Islamic Family Law - Betrothal

LAW 604 - Family Law I (Islamic) 5/12/2013
azrinhafiz/march-july 2013 1
BETROTHAL
LAW 604 – Family Law I (Islamic)
Chapter Overview
A. Whether Betrothal Exist/Practice in Islam?
B. Ceremony of Betrothal According to Custom
C. Whether Customary Practice of Betrothal is
Encouraged in Islam?
D. Status of Betrothal Agreement
E. Effect for Breach of Betrothal Agreement
F. S.15 of IFLA 1984
G. Cases
• Betrothal, also known as engagement
• Arabic term: khitbah
• Malay term: pertunangan

A. Whether Betrothal Exist/Practice In Islam?
• By virtue of al-Quran:
If any of you die and leave widows behind, they shall wait
concerning themselves four months and ten days: When they have
fulfilled dispose of themselves in a just and reasonable manner.
And Allah is well acquainted with what ye do.
There is no blame on you if ye make an offer of betrothal or hold it in
your hearts. Allah knows that ye 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 till the term prescribed is fulfilled.
And know that Allah Knoweth what is in your hearts, and take heed of
Him and know that Allah is Oft-Forgiving, Most Forbearing.
surah al-Baqarah (2): 234-235
The relevant gist of the verses:
For one whose husband dies,
must keep themselves waiting
(iddah) for four months and ten
days.
There is no wrong to make an
offer of betrothal, but do not
make a promise to them
secretly except you do it in a
legally manner.
Do not resolve on contract of
marriage until the prescribed
time is reached.
• By virtue of Hadith:
Ibnu Umar narrated that:
A person should not enter into a transaction when
his brother is already making a transaction and
he should not make a proposal (khitbah) when his
brother has already made a proposal
except when lie gives permission.
Sahih Muslim, Book 10, number 3618
Uthman bin Affan narrated that:
A Muhrim must neither marry himself, nor
arrange the marriage of another one, nor
should he make the proposal of marriage.
Sahih Muslim Book 008, Number 3278

It is haram to make a proposal of marriage to a
woman to whom a proposal has been made,
unless the first proposal has been rejected.
.: betrothal can be practiced in Islam.
B. Ceremony of Betrothal According To Custom
(Malay customary practice)
Merisik
Meminang
(betrothal)
Akad Nikah
Bersanding
To ask whether the woman is
still single or belonged to another man
Bring along a ring and tepak sireh. If
the ring is not accepted, simply means
the woman is belonged to another man
C. Whether customary practice of betrothal is
encouraged in Islam?
- As long as the customary practice is not contrary to syarak, then it can be followed.
“A matter or deed which is regarded as good by Muslims community,
is also good with Allah.”
Imam Ahmad
Parties may be
acquainted with one
another before the
marriage, then the
marriage can take
place after have seen
and assessed each
other.
Helps to bring
together the families
of parties
Encourages the
parties to give
presents to one
another and thus
helps to increase
respect and love for
one another

D. Status of Betrothal Agreement
• Whether betrothal agreement is legally binding?
In Islam, betrothal is considered as moral agreement
as it is preliminary step to marriage but does not
constitute an actual marriage.
Such agreement should not be broken without good
reason, as stated in:
“O you who believed, fulfill all obligations”
Surah al-Maidah (5): 1
• There is also a hadith saying of the Prophet to
the effect:
“Muslims are bound by their promises and the
conditions which they have agreed to.”
Hadith
A person who
breaches the
promise
Munafik
is called as
This action will be
condemned by Allah swt
and Muslims, inter se
# However, by virtue of S.15 of IFLA 1984, betrothal
is a legal contract
E. Effect for Breach of Betrothal Agreement
• According to syarak, no specific remedy.
• What if there are alimonies given?
- should it be retained or returnes?
§ Ibn Umar has donated a horse in path of Allah,
then found it being sold and he decided to buy it.
However Prophet said, “Umar, do not get back
what you have given in charity”.
Sahih Muslim Kitab al-Hibah, Vol 3, at p 858

• Ibn Abbas narrated that Prophet as saying:
„One who gets back the gift is like a dog which
vomits and then eats its vomit‟
Sahih Muslim Kitab al-Hibah, Vol 3, at p 858
If a man gives a gift
without expecting anything
Then, he should not
ask for it back
But, if he gives a gift in
return for something lawful,
which expects form a donee
Then, he can ask for
its return if the
condition for which
the gift was given is
not fulfilled
Thus the jurists have
reconciled the
abovementioned
hadiths by saying that:
Views by Imams
Hanafi
Where the gifts are still intact and has not
changed their character or been consumed or
destroyed, the giver can ask for the return of
gifts, if breach by the other party.
Maliki
If man breaches – he has no right to ask back.
If woman breaches – he has right to ask back
whether it is still exist or not; if destroyed, pay
monetary value.
Shafie
The gift should be returned whether it is exist
or not.
If the used has been used or destroyed, its
value should be returned.
F. Sect 15 of Islamic Family Law (Federal
Territories) Act 1984*
• Refused to marry without lawful reason, the
party in default will be liable to return the gift,
or the value thereof.
• The party in default also has to pay whatever
money incurred in preparation of the marriage.
*hereinafter will be referred as IFLA 1984

G. Cases
Aishah v Jamaluddin (1978)
Fact:
the man broke his promise to marry, and the woman
claimed the payment of RM25 maskahwin, RM800
marriage expenses and right to keep the engagement ring.
Held:
The learned Chief Kadi ordered accordingly and also
order the man to pay RM25 for clothes prepared for
marriage and RM400 the cost of repair of house in
preparation of marriage.
Salbiah Othman v Hj. Ahmad (2002)
Fact:
Plaintiff claimed for RM60,000 for injured
feeling and preparation of marriage including the
renovation of house for marriage
Held:
Court allowed the claimed, provided that she can
produce the receipt.
Reference
Ahmad Ibrahim (1997), Family law in Malaysia
(3rd ed), LexisNexis, Singapore.
Islamic Family Law (Federal Territories) Act
1984

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Islamic Family Law - Betrothal

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