Business Law Oral Assignment

Malaysia Law Clear on Child Marriage

The Star , 11 JUL 2018

In Malaysia, the public was shocked when they learned that a 41-year-old Malaysian
weds a 11-year-old girl in Golok, a border town in southern Thailand. The man, who
already has two wives and six children, is said to be the imam of a surau at a
village in Gua Musang, Kelantan. The matter became viral when his second wife
posted photographs of the man and the young girl and their alleged solemnisation.
Amid public outrage, parents of the 11-year-old girl defend decision to allow their
daughter's marriage to the 41-year-old man.
Malaysia Child Marriage Case
http://jafbase.fr/docAsie/Malaisie/Mariage&Divorce.PDF

Malaysia Minimum age for marriage

Constitutionally, Malaysia’s legal system is bifurcated. Non-muslim malaysians,
mostly from the nation’s ethnic Chinese and Indian minorities, are bound by civil
law. Under the law, unless special consent is given by a high-ranking state
minister, Malaysia’s non-muslims cannot get married until they are 18.

→ Based on section 10 of the law reform (marriage and divorce) act 1976 (act 164)
the solemnization of such marriage was authorized by a licence granted by the
Chief Minister under subsection 21(2)

Authorized by a licence granted by the Chief Minister under subsection 21 (2)

21. (2) The Chief Minister may in his discretion grant a licence under this section
authorizing the solemnization of a marriage although the female party to the
marriage is under the age of eighteen years, but not in any case before her
completion of sixteen years.

Requirement of consent
Based on Section 12
(1) A person who has not completed his or her 21 year shall, notwithstanding that
he or she shall have attained the age of majority as prescribed by the Age of
Majority Act 1971 [Act 21], nevertheless be required, before marrying, to obtain
the consent in writing—
(a) of his or her father;

Malaysia Shariah court

the country’s ethnic malay muslim majority, however, must hew to Islamic law. A
shariah court must grant permission for minors below the age of 16 to marry. If a
muslim receives approval from shariah authorities, there is no minimum age for
marriage.

But Mr. Che Abdul Karim did get in minor trouble for not following all the
requirements for a child marriage. The Shariah Court in Kelantan this month fined
him $450 for the infraction of marrying Ayu in neighboring Thailand without the
court’s prior permission.

Based on section 2 Age of majority act 1971 (act 21)

Meanwhile for muslim parties, the minimum age of the solemnization of marriage is
only when the man has reached the age of majority (18)

Under Islamic family law (federal territory) act 1984

(act 303)
For the woman is reach at age of 16
in this case, a woman under 16, may get married to her husband if a syariah judge
has granted his permission to do so under certain circumstances.

Under Kelantan Law,

Section 8 of the Islamic Family Law Enactment 2002 provides that “no marriage may
be solemnised under this enactment where either the man is under the age of 18 or
the woman is under the age of 16 except where the shariah judge has granted his
permission in writing in certain circumstances”.
This means that Parliament cannot make laws on Muslim marriages. Only the state
legislature can do so.

The Commitee on the Right of the Child (CRC)

Defines ‘child marriage’ as any marriage where either one (or both) partners are
below 18 years of age.
In this case, ‘marriage’ also refers to unions under civil, religious or customary
law, and this includes those that take place without formal registration.
While the CRC defines ‘child’ as any human being under 18 years of age, in Malaysia
the definition of ‘child’ can – and does – differ not only according to specific
legislation but also within civil, criminal and Islamic law.

It deprives a child of their right to education (art. 28, convention on the rights
of the child),
Their right against separation from their parents (art. 9, convention on the rights
of the child),
And the right to be protected against all forms of exploitation which affects the
welfare of a child (art. 36, convention on the rights of the child).
A child still should not marry until she is competent to consent, as it is a
decision which will greatly influence the future of the child, these excuses to
moralize child marriage should be completely disregarded as every child deserves to
live the childhood they deserve.
Child Marriage should be banned in Malaysia

Child marriage is objected to religious grounds by

Malaysia’s Muzakarah Jawatankuasa Fatwa Majlis Kebangsaan Bagi Hal Ehwal Ugama
Islam.
The Fatwa Committee has declared child marriage an unhealthy practice that has deep
detrimental impact on the child’s health and psychology.
It has urged that the Prophet’s marriage to Aishah not be used as an excuse for
child marriage.
Religious scholars (ulama) agreed that child marriage is neither compulsory nor
encouraged by Islam (“bukan perkara yang wajib atau sunat”), and that there is no
Hadith that encourages such a practice.
This group of Islamic scholars also called for a tightening of regulations on child
marriage and for the principles of Maqasid Syariah and Fiqh to be followed, to
“avoid harm” to the children.

The Thai girl transfer back to Thailand

“Sending the child off to the Thais is surely a transparent attempt to close the
case and get rid of the problem.”

Ms. Wan Azizah, the Malaysian deputy prime minister, said that given
She is a Thai citizen, and the Thais want to take care of her well-being,”
“For the best interests of the child, we have to separate them. Our officers got
together to give our support for how best to do that.”

https://www.nytimes.com/2018/08/16/world/asia/11-year-old-bride-thailand.html
Suggestion from us
To increase the minimum age to 18 is an important lifeline as it provides an
opportunity for girls to attain a full formal education until SPM before entering
the world of marriage. This state-protected care and independence is especially
important to liberate girls who are at risk to escape the push factors of child
marriage.