PART A, QUESTION 1

Shasha has agreed to marry Rahman, who is a father's choice. Gifts were exchanged
between the families. Two days before the wedding, however, Rahman eloped with
Shasha's cousin, Gayah, and they were married in Thailand.

Advise Shasha of her rights against Rahman for breach of a promise to marry.

The issue here whether Shasha has any rights upon breach of promise to marry made by
Rahman.

According to surah al-Baqarah, verse 235; There is no blame on you if you make an offer of
betrothal (khitbah) or hold it in your hand. Betrothal is a preliminary to a marriage vow.
Betrothal can take place upon the fulfilment of two conditions where at the time of betrothal,
there are no legal impediments to the marriage between the parties and also, the woman has
not been betrothed to another person.

Betrothal is not a legal contract since it does not give rise to the right of maintenance, parties
involved not yet a legally married couple and no legal consequences if there is a breach of
betrothal. However, betrothal can be breached by either one of the parties. According to surah
al-Maidah, verse 1:0 you who believe, fulfil all obligations. In the case of Maria Tunku Sabri,
no promise has been made since she is still not divorced with her husband and a breach of
promise is considered done if it was done a day before the marriage.

If there is an exchanged of gifts, according to different opinion by the scholar, gifts should be
returned. However, if the breach is by the man, he has no right to ask for the return of the gift
given by him. If the breach is by the woman, he has the right to ask for the return of the gift.

However, as according to section 15 of the IFLA, the party in default must return the gifts, if
any, or its value, and to pay whatever monies have been expended in good faith by or for the
other party in preparation for the marriage. In the case of Aishah v Jamaluddin, the man broke
promise to marry and the woman claimed the payment of RM25 mas kahwin, RM800 marriage
expenses and also claimed the right to keep the engagement ring. The learned Chief Kadi
gave judgment for the woman and ordered the man to pay damages agreed in the betrothal
agreement, and also ordered payment of Rm25 for clothes presumably prepared for the
marriage, and RM400 for the cost of repair of the house in preparation for the marriage.

By applying to the situation, if following the opinion of the scholar, since the breach of promise
is made by Rahman, Shasha entitled to ask the returns of gifts given by her to Rahman and
and Rahman is not entitled to ask for return of gifts given by him. Since the solemnization was
only two days away, all of the preparation had been made by Shasha involving a lot of money.
By virtue of section 15, Shasha is entitled to get back all of her presents given and and claimed
all the expenses incurred during the preparation for the solemnization.

In conclusion, Shasha has the right to claimed back all the expenses she had spend for the
solemnization against Rahman for breach of promise to marry.
PART A, QUESTION 2

Imran, Aishah's husband, has been convicted under section 9 the Shariah Criminal
Offences (Selangor) Enactment insulting and ridiculing verses of the Quran and Hadith.
He has been found guilty and has been imposed a fine of five thousand ringgit and
three years imprisonment. Imran has been imprisoned since last year.

Advise Aisyah on her right to divorce.

The issue here is whether Aisyah can seek for divorce under fasakh.

According to Surah al-Baqarah, verse 231; When you divorce women and they fulfill the terms
of their iddah either take them back on equitable terms or set them free on equitable terms.
But do not take them back to injure them or take undue advantage. If anyone does that, he
wrongs his own soul. Meanwhile, from the Hadith, Abu Hurairah reported that the Prophet
SAW said regarding a person who does not possess anything to enable him to give
maintenance to his wife, they can both dissolve their marriage.

Fasakh means annul, rescind or abrogate. Under section 2, fasakh means the annulment of
a marriage by reason of any circumstances permitted by Islamic Law in accordance with
section 52. Section 52(1) states that, a woman or man shall be entitled to obtain an order for
fasakh on any or more of the grounds of; whereabouts of the spouse is unknown, the husband
neglected his responsibility for the wife for more than three months, one of the spouse has
been sentence to imprisonment for a period of three years, failed to perform marital
obligations, the husband is impotent, insane, been treated with cruelty, marriage that has not
been consummated after four months and lastly, marriage without consent of the wife.

In the case of Kalthom v Ismail, the wife claimed fasakh against her husband alleging that he
had abandoned her for over a year with his whereabouts unknown to her, that he had
neglected to pay for her maintenance for over three months and that the husband had failed
to perform his marital marriage for over a year. The court ordered judgment in favour of the
wife and allowed her application for fasakh.

By applying to this case, Aisyah can seek divorce under fasakh since the situation of her
husband been sentenced to imprisonment falls under one of the grounds that is mentioned by
section 52. The requirement of section 52(1)(c) and section 52(2) is that the imprisonment
must be at least three years and the sentence is final and has already served one year of the
sentence. Aisyah's situation fulfilled all of the requirement where her husband has been found
guilty, indicated that the sentence of three years imprisonment and a fine of RM5000 is final.
Aisyah also only went to seek advice on her divorce under fasakh when her husband already
served a year of the sentence out of the total of three years. This gives her a rights to seek
divorce under section 52.

In conclusion, Aisyah has her rights to seek divorce under fasakh by virtue of section 52(1)(c)
of the Islamic Family Law Act.
PART A, QUESTION 3

According to Hukum Syarak, explain the conditions required to be appointed as a

witness in a Muslim marriage.

According to the Shafii school of thought, there are 5 requirements in solemnization of

marriage such as presence of male part, presence of female party, a wali, presence of two
witnesses and the pronouncement of hijab and kabul. Section 11 of Islamic Family Law
(Federal Territories) Act 1984, a marriage shall be void unless all the conditions necessary,
according to Hukum Syarak, for the validity of the marriage are satisfied.

The requirement of witnesses has been specified in Al-Baqarah, verse 282 stated that
"…and bring to witness two witnesses from among your men. And if there are not two men
available, then a man and two women from those whom you accept as witnesses so that if
one of the women errs, then the other can remind her". According to Hadith which reported by
Imam Ahmad that the Prophet SAW said “there is no marriage except where there is a wali
and two witnesses who are adil. Otherwise the marriage will be invalid.” In Hadis of the Prophet
SAW, reported by Ibn Abbas,the Prophet said that the fornicatress are those who marry by
themselves without witnesses.

The Shafii school of thought prescribed that there must be a two male witnesses in
presence. Section 22(2) of the IFLA stated that the entry of the marriage in the Marriage
Register shall be attested to by the parties to the marriage, by the wali, and by two witnesses
other than the Registrar, present at the time the marriage is solemnized.

According to Kelantan IFLE, in Fourth Schedule, there are several conditions required
of witnesses. Firstly, the witnesses must not be less than two persons. Secondly, he must be
persons of sound mind. Thirdly, he must be past the age of puberty (baligh). Fourthly, he must
be a male. Fifthly, he must be persons who can hear, see and speak. Then, he must
understand the requirements of ijab and qabul and lastly, he must be just during his presence
in solemnization.
PART A, QUESTION 4

"You are never able to be fair and just as between women, even if it is your ardent desire
but turn not away from a woman altogether as so to leave as if hanging in the air. If you
come to a friendly understanding and practice self-restrain, God is most forgiving. Most
merciful."

Surah An-Nisa (4) :129

Explain the concept of justice in relation to a polygamous marriage.

Under Islamic law, a man is permitted to marry more than one wife up to a maximum
of four provided that he is able to treat his wives with equity. Polygamy was revealed after the
effects of wars of Islam left countless Muslim girls to be orphans and women to be widows.
Thus, polygamy was adopted to encourage social justice. For example, to prevent the orphan
girls and widows from being unjustly dealt with. The Prophet SAW practiced polygamy to
strengthen the preaching of Islam and to provide protection to widows of the war.

In Surah An-Nisa, verse 3 stated that "….and if you fear that you will not deal justly
with the orphan girls, then marry those of your choice, two or three or four. But if you fear that
you will not be just, then marry only one or those your right hand possesses. That is more
suitable to prevent you from committing injustice." This verse does not render polygamy a
compulsory act for all Muslim men. It is merely permissible due to public interest.

Shafii interpreted Surah An-Nisa, verse 129 which means that you may not cause the
wives to suffer in their livelihood. The word 'just' in both ayat is a main requirement, but it does
not indicate feelings. It encompasses maintenance, shelter, clothing, food and social
relationships.

Imam Malik reported that the Prophet SAW told Ghailan bin Ummayyah Attsagafi who
embraced Islam when he had ten wives and the Prophet SAW said that he should choose four
of them and divorce the rest.

The concept of justice in polygamous marriage can be seen in a situation that

polygamous is the best solution for husband that married with a wife who suffers from serious
illnesses, a wife who cannot bear children, wife is unsound mind, old age and cannot look after
her family and children. Also in a situation when the wife is having bad character and cannot
be changed.

In the case of Sharif Jamaluddin v Kuning Jasman, the wife refused to give her consent
for her husband’s application for polygamy, and said that she would request for a divorce if
her husband proceeded with it. The husband refused to divorce her as he still loved her. The
wife had been sick for almost 17 years, and since then they have not had any marital
relationship. The court allowed the husband’s application, taking into consideration that the
couple have had no martial relationship ever since the wife was sick 17 years ago. Thus, the
husband was ordered to pay the total of RM1500 monthly as maintenance for the wife and
children.

Justice can be seen as in conditions for polygamy. Firstly, the man must do equal
justice as humanly possible, that is provide equitable treatment. Secondly, he must perform
polygamy in good faith and thirdly, he is permitted to only have four wives at a time.

Then, the concept of justice in polygamous marriage that practice in Islam ia also in
accordance with the Syariah law in Malaysia. According to Section 23(1) of IFLA, a man must
obtain prior written permission from the Court. In Section 23(3), an application for permission
must be submitted to the Court accompanied by an iqrar stating several grounds.

Firstly, which the marriage is considered just or necessary. Secondly, the present
income of the applicant. Thirdly, he must stating particular of his commitments, financial
obligations and liabilities. Fourthly, the number of his dependants, including his future
dependants as a result of the proposed marriage and whether the consent or views of the
existing wife or wives have been obtained

The Court will summon the relevant parties for information and will only grant the
permission applied for if it is satisfied all conditions in Section 23(4)(a),(b),(c), and (d). Firstly,
the proposed marriage is just or necessary. For example, it is necessary for polygamy, if the
aim is to avoid zina. In term of being 'just', the husband must provide maintenance such as
shelter, clothes, food and others.

Secondly, the applicant/husband has the means to enable him to support, as required
by Hukum Syarak, all his wives, dependants and future dependants. In the case Ruzaini v
Nurhafizah, although the husband acquired a consensus from the wife to marry another, the
court did not approve the case because it had doubts on the husband’s capability to be fair to
both wives and dependants after it was proven that the husband had insufficient means to
support more than one wife.

Thirdly, the applicant would be able to accord equal treatment to all his wives as
required by Hukum Syarak. The proposed marriage would not cause darar syarie to the
existing wife or wives. Section 2 defines darar syarie as harm affecting a wife in respect of
religion, life, body, mind, dignity or property.

As conclusion, all conditions in Section 23(4) must be satisfied, in order for a man to
practice polygamous marriage.
PART A, QUESTION 5

When Karim married Timah he uttered the ta'liq. Four months ago, Karim was dismissed
from his job. Timah works as a saleswoman at supermarket nearby. One day, she came
home late and found a young woman in the house with Karim. They had a heated
argument and Karim assaulted Timah. Karim has since left house and not return.

Advise Timah whether she can seek a divorce.

The issue is whether Timah can seek a divorce due to ta'liq uttered by Karim.

Ta’liq or conditional or delegated divorce, is another way of divorce where the wife
includes a condition in her marriage contract that allows her to divorce on her own initiative
under certain specific circumstances. A divorce that takes place upon fulfillment of the
conditions or promise. Whoever pronounces a ta’liq providing for divorce on some condition
and such condition takes place, a divorce will be effected in accordance with the
pronouncement. The Prophet SAW said that a believer is bound by his agreement, except an
agreement to make lawful what is unlawful and to make unlawful what is lawful.

There are two types of ta'liq. Mudhaf is when stipulation related to time. Muallaq is
when stipulation related to spouse’s action

Section 22(1) of IFLA stated that after the solemnization of the marriage, the Registrar
shall issue a ta’liq certificate in the prescribed form to each of the parties to the marriage. The
conditions are the husband had leave his wife for four or more continuous months without
maintenance and cause hurt to her person

Section 50(1) stated that the wife is entitled to a divorce in pursuance of the terms of
a ta’liq certificate made upon a marriage apply to the court to declare that such divorce has
taken place. The wife must prove that the divorce had indeed taken place by two male
witnesses.

Applying the law to the issue, the type of ta'liq as based on Karim and Timah situation
is Muallaq. At the time when Timah came home late and found a young woman in the house
with Karim ad they had a heated argument and Karim assaulted Timah. Thus, it is stipulation
related to spouse's action. Karim divorced Timah upon the commission of the certain act.

By virtue of Section 22(1), since then Karim has since left house and not return, the
Registrar will issue a ta’liq certificate in the prescribed form to Timah and Karim's marriage.
Following the conditions, Timah need to determine whether Karim has left her for four or more
months without maintenance and whether Karim has caused hurt to her.

Then, in applying Section 50(1) in this situation, Timah is entitled to a divorce in

pursuance of the terms of a ta’liq certificate made upon a marriage. Then, the court will declare
that such divorce has taken place. However, Timah must prove that the divorce had indeed
taken place by two male witnesses

As conclusion, Timah can seek a divorce due to ta'liq uttered by Karim if the condition
under Section 22(1) is fulfilled and the requirement under Section 50(1) is satisfied.
PART B, QUESTION 1(a)

Taufik married Melissa ten years ago. Melissa worked as a receptionist at Mega
Cosmetics Sdn. Bhd. Taufik divorced his wife, after she caught of committing khalwat
in a hotel room with Azman, the general manager of the company, the night the
company held its annual dinner.

With reference to above facts,discuss the following:

(a) Melissa's right to maintenance and mutaah, if any.

The issue here is whether Melissa has any rights to maintenance and mutaah.

According to at-Talaq, verse 6; let the woman live in iddah in the same style as you live
according to your means, annoy them not so as to restrict them. And if they carry life in their
wombs then spend your substance on them until they deliver their burden. Upon divorce, the
wife is entitle to maintenance for the period of iddah.

By virtue of section 65(1), the right of a divorced wife to receive maintenance from her former
husband ceases on the expiry of the period of iddah or on the wife being nusyuz. Nusyuz
means a bad behaviour of a wife towards her husband such as leaving home without
permission, no consummation when asked, not keeping secrets of their personal matter or
any other example of persistent breach of marital obligations. In the case of Piah v Che Lah,
the wife was not entitled to maintenance as she had been nusyuz for having left the
matrimonial home without the permission of the husband and without reasonable cause.

The amount of maintenance depends on the standard of living of the parties. However, either
a wife is entitle or not for the maintenance during iddah period depends on the type of divorce.
For talaq raj'i, it is compulsory for the husband to maintain the wife throughout the period of
iddah but for talaq ba'in, the wife has no right to maintenance upon an irrevocable divorce but
only entitle to right of accomodation. Plus, if the marriage has not been consummated, there
is no period of iddah, thus the wife is not entitle for the maintenance.

By applying to the situation, Melissa is entitled for her maintenance during iddah period.
Although Melissa had been caught for committing khalwat. This is because commiting khalwat
is not one of the grounds of being nusyuz. Hence, Melissa is entitled for the maintenance by
virtue of section 65(1). Moreover, it can be concluded that the type of divorce encountered by
Taufik is talaq Raj'i where he and Melissa were not involved in any situation under talaq Ba'in
such as Khul' or Fasakh. Hence, it is compulsory for Taufik to maintain Melissa until the period
of iddah lapse.

The second issue is whether Melissa has any rights for mutaah
According to surah al-Baqarah, verse 241; For divorce women, mutaah should be provided
on a reasonable scale. This is a duty upon a righteous. Section 2 states that mutaah is a
consolatory gift that is reasonable according to Hukum Syarak, given to a divorced wife.
Meanwhile, section 56 states that a woman who has been divorced without just cause by her
husband may apply to the court for mutaah and the court may order the husband to pay a sum
that is fair and just according to Hukum Syarak.

Mutaah is is payable in all cases of divorce except where the husband has obtained fasakh
due to a fault of the wife, where the wife has obtained fasakh due to a fault of the husband
and either or both of them become murtad. Mutaah is meant to console the wife and remove
any cause of accusation or shame which may arise from the divorce and also to lighten the
wife's burden and help her face the difficulties caused by the separation from the husband
whom she had depended on for maintenance.

Amount of mutaah depends on the mutual agreement of the parties. However, if the
agreement cannot be reached, it will be decided by the court. According to surah al-Baqarah,
verse 236; ...the wealthy according to his means and the poor according to his means. In the
case of Noor Beev Ahmad Sanusi, the Kadi will consider their financial position, position and
circumstances of the wife and the family status.

In the point of view of the Shafii, mutaah shall be paid to the wife where in a divorce before
consummation, she had not received any mahr, whether the divorce was through talaq Raj'i
or Ba'in upon a divorce after consummation and where the dissolution of marriage was not
due to the wife's fault. In the case of Tg Anum Zahrah v Dato Dr Hussein, the wife claimed for
mutaah after the divorce. It was found by the court that the husband was the one who effected
the divorce and there was no evidence to prove that the wife had been nusyuz. The husband
was ordered to pay RMM25,200 for mutaah.

By applying to the situation, the divorce was effected by the husband, Taufik once he knew
Melissa was caught committing khalwat. Instead of ask her to repent and never repeat the
same mistake, Taufik decided to divorce her. Since khalwat is not under the ground of nusyuz,
Melissa is entitled for the mutaah. Mutaah should be a consideration for Melissa since she is
just a receptionist, indicating that she depends economically on her husband and mutaah may
lighten her burden during the difficulties due to the separation.

In conclusion, Melissa is entitled for maintenance during iddah and mutaah on the reason that
she was not being nusyuz and the divorce is effected by her husband.
PART B, QUESTION 1(b)

(b) During their marriage, Taufik and Melissa have three children. Their eldest daughter,
Ain is seven years old; their son, Danial, is five years old and their youngest child,
Linda, is three years old. Since Melissa's parents death, Taufik has custody of all
children. Last month, Taufik married his cousin, Siti Aishah.

On completion of her iddah period, Melissa married Azman and she wants to apply for custody
of the three children.

As Shariah judge, decide whether Melissa could be given custody of the children.

The issue here is whether Melissa is entitled to has the custody of her children.

Hadhanah means upbringing. According to Maliki, hadhanah is to care for the child in his own
house, his coming and going, and to be responsible for his interest. Hadith mentioned that
Abdullah Ibn Amr reported that a woman complained to the Prophet SAW, "messenger of
Allah my womb was a resting place for this son of mine, my breaast a drinking place for him
and my lap a soothing p;ace for him, but his father divorced me and wishes to take him away
from me". Prophet SAW replied "you have more right to take him till you marry someone else".
Section 8(1) states that the mother shall be the best entitled to the custody of her infant during
the connubial relationship as well as after its dissolution.

Section 81(2) states that if the mother is disqualified under the hukum Syarak from having the
right to hadhanah of her children, such right, subject to subsection (3) shall pass to one of the
persons in the subsection (a)-(i), provided that the custody did not affect the welfare of the
child. Section 81(3) mentioned that no man shall have a right to the custody of a female child
unless he is a muhrim in that he stands within the prohibited degrees of relationship.
Meanwhile, section 81(4) mentioned that custody shall be entrusted to the most virtuous
person, who shows the greatest tenderness to the child, where all are equally virtuous, the
eldest among them shall have priority.

However, the rights of hadhanah can be ceased as what had been stipulated by section 83
where the wife may lost it if she marry a person that is not related to the child within the
prohibited degree but it will revert back if the marriage is dissolved, by her gross and open
immorality, changing residence to avoid the father from seeing his child, by her abjuration of
Islam and by neglecting or being cruel to the child. In the case of Kamarudin v Rosnah, where
the mother had remarried a man not muhrim to the children, she had thus, lost her right to the
custody of the younger children. The Kadi also considered the welfare of the children and held
that the mother was working, it was better in such circumstances that the child were under the
care of their father, who had not remarried.
By applying to the situation, rights of custody of her children aged 7,5 and 3 years old
respectively shall not be given to Melissa since she had lost the right when she decided to get
married with Azman. This is by what had been stated in section 83(a) where marriage with
person that is not related to the child within the prohibited degrees if her custody will affect the
welfare of the child. Hence, Melissa has lost her rights to the custody. This is because the
children is better to be raised by an unmarried woman, however, if the woman remarried, the
custody shall switch to the father that is still unmarried. In this case, Taufik has remarried his
cousin but it would not affecting the situation since his new wife must be someone who is
familiar to the children instead of Azman, an outsider who is caught committing khalwat with
Melissa. since from the very beginning, the children stayed with Taufik, so it is much better for
the welfare of the children to stay with Taufik.

In conclusion, Melissa would not be entitled to get the custody of her children.
PART B, QUESTION 2(a)

When Mizan studied in New Zealand, he met and befriend a girl named Elizabeth Wilson,
a Christian. Five years after his return to Malaysia, Elizabeth was offered and given a
post in a company in Kuala Lumpur, Malaysia. Mizan has approached Elizabeth who
has agreed to be his wife. Mizan knows that Elizabeth is not a Kitabiyyah.

Both Mizan and Elizabeth seek your advice as to what she needs to do to marry Mizan
qnd who is to be the wali to Elizabeth.

The issue is whether Mizan can marry Elizabeth and who is the possible person to be
her wali.

Marriage is considered a religious obligation in Islam. According to Surah An-Nur,

verse 32, Allah said that "…and marry the unmarried among you and the righteous among
your male slaves and female slaves. In Surah Ar-Rum, verse 21, Allah said that "…and
amongst His signs is that He created for you spouses from among yourselves that you may
dwell in tranquility with them…"

According to a Hadith reported by Ibn Abbas, Prophet SAW said “when one is married,
he secures half of his religion. So let him fear God in the other half.” Anas bin Malik reported
that the Prophet SAW said “marriage is my Sunnah, whoever keeps away from my Sunnah,
he is not among me.”

Nikah means joining together or tiding together. A marriage or a contract legalising the
relationship between a man and a woman. In the case of Khurshidi Bibi v Muhammad Amin,
marriage among Muslims is not a sacrament, but is in the nature of a civil contract. Such a
contract undoubtedly has spiritual and moral overtones and undertones, but legally, in
essence, it remains a contract between the parties which can be the subject of dissolution for
good cause.

According to the Shafii school of thought, there are 5 requirements of a marriage.

Firstly, a male party. Secondly, a female party. Thirdly, the presence of a wali. Fourthly,
presence of two witnesses. Fifthly, the pronouncement of ijab and qabul.
 Section 11 of the IFLA, a marriage shall be void unless all the conditions necessary,
according to Hukum Syarak, for the validity of the marriage are satisfied.

Focusing on the second requirement, there are several conditions of the wife. Firstly,
she must be a Muslim. According to Surah Al-Baqarah, verse 221 where Allah forbidden a
man to marry unbelieving women until they believe. Secondly, it must be a specific woman.
Thirdly, the woman must not be a wife to another person and not be within her period of iddah
in connection with that person. According to Surah Al-Baqarah, ayat 235, it is forbidden to
marry a woman before she her iddah period. Fourthly, the woman must not be within ihram
haji or umrah and lastly, she must not be a muhrim (forbidden to marry) to the prospective
husband.

In Surah Al-Maidah, verse 5, Allah said that "it is lawful to you in marriage are not only
chaste women who are believers but chaste women among the people of the Book revealed
before your time – when you give them their dowers and desire chastity not lewdness nor
secret intrigue."

Section 2 of IFLA defines ‘Kitabiyah’ as woman whose ancestors were from the Bani
Ya’qub, or a Christian woman whose ancestors were Christians before the prophethood of
Prophet Muhammad, or a Jewess whose ancestors were Jews before the prophethood of
Prophet Isa.

For the third requirement of marriage, there must be a consent of wali. According to a
Hadith, Aishah reported that Prophet SAW said, the marriage of a woman who marries herself
without the consent of her guardian is void. There is no marriage contract except that
contracted by a guardian and the one who has no guardian has the ruler as guardian. In Shafii
school of thought, consent of marriage of a woman should be given through her wali or
guardian. Only a wali mujbir can give away a girl who has not attained puberty in marriage.

Section 7(1) stated that a marriage shall be solemnized by the wali in the presence of
the Registrar. the representative of the wali in the presence and with permission of the
Registrar, or he Registrar as the representative of the wali. In Section 7(2), where a woman
has no wali from nasab in accordance with Hukum Syarak, the marriage may be solemnised
only by the wali Raja. Section 2, defined Wali Raja as a wali that authorised by the YDPA or
by the Ruler to give away in marriage a woman who has no wali nasab. According to Kelantan
IFLE, Fourth Schedule, reasons for transfer from wali nasab is when wali nasab is not
available lives two marhalah away or more, the whereabouts of the wali nasab is unknown,
wali aqrab refuses to be the wali and he is within ihram haji or umrah.

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

In the case of Azizah Mat v Mat Salleh, the applicant was engaged and intended to be married.
However, her father refused to be her wali on the ground that he wanted her to wait until she
was employed. Court held that it was an unreasonable excuse, thus, her application for a wali
Raja was allowed.

Applying the law to the issue, the situation is Mizan want to marry Elizabeth. They
must fulfill the condition of marriage as according to the Shafii school of thought, there are 5
requirements of a marriage. Firstly, a male party. Secondly, a female party. Thirdly, the
presence of a wali. Fourthly, presence of two witnesses. Fifthly, the pronouncement of ijab
and qabul.

The first requirement of a female part is, she must be a Muslim woman. As Elizabeth
is not a muslim, so she need to convert to Islam by pronuncing syahadah. According to Surah
Al-Baqarah, verse 221 where Allah forbidden a man to marry unbelieving women until they
believe. After Elizabeth become a Muslim, Mizan can marry her. Secondly, it must be a specific
woman. Thirdly, Elizabeth is not a wife to another person and not be within her period of iddah
in connection with that person. According to Surah Al-Baqarah, ayat 235, it is forbidden to
marry a woman before she her iddah period. Fourthly, Elizabeth is not within ihram haji or
umrah and lastly, she must not be a muhrim to the Mizan, her prospective husband.

For the condition where there must be a consent of wali. According to a Hadith, Aishah
reported that Prophet SAW said, the marriage of a woman who marries herself without the
consent of her guardian is void. As Elizabeth’s family is non-muslim, herr guardian or her
father cannot be her wali mujibir.

Thus, according to Section 7(2), as Elizabeth has no wali from nasab in accordance
with Hukum Syarak, the marriage may be solemnised only by the wali Raja. Section 2, defined
Wali Raja as a wali that authorised by the YDPA or by the Ruler to give away in marriage a
woman who has no wali nasab. According to Kelantan IFLE, Fourth Schedule, reasons for
transfer from wali nasab is when wali nasab is not available as her father is not Muslim. So
Elizabeth need to appoint Wali Raja to solemnized their marriage.

As conclusion, the 5 conditions of marriage has been prove and all requirements has
been done, yhus the marriage between Elizabeth and Mizan is a valid marriage.
PART B, QUESTION 2(b)

Azman, aged 21 years, a mechanic, has fallen in love with Bedah, aged 15 years, who
works as waitress at her father’s restaurant. Azman has approached the family for her
hand in marriage. The father agreed to Azman’s proposal.

Advise Azman on the procedure of marriage.

The issue is on what procedure that Aiman can marry Bedah as she is a minor.

Marriage is considered a religious obligation in Islam. According to Surah An-Nur,

verse 32, Allah said that "…and marry the unmarried among you and the righteous among
your male slaves and female slaves. In Surah Ar-Rum, verse 21, Allah said that "…and
amongst His signs is that He created for you spouses from among yourselves that you may
dwell in tranquility with them…"

According to a Hadith reported by Ibn Abbas, Prophet SAW said “when one is married,
he secures half of his religion. So let him fear God in the other half.” Anas bin Malik reported
that the Prophet SAW said “marriage is my Sunnah, whoever keeps away from my Sunnah,
he is not among me.”

Nikah means joining together or tiding together. A marriage or a contract legalising the
relationship between a man and a woman. In the case of Khurshidi Bibi v Muhammad Amin,
marriage among Muslims is not a sacrament, but is in the nature of a civil contract. Such a
contract undoubtedly has spiritual and moral overtones and undertones, but legally, in
essence, it remains a contract between the parties which can be the subject of dissolution for
good cause.

According to the Shafii school of thought, there are 5 requirements of a marriage.

Firstly, a male party. Secondly, a female party. Thirdly, the presence of a wali. Fourthly,
presence of two witnesses. Fifthly, the pronouncement of ijab and qabul.

Section 11 of the IFLA, a marriage shall be void unless all the conditions necessary,
according to Hukum Syarak, for the validity of the marriage are satisfied.
 Focusing on the second requirement, there are several conditions of the wife. Firstly,
she must be a Muslim. According to Surah Al-Baqarah, verse 221 where Allah forbidden a
man to marry unbelieving women until they believe. Secondly, it must be a specific woman.
Thirdly, the woman must not be a wife to another person and not be within her period of iddah
in connection with that person. According to Surah Al-Baqarah, ayat 235, it is forbidden to
marry a woman before she her iddah period. Fourthly, the woman must not be within ihram
haji or umrah and lastly, she must not be a muhrim (forbidden to marry) to the prospective
husband.

According to Surah An-Nisa, verse 6, Allah said that, make trial of orphans until they
reach the age of marriage; if then you find sound judgment in them release the property to
them. According to a Hadith, Aishah reported that the Prophet married me when I was six
years old and I was admitted to his house at the age of nine. Section 8 of IFLA stated that,
there is no marriage may be solemnized where the man is under the age of eighteen or the
woman is under the age of sixteen. The Sunni schools of thought take the view that it is the
age of puberty which determines the capacity to marry.

According to Shafii school of thought, The age of majority of both, a boy and girl, is 15. Ibn
Shubruma, Uthman al-Batti and Abu Bakar Al-Asamm: Denied the validity of any guardianship
in marriage over those who have not reached puberty on the grounds that the basis of
guardianship is the benefit of the ward (dependant) and that there is no benefit in marriage
before puberty.

For the third requirement of marriage, there must be a consent of wali. According to a
Hadith, Aishah reported that Prophet SAW said, the marriage of a woman who marries herself
without the consent of her guardian is void. There is no marriage contract except that
contracted by a guardian and the one who has no guardian has the ruler as guardian. In Shafii
school of thought, consent of marriage of a woman should be given through her wali or
guardian.

Section 13 of IFLA stated that marriage shall not be recognized and shall not be registered
unless both parties to the marriage have consented, and either the wali of the woman has
consented, or the Syariah judge has granted his consent to the wali Raja to solemnize the
marriage.

The Shafii school of thought stated that a consent of the bride is required except in cases
where a virgin girl is given in marriage by a wali mujbir which are her father or paternal
grandfather. A father may dispose the hand of his daughter as he pleases without asking

her consent provided that she is still a virgin.

However in Section 13 of Kelantan IFLE, the marriage of a virgin may be solemnised without
her

consent by the wali mujbir, if the wali mujbir or the prospective husband is not hostile to her,
the prospective husband is of the same status as her, the prospective husband is able to pay
a reasonable mas kahwin.

Where a father disposes of the hand of his virgin daughter, whether minor or adult, in favour
of a man of inferior condition without obtaining her consent, the contract is valid unless the
woman applies for its cancellation. Her formal consent to the marriage is necessary if she has
already lost her virginity.

Applying the law to the issue, in the situation, Azman aged 21 years want to marry
Bedah who is a minor. According to the Shafii school of thought, they must fulfill all 5
requirements of a marriage. Firstly, a male party. Secondly, a female party. Thirdly, the
presence of a wali. Fourthly, presence of two witnesses. Fifthly, the pronouncement of ijab
and qabul.

Section 11 of the IFLA, a marriage shall be void unless all the conditions necessary,
according to Hukum Syarak, for the validity of the marriage are satisfied.

Focusing on the second requirement, there are several conditions of the wife. Firstly,
Bedah must be a Muslim. According to Surah Al-Baqarah, verse 221 where Allah forbidden a
man to marry unbelieving women until they believe. Secondly, it must be a specific woman.
Thirdly, Bedah must not be a wife to another person and not be within her period of iddah in
connection with that person. According to Surah Al-Baqarah, ayat 235, it is forbidden to marry
a woman before she her iddah period. Fourthly, Bedah must not be within ihram haji or umrah
and lastly, she must not be a muhrim (forbidden to marry) to the prospective husband.

According to Surah An-Nisa, verse 6, Allah said that, make trial of orphans until they
reach the age of marriage; if then you find sound judgment in them release the property to
them. Applying Surah An-Nisa, verse 6 in Bedah situation, Bedah does not attain the age of
marriage as by virtue of Section 8 of IFLA stated that, there is no marriage may be solemnized
where the man is under the age of eighteen or the woman is under the age of sixteen. The
Sunni schools of thought take the view that it is the age of puberty which determines the
capacity to marry. Applying Section 8 of IFLA, Azman is not under age as he is 21 years old.
However, Bedah is fifteen years old. She is under age as stated in thet provision.

Applying Section 13 of IFLA in this situation, the both Bedah and Azman have consented to
the marriage, and either the Bedah’s wali has consented, or the Syariah judge has granted
his consent to the wali Raja to solemnize the marriage.

As following Shafii school of thought, Bedah’s father may dispose the hand of his daughter as
he pleases without asking her consent provided that she is still a virgin. This is in accordance
with Section 13 of Kelantan IFLE, the marriage of a virgin may be solemnised without Bedah
consent by the wali mujbir, her father, if her father or the prospective husband, Azman is not
hostile to her. Azman also in a same status as Bedah as they are working and a middle class
people. Then, Azman is able to pay reasonable mas kahwin.

Where Bedah’s father disposes of the hand of his virgin daughter, Bedah, whether minor or
adult, in favour of a man of inferior condition without obtaining her consent, the contract is
valid unless the Bedah applies for its cancellation. Her formal consent to the marriage is
necessary if she has already lost her virginity. Considering that Bedah is still virgin as she’s
still 15 years old.

As conclusion, Azman can marry Bedah if Bedah’s father consented to the marriage, and the
marriage will still be valid, even Bedah is a minor.
PART C, QUESTION 1(a)

The issue is whether the marriage of Mydin and Zaharah is valid according to Hukum Syara’
and thus can be registered under the Islamic Family Law (Federal Territories) Act 1984.

Nikah can be defined as a marriage or contract that legalise the relationship between man and
woman. What Quran says about marriage can be inferred from Surah An-Nahl, 16:72, where
it is stated that, “And Allah has made for you from yourselves mates and has made for you
from your mate’s sons and grandchildren and has provided for you from the good things”.

Prophet Muhammad in a hadith by Sahih Muslim had been reported to say, “O young people!
Whoever amongst you can afford marriage, let him marry. Whoever cannot afford it, let him
fasting, for it will be a shield for him”

Under Shafii School of Thought, for a marriage to be valid, there are few pillars and conditions
that must be satisfied. The first pillar is the prospective husband. There are few conditions that
must be fulfilled by the prospective husband. The first condition is, the prospective husband
must be a Muslim. He must not be within ihram hajj or umrah. Besides, the prospective
husband must be a specific man and not having four wives. In a Hadith, Ibn Umar narrated
that before Ghailam Al-Saqafi converted to Islam, he had 10 wives. When he became Muslim,
Prophet SAW instructed him to choose 4 out of his 10 wives. The prospective husband must
consent to the marriage and he must not be put under duress to agree to the marriage and
lastly, the proscpective husband must be a man and not khunsa musykil.

The second pillar is the prospective wife. The conditions that needs to be fulfilled by the
prospective wife is that, the prospective wife must be a Muslim. The prospective wife must be
a specific woman. Besides, the prospective must not be a wife to another person and must
not be within the period of iddah in connection with that person. The other conditions that need
to be fulfilled includes that the prospective wife must not be within ihram hajj or umrah and the
prospective wife must not be a muhrim to the prospective husband.

The next pillar is consent of the prospective wife, prospective husband and the wali. Under
Shafii school of thought, it is commendable to obtain the consent of a virgin girl to marry.
However, wali mujbir can compel her to marry. Section 13 of the Islamic Family Law (Federal
Territory) Act states that a marriage shall not be recognized as a valid marriage unless the
consent of both parties has been obtained and under subsection (a), the wali must also
consent to the marriage.
The next pillar is wali. A Wali in marriage is defined as a person who has the right to give away
a woman in marriage. According to Shafii, wali is a pillar (rukun) of nikah, however according
to Hanafi, wali is not rukun. In one Hadiths relied by Shafii schools, Aishah reported that
Prophet saw said: “The marriage of a woman who marries herself without the consent of her
guardian is void”. There are two types of wali, which is wali khas and wali ‘am. Wali khas is
the natural guardian who is a blood relative of the ward and one of the specified categories in
shariah. Under wali khas it can be further divided into few categories. One of them is wali
mujbir. Wali mujbir refers to wali who is given power to proceed with the marriage of his virgin
daughter (who is of sound mind and has come of age) without her permission. It only includes
natural father and paternal grandfather only. In the case of Mohammed Khafidz bin Mohamad
Ishak v Rabiah bt Sabri, the transfer of wali from wali nasab to wali hakim should have
happened because when the wedding took place, the wali nasab, her biological brother, was
present during the event. In this case, the distance between the place wali nasab was during
the marriage was no more than 2 marhalahs (90 kilometres) which allows the use of wali
hakim.
There was no wali from wali nasab to marriage official. It was held that the marriage was
invalid and they ought to be separated as one of the requirements of marriage under hukum
syara’ was not fulfilled.

The next pillar is the witnesses. In Section 22 of the Islamic Family Law Act (Federal Territory),
there need to be two witnesses other than the registrar, present at the time the marriage is
solemnised.

The last pillar is ijab and qabul. Ijab is the offer from bride’s wali or his representative while,
qabul is the acceptance in which it is considered as confession from bridegroom that he
accepts the woman’s willing to become his wife.

Applying it to the question, Mydin and Zaharah had married in Thailand, but with Zaharah’s
father as wali. Here, the first pillar is fulfilled where Mydin is the prospective husband. Mydin
too fulfils all requirements need as a prospective husband where he is a Muslim man and he
is not within hajj or umrah. The second pillar too is fulfilled as Zaharah is the proscpective wife.
Zaharah too had fulfilled all requirements needed under the second pillar.

Besides, both of them had consented to the marriage. This can be seen when they became
friendly to one another and eventually married. Besides, the wali’s consent too was obtained
as the father had voluntarily became the wali to marry off his daughter. As for the next pillar,
wali, Zaharah was married off by her father who had became the wali. Although the marriage
was solemnized in Thailand, the condition of the wali is fulfilled as the father had himself
became the wali. Applying the case of Mohammed Khafidz bin Mohamad Ishak v Rabiah bt
Sabri, where the marriage was deemed invalid as when the wedding took place, the wali
nasab, her biological brother, was present during the event, it can be said that since Zaharah
father was there during the marriage, the marriage is valid as he himself had became the wali
instead of wali hakim.

It is assumed that the last pillars are fulfilled as it is nowhere mentioned in the situation about
the process of the marriage ceremony of Zaharah and Mydin.

Thus, it can be concluded that the marriage between them is valid. Under Section 6 of Islamic
Family Law (Federal Territories) Act 1984, subsection (2), a valid marriage is deemed to be
registered under the same Act, and it shall continue unless if it is dissolved. However, it must
be noted that it is an offence under section 40(2), where any person who marries another
person contrary to the provisions under Part II of Islamic Family Law (Federal Territories) Act
1984 and can be punished with a fine not exceeding one thousand ringgit or imprisonment not
exceeding six months or both. Besides, Mydin also has committed an offence under Section
123 of Islamic Family Law (Federal Territories) Act 1984, where he had contracted to a second
marriage without permission from the court.

Thus, in conclusion, their marriage is valid and can be registered under Islamic Family Law
(Federal Territories) Act 1984.
PART C, QUESTION 1(b)

The issue is whether Sabariah can make application to the court for Khul’ against Mydin.

Other than divorce effected by husband by Talaq, marriage can also be dissolved through
khul’ where the wife will give her husband something for her freedom. The quranic basis for
khul’ is revealed in Surah Al-Baqarah ayah 229 where if it is feared that the husband and wife
would be unable to keep the limit ordained by Allah, there is no blame on either of them if she
gives something for her freedom. Khul’ is the separation between husband and wife with
certain payment or compensation in exchange of khul’.

During the time of Rasulullah S.A.W, the wife of Thabit b Qais came to him and said that she
could not bear to live with her husband and return what had been given by him. Rasulullah
S.A.W. then told Thabit to take back what she had given his wife and divorce her.

Khul’ is granted even when there is no fault on the part of the husband. The reason may be
simply that the wife fears she would unable to keep within the limits ordained under Islamic
Law. The provision for Khul’ divorce is provided under Section 49 of the Islamic Family Law
(Federal Territories) Act 1984, which stated that parties agree to a divorce by redemption or
cerai tebus Talaq, the court shall, after the amount of the payment of tebus Talaq is agreed
upon by the parties, cause the husband to pronounce divorce by redemption. Such divorce is
irrevocable and amounts to bain sughra.

There are eight notable condition of Khul’. First, there must be subsistence of marriage when
the application was made. Second, there must be a proposal by either party and acceptance
to the proposal. Third, is the expression or the language used. Fourth, is the capacity of the
parties. Fifth, is the intention. Khul’ deemed to be invalid if it is pronounced under compulsion.
Sixth, is the consideration paid to the person accepting. Seventh, the payment must eb made
immediately unless agreed otherwise and lastly, the pronouncement of Khul’ can be made
during a woman’s state of purity or menstruation. Only when all the requirements above is
fulfilled by both Sabariah and Mydin can the Khul’ be effected.

In the case of Khurshid Bibi V Mohamed Amin, the wife is entitled to Khul’ as of right if she
satisfied the conscience of the court that it will otherwise mean forcing her into a hateful union.
In this case, the Supreme Court of Pakistan observed that a marriage between Muslims is not
a sacrament but in nature of a civil contract which can be subjected to the dissolution for good-
cause as Islam conforms to the dictates of human nature and does not prescribe the binding
together of a man and a woman to a holy dead-lock. Then husband is given the right to divorce,
the wife in return was given the right to ask for Khul’

Sabariah is entitled to apply for Khul’ even there is no fault on Mydin’s part. Therefore, even
when Mydin had protested against the Khul’, the Khul’ can still be granted. Sabariah was upset
when she discovered about Mydin’s second marriage, even more upset when the Mydin’s
second wife is her rival since Form 1. The continuance of the marriage will only lead to hateful
union where neither Sabariah nor Mydin would end up be happy about. As decided in the case
of Khurshid Bibi V Mohamed Amin, marriage is not a holy dead-lock, therefore if Sabariah is
unhappy with the marriage and foreseeably unable to keep within the limits ordained under
Islamic law as she was very saddened and upset with Mydin’s second marriage, she is entitled
to resolve to Khul’ to terminate her marriage with Mydin by redemption.

Where the amount is not agreed upon by the parties, the court may assess in accordance with
the Hukum Syara’ the amount, having regard to the status and means of the parties. Where
the husband does not agree to the divorce, the court shall appoint a conciliatory committee in
accordance with Section 47 where under this provision, it is laid down that where the
committee submits a certificate that is unable to effect reconciliation, the court shall advise the
husband to pronounce one Talaq. The court shall refer the case to Hakam according to
Section 48. Under subsection (6) of Section 48, it provides that if the hakam are of the opinion
that the parties should be divorced, but are unable to order a divorce, the court shall appoint
other Hakam and shall confer on them authority to order divorce.

Khul’ is affected by means of approving words, spoken or written by the husband and wife.
Here, Sabariah offer the Khul’ and Mydin accepts the compensation out of her property for the
release of marital rights, it is completed by pronouncement of Talaq by Mydin. The amount of
compensation shall be agreed by both parties and shall be in accordance with the status and
means of the parties. If Mydin does not agree to the divorce, the court shall appoint a
conciliatory committee in accordance with Section 47 and if reconciliation is failed to be
achieved, the court after referring the case to Hakam according to Section 48, will advise
Mydin to pronounce one Talaq.

In regards to husband’s consent to the divorce, there are two school of thoughts on this point.
One is of the opinion that Khul’ can be effected only when the husband consents to the divorce
while the other opinion is that Khul’ divorce can be effected by the court even when the
husband does not consent to it. According to Imam Shafii, Khul’ is only enforceable if the
husband provides his consent. The wife cannot herself effect the Khul’ divorce but must do so
through the court. The Islamic Family Law (Federal Territories) Act 1984 does not expressly
state that the points but appear to provide a process whereby the Khul’ without consent from
the husband might be effected after the parties had gone through a lengthy procedure
involving the court (Section 49), a conciliatory committee (Section 47) and two sets of Hakam
(Section 48).

If upon the application of Khul’ by Sabariah, Mydin refused to give his consent to the divorce
by redemption, the court will appoint a conciliatory committee according to Section 47 and that
Section shall apply accordingly. The court may order both parties to appoint their respective
Hakam as in section 48 to resolve the matter. If both the Hakam cannot come into a mutual
agreement, the court will appoint another Hakam and conferred upon him the authority to
effect a divorce. Therefore, even without Mydin’s consent, the divorce can still be effected.

Divorce by Khul’ is a proof that Islam is fair and even in providing for both husband and wife
which is perfectly consistent with principle contained in Surah Al-Baqarah ayah 228. In
conclusion, Sabariah may made application to divorce Mydin by way of Khul’ or redemption
or cerai tebus Talaq.
PART C, QUESTION 1(C)

The issue is on the distribution of Mydin’s property after his death.

The estate of a deceased person is to be divided through faraidh after the payment of the
debts and legacies. Thus, before the estate of the deceased property can be distributed, the
debt of the deceased must be settled first, and the question of testacy must be resolved first.
In the case of testacy, the property of a Muslim is automatically distributed under faraidh upon
his death, however, as the testator, he may dispose 1/3 of his property to non-quranic heirs
which includes, adopted children. The portion of property that can be bequeathed by a testator
under Islamic Law is only 1/3 of the total assets available at the time of the death, after the
substraction of the amount used for legacies and settlement of debts if any. This is by virtue
of a hadith where The Prophet SAW said to Sa’ad bin Abi Waqqas that he may give only 1/3
of his property to charity as it is better to leave his offspring wealthy than to leave them asking
for help of others.

As for nominees of funds, If the person nominated by a policy owner is other than his spouse,
child or parent, such person shall receive the policy moneys payable on the death of the policy
owner as an executor and not solely as a beneficiary and any payment to the nominee shall
form part of the estate of the deceased policy owner.

However, before the estate of the deceased is divided through faraidh, the spouse of a
deceased may claim under harta sepencarian for jointly acquired matrimonial property.

Rights for Harta sepencarian arise when there is a divorce or death of either party to the
marriage. In An-Nisa, ayat 32, states that for men is a share of what they have earned, and
for women is a share of what they have earned. The definition of harta sepencarian can be
found under Section 2 of the Islamic Family Law Act 1984 as property jointly acquired by
husband and wife during the subsistence of the marriage in accordance with the conditions
stipulated by Hukum Syara’. In the case of Robert V Umi Kalthom, Raja Azlan Shah J, further
explained harta sepencarian as a matter of Malay Custom and only applicable only to the case
of a divorced spouse who claims against the other spouse during his or her lifetime.

Section 122 (1) governs on assets acquired by joint efforts while Section 122(3) governs on
assets acquired by sole effort. In this problem, the properties in question were solely acquired
by Mydin as there is nowhere mentioned in the question that either Sabariah or Zaharah had
contributed in acquiring the assets. Section 122(3) provided that the court have the power to
order the division of the assets acquired by sole effort between the parties, however subject
to the contribution made by the party who did not acquire the assets to the welfare of the family
and the need of the minor children of the marriage.
This is illustrated in the case of Rokiah bt Hj Abd Jalil V Mohd Idris Shamsuddin where the
wife claimed a matrimonial property after the divorce. The court held that, although the house
is a sole effort property, she is entitled for harta sepencarian because of indirect contribution
of the wife in looking after the household, the husband and children for the period of over 35
years of marriage.

In another case of claim of harta sepencarian, Tengku Anun Zaharah V Dato Dr Hussein, the
wife claimed harta sepencarian however the husband said the property was sole effort
property. The court held that although the wife did not financially contribute to the purchased
property, she did contribute with her moral support and position which enabled the husband
to acquire the honor of Dato. The Court ordered that a piece of land with the area of 3 acres
to be given to the wife.

In regard of a wife’s right to her husband EPF monies and savings after the divorce, the case
of Noridah Ab Talib further explained on this matter. In this case, the wife claimed certain
assets that belonged to her and registered in the name of the defendant to be declared as
harta sepencarian and divided between them after the divorce. Among the assets are the EPF
and the savings in the Lembaga Urusan dan Tabung Haji. It was held that the EPF could not
be regarded as matrimonial property by indirect contribution, in reference to the original
concept of matrimonial property. Instead, it is considered as the personal property of the
employee, who has an absolute right towards the savings. Further, the savings in the Lembaga
Urusan dan Tabung Haji are personal Savings and there are no provisions stating that the
savings could be categorised as joint effort and deemed matrimonial property. This is due to
the fact that all savings belongs to the individual.

As for intestacy, in surah al Nisa verse 11, Allah s.w.t. revealed, “Allah instructs you
concerning your children: for the male, what is equal to the share of two females. But if there
are [only] daughters, two or more, for them is two thirds of one's estate. And if there is only
one, for her is half. And for one's parents, to each one of them is a sixth of his estate if he left
children. But if he had no children and the parents [alone] inherit from him, then for his mother
is one third. And if he had brothers [or sisters], for his mother is a sixth, after any bequest he
[may have] made or debt. Your parents or your children - you know not which of them are
nearest to you in benefit. [These shares are] an obligation [imposed] by Allah. Indeed, Allah is
ever Knowing and Wise”, whereas in verse 12, And for you is half of what your wives leave if
they have no child. But if they have a child, for you is one fourth of what they leave, after any
bequest they [may have] made or debt. And for the wives is one fourth if you leave no child.
But if you leave a child, then for them is an eighth of what you leave, after any bequest you
[may have] made or debt. And if a man or woman leaves neither ascendants nor descendants
but has a brother or a sister, then for each one of them is a sixth. But if they are more than
two, they share a third, after any bequest which was made or debt, as long as there is no
detriment [caused]. [This is] an ordinance from Allah, and Allah is Knowing and Forbearing.”

Applying it to the question, before Mydin’s assets can be claimed under harta sepencarian
and then be distributed by way of faraidh, the debts of Mydin must first be settled. In this
situation, Mydin had taken a bank loan to purchase the matrimonial home during the
subsistence of his marriage with Sabariah. Thus, the loan must be settled first, before his
estate can be distributed to the legal heir as according to Islamic Law of Succession. After the
debt is settled, the next thing that needs to be considered is the rights of Malik who is an
adopted son of Mydin to receive the 1-acre land in Tanjung Karang. Mydin had made a will
leaving Malik a portion of his land. Here, in the case of testacy, the property of a Muslim is
automatically distributed under faraidh upon his death, however, as Mydin is the testator, he
may dispose 1/3 of his property to non-quranic heirs whom here is Malik. Considering the fact
that Mydin had left behind quite a number of assets, I am of the opinion that the will made by
Mydin leaving one acre of the land to Malik fulfils the requirements of the portion allowed to
be distributed to non-heirs.

Besides, we will also look at the position of Sabariah in claiming her rights to the property.
When Mydin died, Sabariah was no longer a wife to Mydin as she had been divorced. However
so, Sabariah can still claim harta sepencarian acquired when her marriage was still in
subsistence. During the subsistence of the marriage, among the property acquired by the
couple is a matrimonial home, a 12-acre land in Tanjung Karang, and a factory to manufacture
soap from goat’s milk. However, all the property was solely acquired by Mydin as there is
nowhere mentioned in the situation about Sabariah’s contribution in acquiring the assets. In
Section 122(3), it is provided that the court have the power to order the division of the assets
acquired by sole effort between the parties, however subject to the contribution made by the
party who did not acquire the assets to the welfare of the family and the need of the minor
children of the marriage.
Applying the principle in the case of Rokiah bt Hj Abd Jalil V Mohd Idris Shamsuddin to the
current situation, although the assets is a sole effort property, Sabariah is entitled for harta
sepencarian because of indirect contribution of her in looking after the household, the husband
and children. Therefore, by referring to Section 122(3) and (4), Sabariah is entitled to the
properties stated above. The court has the power to give a proportion of the assets to Sabariah
although she did not acquire the assets subject to the consideration provided in Section
122(4). However, the division of the assets given to Mydin whom acquired the assets will be
of greater proportion compared to Sabariah.

The same goes to the rights of Zaharah to the inheritance of the property of Mydin in which,
Mydin had left her with a bungalow house. Although she did not contribute in acquiring the
property, but by virtue of Section 122(4) and the principle in the case of Rokiah bt Hj Abd Jalil
V Mohd Idris Shamsuddin, she is entitled to the property, but in accordance with her
contribution only, in which here, the contribution is moral support for the husband.

On the other hand, unlike the properties, both Zaharah and Sabariah has no rights over
Mydin’s EPF monies and money in CIMB savings account. Applying the principle of the case
in Noridah Ab Talib. it was held that the EPF could not be regarded as matrimonial property
by indirect contribution, in reference to the original concept of matrimonial property. Instead, it
is considered as the personal property of the employee, who has an absolute right towards
the savings. Further, the savings in the Lembaga Urusan dan Tabung Haji are personal Svings
and there are no provisions stating that the savings could be categorised as joint effort and
deemed matrimonial property. Thus, both of them cannot claim the rights to the EPF monies
and savings money in CIMB Bank.

Lastly, we have to deal with the distribution of the property according to faraidh. Since Mydin
has left behind two daughters and a wife, according to Faraidh, 1/8 of his balances assets is
to be given to Zaharah and the rest will be divided to Aina and Dalina accordingly.

In conclusion, Malik are entitled to receive one acre of the land in Tanjung Karang as stipulated
in the will made by Mydin. As for Sabariah and Zaharah, they are entitled to the matrimonial
properties which is acquired by Mydin’s sole effort when the marriage is in subsistence,
however so, they are only entitled to the property in accordance with their contribution only,
and both of them has no right over the EPF and the savings money and the rest of the property
will be divided according to Faraidh which Zaharah will receive 1/8 of the property and the rest
will be distributed to Aina and Dalina accordingly.