accordance with the
custom followed in society.
Then, there are some reasons for betrothal, first, to provide a period of grace for the next serious stage, that the marriage.
Second, parties may be acquainted with one another before the marriage. Third, it will help together the families of the parties and
forth, the custom of exchanging gifts helps to increase respect and love for one another.
Based on Quranic verses Surah al-Baqarah 2:234-235, if any of you die and leave windows behind, they shall wait
concerning themselves four months and ten days: when they have fulfilled their them, there is no blame on you if they dispose fo
themselves in a just and reasonable manner. And Allah is well acquainted with what ye do. In addition, it was mention in hadith
reported by Uthman bin Affan saying that Rasulullah said ” A muhrim shall neither marry himself not arrange the marriage of
another nor shall make a proposal of marriage “. According to section 15 IFLA ( FT ) and section 8 of Kelantan Enactment stated
that if any person has, either orally or in writing, and either personally or through an intermediary, entered into a betrothal in
accordance with Hukum Syara’, and subsequently refuses without lawful reason to marry the other party, the other party being
willing to marry, the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and of pay whatever
moneys have been expended in good faith by or for the other party in preparation for the marriage, and the same may be recovered
by action in the court.
The consequences of the decision to breach the contract of betrothal on Quranic verse Soorah al-Maidah: 1 stated that o
you who believed, fulfill all obligation. Beside in a hadith from Umar said that “ it is not lawful for a man to make a gift and
afterward to take it back except a father regarding what he had given to his child “. There are also have jurisdiction opinion by
Hanafi, where provides that the giver could request the defaulter to return the gift which are still intact and not change their
character or being destroyed. Shafie also give his own opinion, if anyone default, both parties should return the gift or their value if
destroyed. Nevertheless Maliki stated that if the defaulter is a male, he should not ask for the return of the gift. If the defaulter is a
female, the male party could ask for the return of his gift from the woman regardless whether the gift is still in existence or not. If
the gift is no longer in existence, it has to be valued in terms of money. Nor withstanding with that opinion Dr Muhammad Abdul
Rauf ( Marriage in Islam ), if a betrothal is broken, it does not involve legal consequences, except the return of unperishable gift, if
the breach is cause by the giver. Statutory provision also provide what are the legal consequences in section 1a5 IFLA which is
party in default has to return the gift or value thereof and pay money which have been spend. It is significant to note that both
parties return the gift or defaulting party pay money as agreed in the contract. It mentioned under section 8 Kelantan Enactment.
Furthermore, in the case of Aishah v. Jamaludin, a man broke the betrothal and claimed that he did know the woman.
The woman claim the mahr, hantaran and ring. It was held that the man has to pay the said amount. In the case Haji Latif v. Nur
khatijah stated that promised to marry Khatijah who was 40 years old. She had prepared a kenduri but he did not turn up. I was
held that the man has to pay whatever money which was spent for the kenduri. Then, in the case Norlida Abdul Rahman v.
Hasmawi Hasan stated that plaintiff claimed damages of RM 25,470 from the defendant as a result of the defendant’s breach of
promise to marry the plaintiff. Plaintiff also claim that she suffered from depression due to the breach of promise to marry, it was
held that civil court has no jurisdiction to hear the case because there is a special provision regarding the matter under Enakment
Syariah Negeri Johor. We can also relay to the case Muhammad Salleh Muhammad Yusuf v Nur Diana Ahmad Zubir(6
January,BERNAMA),the plaintiff claimed RM70 000 for breach of promise to marry.Plaintiff was told vie SMS from the
defendant’s father that the marriage was called off. Besides, in the case Salbiah binti Othman v. Hj Ahmad b.Abdul Ghani stated
that the breach of promise to marry by the defendant. The issue before the court was whether the plaintiff can claim damages from
Syariah court. It was held that claim for damages was not granted. The court granted the claim of RM 6277.10 for the expresses
incurred as a result of the betrothal ceremony. Other intenses which shows that the woman can claim for damages is in the case of
Amrina Rusyada v. Mohd Syukri Ismail ( Berita Harian – 23 April 2008 ) stated plaintiff claim RM 1,724.50 for breach of promise
to marry by the defendant. The defendant cancelled the marriage without valid reason.
According this case, Azim have gift a box of chocolate, basket of fruits and diamond ring worth RM 2500. Hence ,Rini
must return back the entire gift and if that gift have destroyed, she have should paid with the value of the gift in change of their
original physical which has been eaten. But in our custom, only the ring have should be return back.
 2) Discuss the marriage prospective between Azim and Ally.

The issue in this case whether Ally and Azim cannot get married since Ally is not a Muslim. There are five conditions for the wife
in the marriage process. The conditions are muslim, not in ihram, not in iddah period, not a wife of another man and a specific woman. Based
on Quran verses Soorah Al Baqarah ,And Allah beckons by His Grace to the Garden [of Bliss] and forgiveness, and makes His Signs clear to
mankind that they may receive admonition. In addition, it was mention in hadith reported by An-Nawawi saying that “A state of ihram
whether of the guardian of the bride or bridegroom is an obstacle to the validity of marriage”.

Besides,according to the section 2 (1) IFLA (FT) kitabiyah means a woman whose ancestors were from the Bani Ya’qu; or a
Christian woman whose ancestors were Christian before the prophethood of the Prophet Muhammad or a Jewess whose ancestors were Jews
before the prophethood of the prophet Isa. It’s significant to note that no woman shall marry a non-Muslim except a kitabiyah, no woman shall
marry a non-Muslim. It was mentioned under section 10 IFLA (FT). Pertaining to section 11 of IFLA (FT), a marriage which does not fulfill
necessary conditions under Hukum Syara’ shall be void, for the validity there of are satisfied section 11 of IFLA (FT) is similar with section
11 of Kelantan Enactment. However the definition of Hukum syara’ according to section 2 (1) of Kelantan Enactment provide the Islamic law
according to the Shafii school or any one of them Malik school, Hanafi school or Hambali school.

In the case of Abdul Razak v Maria Menado if was stated that at the time of marriage, the wife was a Christian but her ancestors
were not originally Christian. They converted to Christianity after the coming of Islam. It was held that the marriage was void because at the
time of the marriage, the defendant was a Christian whose ancestors were converted to Christian after the coming of Islam.

As regard to the case since Ally is a Christian lady, she is not fulfilling the conditions for the wife in the marriage process . It is
prohibited under section 10 IFLA (FT) and will be void under section 11 because it is not according to Hukum Syara’ and Ally is not a
Muslim. So, she must convert to Islam if she wants to marry Azim.

3) Who will be Ally wali and why?

Their marriage is avoid if everything not according to Hukum Syara’. It is base of IFLA in section 11 A marriage shall be void
unlss all condition necessary, according to Hukum Syara’ for the thereof are satisfied.

Reasons for wali raja is when no have wali nasab, his whereabout is not known, adopted daughter or illegitimate child, wali mujbir
has not fulfill the conditions to be a wali, wali akrab is performing pilgrimage and wali akrab refused to be a wali without sufficient reason

For another case is Azizah bt Mat v. Mat b. Salleh (1976) 2 JH251, The womens father had several times refused to act as wali and
postoned his daughters marriage by saying, “wait till she gets a job”. The kadis court found that there was no valid reason for the fathers
refusal and held that the woman was entitled to be married through wali Raja.