FACULTY OF LAW

LAW557
LEGAL RESEARCH AND METHODOLOGY

RESEARCH PROPOSAL
On
Regulating the Law Enforcement in Regards to the Prevalence
of Child Marriage in Malaysia.
Muhammad Anas Bin Baharudin
(2012472468)
Ahmad Nur Izzuddin Bin Annual
(2012690568)
Nurul Izzati Bt Ahmad Nasaruddin
(2012259222)

KUMPULAN: LAWB04N

NAME OF LECTURERS:

Madam Sivameenambihai A/P Veeriah

Research Background

Child marriage can be classified into two categories. First category is a marriage
between an underage girl and an underage boy and secondly between an underage girl
and an older man. In Malaysia, the legal age of marriage for Non-Muslims is 18. NonMuslims females under the age of 18 are permitted to marry between the age of 16 and
18 under the consent given by the Chief Minister. For Muslims, if they want to proceed
with marriage under the age of 18, they must obtain the permission of the Syariah
Court. The law stated in Section 375(g) of the Penal Code (Act 574) mention about
making sexual intercourse with a girl with or without her consent when she is less than
16 years of age an offence of statutory rape. Somehow, marital rape is not criminalized
in Malaysia.
The United Nation Declaration of the Rights of the Child (DRC) builds upon rights that
had been set forth in a League of Nations Declaration of 1924. The preamble notes that
children need special safeguards and care, including appropriate legal protection,
before as well as after birth. This declaration involves an issue of the Minimum Age
Convention 1973, the United Nation Convention of the Rights of the Child 1989. This
declaration mainly care about children and how they would socialize in the society with
their underage situation and how they being protected under the law.
The mainly highlighted nation that being criticized of their action of married their
children underage is focusing in South Asia. In South Asia, they believe that marrying
their children underage can bring a lot of benefit and wealth towards the family. There is
case where a child underage being married to an adult who is at the age of 40. The
marriage is based on the issue of poverty that raise the parents intention to married their
children at the early stage. Meanwhile, there are also country that which already taking
precautionary steps in order to prevent and starts to raise awareness about marriage
involving underage children. For example are United States of America, Yemen and also
the Country of Punjab.

Problem Statement :

1. The failure of Malaysian government to establish a uniform minimum age of marriage

and clarify that the prohibition on child marriage undermines enforcement of legal bans
on child marriage as set by the United Nation Convention.
2. Government of Malaysia has failed to recognize the high tendency of sexual offences

against girl within marriage particularly non-consensual sex which takes the form of
marital rape.
3. Marital rape does not being criminalized yet in Malaysia shows the lack of protection

given for the likelihood of the girls future in Malaysia to them since they were exposed
to severe sexual exploitation and reproductive health consequences.
4. Number of widowed and divorced cases rose in double rate from 2004 to 2013
according to statistic provided by the Syariah Judiciary Department Malaysia (JKSM)
and the Statistics Department CITATION Ear01 \l 1033 .
5. There is inconsistencies in the law relating to the child marriage as there is no provision

in law which restrict a marriage of child below 16 under in Syariah Courts as long
as there is a written permission from the Syariah Court which increased the chances of
those irresponsible persons over a girl in minor age especially those who often live in
poor, rural areas with limited access to health care information and education.
6. Child marriage prevail a gender discrimination as the most affected parties, will be the
bride girls when this issue being in dispute since young girls is severely limited to
access a formal, and even non-formal education because of domestic burdens,
childbearing, and family pressures after the marriage.
7. Child marriage is an appalling violation of human rights and robs girls of their
childhood, health, sentences them to a life of poverty and economic dependence, with
little or no education.

CITATION Ear01 \l 1033 Lyn, B. S. (2014, March 3). One divorces in Malaysia every
10 minutes.themalaymailonline.com.

8. Each pregnancy and childbirth increases the financial burden on a married girl and her
family, pushing her deeper into poverty.

Research Question

1. Should child marriage be criminalizing in Malaysia?

2. Should the restriction age being increase in order for a legal marriage?
3. Is the punishment towards the offender being increase?
4. Should marital rape be classified as an offence under the law?
5. Can a law being enacted as the guidance towards the Syariah Court to allow certain age
of underage marriage?

Objectives of the Research

1. To set and uniform the minimum age of marriage in Malaysia based on the current law
and the United Nation Convention.
2. To recognized Marital Rape as an offence under the criminal law.
3. To enact a law that will guide the Syariah Court to disallow the marriage involving
underage children.
4. To increase the awareness and prevail the gender discrimination among the marriage.
5. To raise awareness of the side effect of marriage at early age towards married child and
their families.

Literature Review

According to Merriam-webster online dictionary, underage can be define as of less

mature or legal age, in Malaysia the law that define what is a minor is the Age of
majority Act 1971 where in section where it stated that any one that reach eighteen
years old had attained the age of majority. This gives them a legal capacity to enter into
a contract and to be legally binding.
This also gives them the ability and the legal capacity to get married. However, in
Malaysia, underage marriage can be allowed depending on the circumstances. The
scholars all around the world had opposed the idea of underage marriage with various
reasoning including violation of human rights, health problems, psychological problems
and many others.
The United Nation (UN) had been playing a major player on spreading awareness in this
matter through many of its publications. It is very worrying to find out that in a leastdeveloped countries, one out of two child is to be found married

CITATION Ear01 \l 1033

. In

Malaysia, there are cases even though it is not very popular. The United Nation
Declaration of Human Rights (UNDHR) stated in article 16(2) that marriage can only
be entered into with free and full consent of the spouses. The Convention of Elimination
of all forms of Discrimination Against Women had mention on child marriage where it
stated that a women must have the same right as men to freely choose their spouses to
enter into a marriage without any forces or discrimination.

CITATION Ear01 \l 1033

In 1994,

International Conference on Population and Development had agreed on ways to

eliminate child marriage and countries including Malaysia agreed to strictly enforce that
a marriage can only be done with free and full consent of the future
spouses CITATION Ear01 \l 1033 . It can be seen that the problems with child marriage is basically
is about the rights of the child. That is why UN address the issue seriously as the child
CITATION Ear01 \l 1033 (Progress for Children: A Report on adolescents, 2012),
CITATION Ear01 \l 1033 (Women's and Children's Rights; Making the Connection,
2010)

that enters into the marriage does not have the ability to deny the marriage. The word
child marriage, underage marriage has been used interchangeably with the word early
marriage or force marriage. This is because of the age of the child, the consent given is
not free or no consent at all. CITATION Ear01 \l 1033
Child marriage also impacts the child from the psychological aspects. In Britain, it has
been observed that in many situation of self-harm or suicides of British women of south
Asian origin were thought to be linked to force marriage. In a desperate situation, these
girls decided to run away completely is the only way. This is because in the time that the
child supposed to be developing their emotion, mental, physical and other development,
their family forces them to enter a marriage. It must be remembered that during teen
age, it is the time for a person to develop everything in order to face the reality of the
world and not to be married. CITATION Ear01 \l 1033
Another aspect to look into is the potential violence s face by the child spouses. A child
as a spouse made the adult spouse to be in a state of extreme advantage and thus making
the adult spouse in a condition that the child spouse to be extremely vulnerable and
easily manipulated in many ways whether physically or mentally. It has been found that
in Egypt, 29 percent of married adolescent has been beaten by their husband and 41
percent of them were beaten during pregnancy. In another study published in the year
2000, 26 percent of reported cases of domestic violence in Jordan were committed
against wives under the age of 18. CITATION Ear01 \l 1033 This suggests that child marriage is
another many ways of violence to be inflicted onto women while the purpose of
marriage is to protect them.
Another crucial part that needs to be address is the education the child itself. It is quite
obvious that child spouse will stop their schooling whether they have a baby or not. This
CITATION Ear01 \l 1033 (International Conference on Population and Development:
Programme of Action, 1995)
CITATION Ear01 \l 1033 (Marrying too young:End Child Marriage, 2012)
CITATION Ear01 \l 1033 (Early marriage: Child Spouses, 2001)
CITATION Ear01 \l 1033 (Early marriage: Child Spouses, 2001)

is because the husband will work for the family and the need for education is no longer
vital. But this is another thing that has been the major points of why child marriage must
be stop absolutely. In todays modern world, education is no longer considered as
privilege. Education has been upgraded to be as necessities or rights. The reason of
marriage is not an excuse to exclude anyone from their rights. There are certain
countries with strict policies not to allow the student to get married while schooling. If a
student was found married, the student will simply be expel from the school. If, the
married child wanted to continue schooling, she would not be able to because the rules
and regulations of the school said so. However, the data provide by the UN suggests that
usually, child that involves in underage marriage receive a very minimum amount of
education and they did not go through any formal schooling system. CITATION Ear01 \l 1033
The issue of underage marriage in Malaysia has been something that is not new and
shocking. Based on the reports, conferences and conventions it can be seen that the
issue of underage marriage is very serious and requires attention from all part of the
society. The views of the scholars that was construct through various research has all
lean towards the same direction and almost all of academic community believes that
underage marriage will only do more harm rather than benefits. Even though, there are
many publications regarding underage marriage globally, this issue have not been
discussed academically through publication in Malaysia. If there is research on this
matter, it is not been address to the public at large in order to curb the problems.

CITATION Ear01 \l 1033 (Early marriage: Child Spouses, 2001)

Research Methodology

Research methodology is a systematic way to solve a problem. It is a science of

studying how research is to be carried out. Essentially, the procedures by which
researchers go about their work of describing, explaining and predicting phenomena are
called research methodology. It is also dened as the study of methods by which
knowledge is gained. Its aim is to give the work plan of research. The research study of
Regulating the Law Enforcement in Regards to the Prevalence of Child Marriage in
Malaysia will be applying qualitative approaches to the empirical legal research.
The reason for the qualitative method being applied is because it is more flexible and
adaptive to changing circumstances and understandings when research is conducted in
situation. Qualitative research is concerned with qualitative phenomenon involving
quality. It is non-numerical, descriptive, applies reasoning and uses words. Its aim is to
get the meaning, feeling and describe the situation. Thus, this method shall be utilized
for this research project leveraging subjective methods such as content analysis and
interview to collect substantive and relevant data. Since this project research is to
identify the gaps between the law in the book and the law in action for matters
concerning the child marriage in Malaysia, thus the most relevant to this research is the
non-doctrinal approach.
The Primary sources for this project will be the Federal Constitution focusing on Article
5-13 which concerns on human right, Law Reform (Marriage and Divorce) Act
1976
1984

CITATION

Ear01

\l

CITATION Ear01 \l 1033

1033

, and Islamic Family Law (Federal Territories) Act

, Criminal Code Procedure

CITATION Ear01 \l 1033

and Penal Code

1656 CITATION Ear01 \l 1033

and case law including :
1. Pendakwa Raya Lwn Mohamad Malek Ridhzuan Bin Che Hassan [2014] 1 MLJ363
Section 10 under subsection (21)(2) provides that No
marriage may be solemnized under thisAct where either the man is under
the age of eighteen or the woman is under the age of sixteen except where
the Syariah Judge has granted his permission in writing in certain
circumstances.
CITATION Ear01 \l 1033

2.

Aparav A/L Sathiah V Public Prosecutor[1996] MLJ 555

3.

Nor Afizal Bin Azizan V Public Prosecutor [2012] 6 MLJ 171

The Primary Data in the other hand will be Data collected from semi-structure interview
with bride girls and her families, groom boys and families, and Syariahs officer,
consultant or any authorities whos in charge with child marriage dispute. Other than
that, a survey will also be conduct to the citizen of Malaysia from the teenagers as
young as age of 16 to the adults with various place of living area in order to have a
clear cut observation for the reason why the child marriage being accept in the
community.
Secondary sources and will be digest, books, case commentary, online journals, reports
and newspaper.
This considered
1. 4 Mallal's Digest (4th Ed, Reissue) para 3213
2. 5(2) Mallal's Digest (4th Ed, 2010 Reissue) para 4336
3. Child Marriage Briefing Paper for UPR - Malaysia. (2013, July 1). . Retrieved June
13, 2014, from

http://wao.org.my/file/file/Child%20Rights%20Coalition

%20Malaysia%20UPR

CRCM_UPR%20Topical%20Briefing_Child

%20Marriage.pdf
4. Petition made by 2000 citizens of Malaysia by joint action group for gender
equality
5. Data report made by Health Ministry Reports
6. Stephen R. Arnott, Family Law: Autonomy, Standing, and Childrens Rights, 33
William Mitchell Law Review 809 (2007)
Section 8 provides that No marriage may be
solemnized under thisAct where either the man is under the age of eighteen
or the woman is under the age of sixteen except where the Syariah Judge
has granted his permission in writing in certain circumstances.
CITATION Ear01 \l 1033

CITATION Ear01 \l 1033 Section 294

CITATION Ear01 \l 1033 Section 376

7. The U.N. Declaration of the Rights of the Child comprises a Preample and ten
principles. G.A. Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N.
Doc. A/4354.

After that, a content analysis will be made. Content analysis is a method for
summarizing any form of content by counting various aspects of the content. Among the
data that shall be utilized are books, journals, articles from journals and statutes. These
data will be collected from the library and also online databases. This method is chosen
as it will enable us to analyze the criticism about the law and its effectiveness in
handling the issue. Furthermore, this research will be dealing with lot of articles and
reading materials. Thus, content analysis is necessary in order to help us to summarize
the data. This method also give us a chance to increase the understanding and
effectiveness of the law regarding child marriage in Malaysia as the social science
method can be used to illustrate the written law used in Malaysia as well as the law
govern in another countries that criminalize the child marriage .
Hence, it is concluded that non-doctrinal approaches in qualitative method is the easiest
method in order to bring the material and information already publicly known into the
legal arena.

Scope & Limitation

The scope of study in this research is about the regulation of child marriage in Malaysia.
Even though the child marriage is not a wrongful act in the Malaysian law, but there
were a lot of negative issues came within this matter. Hence, the objective of this study
is citizens of Malaysia but they were actually got some barrier in legislation scope in
order to combat the violation of human right which child brides deserve to have. In this
first exploratory phase on the issue of child marriage, we concentrate mainly on the
collection data of child marriage in Malaysia. The research is done in comparatively. We
selected a sample of written articles from a country that also involves in child marriage
such as Indian, Bangladesh, Sri Lanka, Nepal, Pakistan, Africa and United States.
Further in-depth research is clearly needed. Thus, the research is looked into the opinion
of bride girls and her families, groom boys and families, and Syariahs officer,
consultant or any authorities whos in charge with child marriage dispute and the point
of view from citizens of Malaysia as young as age 16 to the adults from various area of
living style. Moreover, the study is comparing and highlighting the scope of legislation
power given to specific authority in the matter of issuance a child marriage. As a result
this study is explorative in nature.
In the mean time, there might be some limitations during this research being
conduct. , even though quiet a number of countries is involved in this child marriage but
the scope of law made by the authority in each country also different and it cause
limited resources to gather information. The scope of law in each country is too limited
to provide a firm representation of the way child marriage shall being criminalized in
Malaysia. Since the sources are limited as only a plenty of information can be gathered
from electronic medium and books, an interview to the married child, family and
authority who give consent for the child marriage are needed. There might be
possibilities that some party of the issuance matters will be refused to be in interviewed
especially the parents of the married child.

Significance of research

This study will benefit many parts of the society mainly the future generations. This is
because this research majorly concerns on the issue of underage marriage in Malaysia.
Obviously the future generations of Malaysia are very important to guarantee a
sustainable citizen that is healthy in all forms physically, mentally or spiritually. This
research will suggest the improvement of the current law that regulates underage in
Malaysia. This is because the underage usually does not have the capacity or the ability
to avoid from being the victim of underage marriage that in usual circumstances involve
force marriage by the parents. Clearly the victims of underage marriage receive various
forms of violence mentally or physically. This research is important to highlight what
are the real situations in Malaysia and to critically analyse what are the reason behind
the underage marriage.
This research also will spread awareness throughout the society on the dangers with
underage marriage. The main reason why Malaysia still sees cases of underage marriage
even during this modernisation era is the mentality or the perception of the people.
Many of the members of the society especially the older generation usually have the
view that early or underage marriage is good and beneficial as it may curb immoral
activities among the youngsters. This perception is another thing that this research aims
to eliminate and spread the exact fact and awareness on the possible dangers.
This research also will help bodies that involves directly with the effort of protecting the
rights of a women. This research will look into certain angles that include education,
rights and health of the child that enters into an underage marriage. Government
agencies, NGOs, action centre or even political parties that actively and directly
involves with the works of protecting a womens right can surely benefit with this
research as they can obtain new perspective and views. This research is important to aid
the movement that advocates the importance of education among girls to empower them
in the future. This is because the usual case is girls that does receive proper education in
any forms will usually be a victim of underage or force marriage.
As a conclusion, it can be said that this research is very important for various reasons as
it impacts the society as a whole. The effort of empowering women in any age is a

serious matter to avoid them from being exploited by any parties whether a family
members or not. Besides, the need to protect the future generations of the country
cannot be stress enough as it is about the future of the nation itself.

Provisional Plan

Week
1
Task
Proposal Study
And Division of Works
Meeting the advisor

Library Visit

Conduct interviews
1
2
3

Underage married
couple
Parents of underage
couple
Registrar of Marriage
/ Tok Kadi

Collecting data

Analysing data

Final Touch Up

Documenting

Submission

Reference

10

11

12

4 Mallal's Digest (4th Ed, Reissue) para 3213

5(2) Mallal's Digest (4th Ed, 2010 Reissue) para 4336
Child Marriage Briefing Paper for UPR - Malaysia. (2013, July 1). . Retrieved June 13,
2014, from

http://wao.org.my/file/file/Child%20Rights%20Coalition%20Malaysia

%20UPR/CRCM UPR%20Topical%20Briefing_Child%20Marriage.pdf
Stephen R. Arnott, Family Law: Autonomy, Standing, and Childrens Rights, 33 William
Mitchell Law Review 809 (2007)
The U.N. Declaration of the Rights of the Child comprises a Preample and ten principles.
G.A. Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354.

Statute and Acts

Federal Constitution
Law Reform (Marriage and Divorce) Act 1976
Islamic Family Law (Federal Territories) Act 1984
Criminal Code Procedure (Act 593)
Penal Code

Cases
Aparav A/L Sathiah V Public Prosecutor[1996] MLJ 555
Nor Afizal Bin Azizan V Public Prosecutor [2012] 6 MLJ 171
Pendakwa Raya Lwn Mohamad Malek Ridhzuan Bin Che Hassan [2014] 1 MLJ 363