BETROTHAL

There is no blame on you if you make an offer of

betrothal, Or hold it in your hearts. Allah knows
that you cherish them in your hearts. But do not
make a secret contract with them except in terms
Surah Al-Baqarah: 235 honourable nor resolve on the tie of marriage until
the term prescribed is fulfilled. And know that Allah
knows what is in your hearts and take heed to Him.
And know that Allah is Oft-Forgiving Most
Forbearing.”
 In the above verse the word ‘Kitbah’ does not means obligatory, but it is
recommendable.
 Betrothal is preliminary to a marriage. It is a practice of custom which does not
contradict the Islamic law.
Introduction  According to the Islamic law maxim, custom becomes a principle of Islamic law
if it does not contradict the Shariah.

Hadith, the Prophet S.A.W “A matter or deed which is regarded as good by

said Muslim community is also good with Allah.”
 Therefore betrothal is recommendable in Islam and it is not a religious
obligation. It is based on customary practice.
 Some of the benefit of betrothal are, it strengthen family ties and future
husband and wife can know each other.
 However, betrothal does not grant a license for the couple to go out together
without mahram since it is forbidden by the Shariah because they are not
officially married.
 In a Hadith, the Prophet s.a.w. said that when a man and a woman meets, the
third one will be the Satan.

 The effect of betrothal are as follows:-

i) It is not a legal contract;
ii) Parties does not becomes husband and wife;
iii) It is morally binding; and
iv) No legal consequences if breach (maintenance) but only require
Effect the return of the gift (if any).
 It is different from the Civil law position. In Malaysia, parties can claim under
Section 10 of the Contracts Act .

Men can see the women (vice versa)

◦ The Prophet s.a.w. does allow the man to see the women when they want to
marry.
◦ The following Hadith indicates the above ruling.

Procedure
i) Al Mughirah Ibn Syu’bah proposed to a
Hadith: woman and the Prophet s.a.w. said to him,
look at her for this is appropriate in order
to ensure agreement and harmony
between you.
 ii) Abu Hurairah r.h. said that I was in the
company of the Allah’s Messenger when
there came a man and inform that he had
contracted to marry a woman of the Ansar.
Thereupon the Allah’s Messenger said: ‘Did
you cast a glance at her’. He said: ‘No’.
Then the Prophet said: ‘Go and cast a
glance at her’.

i) Jabir ibn Abdullah said that the Prophet

s.a.w. said : “If any one of you become
engage to a woman and is able to see
something of her which makes him wish to
marry her then let him do so.”

 From the above Hadiths it is inferred that although it refers to man, but it is
also applicable to woman .
There are 2 conditions to be observed:
1. Recommendable conditions
i. Virgin woman

It is related from Jabir Ibn Abdullah said that the

Prophet s.a.w. said to me: ‘Did you marry?’. I said:
‘Yes’. He said: ‘Virgin or non virgin’. I said: ‘Non
Hadith-
virgin’. He said: Why did you not marry a virgin with
whom you could find enjoyment and she find
enjoyment with you’

ii. Fertile woman who can bear children.

Maqil b. Yasar said: ‘A man came to the Prophet

Conditions s.a.w. and said: ‘I have found a woman of rank and
beauty, but she does not give birth to children.
Should I marry her? He said: ‘No’. He came to him
Hadith-
again but he prohibited him. He came to him the
third time and he (the Prophet s.a.w) said: ‘Marry
women who are loving and very prolific, for I shall
outnumber the people by you’

iii. Religious woman

Abu Hurairah r.h. reported that the Prophet s.a.w.

said: ‘Women may be married for four reasons: for
Hadith- her property, her rank, her beauty and her religion.
So get the one who is religious and you will
prosper’
 2. Legal conditions
i. At the time of the betrothal, there are no legal Impediments to the
marriage between the parties.

a) Prohibited Women
 Prohibited woman either temporarily or permanently by ways of
kindred Affinity or fosterage.

b) The woman is not a married woman

 If she is a divorcee, it must not be made during iddah period of Talaq
Rajie (revocable divorce). It is haram to propose because her husband
can ruju’ her back.
 Talaq Bain (irrevocable divorce) iddah period 3 months
 Maliki and Syafie’s views said it is permissible during iddah period but
by Kinayah (implicit)
 Hanafi’s view said its is Haram during iddah period whether Sareh or
Kinayah.
 If a widow (iddah period is 4 month 10 days) the proposal must be
made by Kinayah (impliedly)
 Surah al Baqarah: 235

Case Maria Tunku Sabri v Datuk Wan Johari W. Husin

ii. The women has not been Betrothed yet

 According to Jumhur Ulama, it is HARAM to propose for a betrothal
when the women has been betrothed unless the first had been
rejected.

i. Abu Hurairah r.h. said that the Prophet

s.a.w. said: A man should not proposed to a
woman to whom his brother has proposed
until he either marries her or gives up his
suit.
Hadith ii. Ukbah Ibn Nafi relates that the Prophet
s.a.w. said, one believer is the brother of
another. It is not permitted for a believer to
undercut the trade of his brother or to
propose to a woman to whom his brother
has propose until the brother gives up his
suit.
 However the Jurists differ in certain situation regarding the following
ruling:
a) If the woman has not reply to the first proposal i.e. keep quiet
 While the husband of Fatimah bt Qay’s divorce her
three times, after which three of the Companions
Hadith: Syafie and Hanbali of the Prophet s.a.w. namely Muawiyyah, Ibn Jahm
said it is permissible to and Usamah all proposed to her at the same time.
propose for second proposal She spoke to the Prophet s.a.w. about this. The
based on this Prophet s.a.w. advised her that Muawiyyah is poor
with no money, Ibn Jahm does not live his stick on
his shoulder. So marry Usamah Ibn Zaid.
 Hanafi and Maliki said Haram to propose by second person,
although the woman does not reply to the first proposal. When a
woman keep quiet, it does not mean that she had not accepted the
first proposal.

b) If the Proposal has been accepted by the woman

 Zahiri and Maliki said that the second proposal is permissible if the
second man is more religious and more compatible than the first ones.
It is for the best interest of the woman. However if both the men are
equally religious then the second proposal is not permissible.
 However Jumhur Ulama said that it is Haram to propose for the
second proposal whether the second man is more religious or not.
They based on the first two Hadiths.

In general principle, all promises made must be fulfilled.

“O you who believe fulfill all obligations”
Surah al Maidah: 1
However, since betrothal is not a legally binding effect, it can be rescinded
provided there is a valid reason
What happens to the gift? (see hadith)
Ibn Abbas reported the Prophet s.a.w. as saying:
Hadith:
“One who gets back the gift, is like a dog which
vomits and then eats its vomit”
Both parties must return back the gifts, in case of
breach. It is immaterial whether the gift is intact
Shafiie or not. If the gift was consumed then the value of
the gift must be returned.
Breach of
betrothal
The giver can ask for the return of the gift if the
breach was by the other party, provided that the
gift is still intact and not yet consume. If the gift
Hanafi
has been consumed, it is not obligatory to return
Jurists view:
the gift.

Hanbali His view is the same as Shafiie’s view.

If the default is by the man, he has no right to ask
back the gift. If default is by the woman, she has
the right to ask back the gift. It is immaterial
Maliki
whether the gift is intact or not. If the gift had
been consumed, then the value of the gift must be
returned.
  Daud S. El Alami (a contemporary jurist of
Maliki)
- According to him, there two views on the gift in
case of breach of betrothal:
 Generally, if breach is by the woman, there
is no requirement to return the Gift.
 If the custom or the condition of the
contract require to return back the gift
,then the gift must be returned. However, if
the custom and the contract does not
require so, then it depends on which party
causes the breach. Then the other party
will entitle for the return of the gift.
Section 15 of IFLA
 Only the defaulting party must return the gifts;
 Defaulting party must pay any costs incurred; and
 Can recover back through court action.

Hussin V Moh
 The Appellant on behalf of his son sought the daughter of the
Respondent. A betrothal was arranged and it was agreed that
the mas kahwin should be RM500. The Respondent spent
RM350.40 in preparation for the marriage and on the day of the
marriage, Appellant should paid RM300 in cash and RM200 in
jewellery which Respondent refused to accept. The marriage
did not take place.
 Respondent sued Appellant for RM350.40 and claimed for
damages in preparation of marriage. The learned Kadi gave
judgement in favour of Respondent and ordered Appellant to
pay because the refusal was due to his fault.
 However, on appeal, the judgement was in favour of Appellant
Position in
because the refusal of the Respondent to accept RM300 cash
Malaysia
and jewellery worth RM200 was unreasonable.
Cases:
Aisyah V Jamaluddin
 Breach of betrothal without valid reason.
 The woman claimed for mas kahwin of RM25, preparation for
marriage of RM800 and an engagement ring.
 The court ordered the man to pay RM25 for mas kahwin,
RM800 for preparation of marriage, RM25 for clothes and
RM400 for cost of house renovation
Salbiah Othman vs. Hj Ahmad
 The P (Salbiah) has engaged to the Defendant on 28/7/2001
 The date of marriage was fixed on 31/8/2001
 However, the D breach the promise to marry through his
representative on17/8/2001 without valid reason.
 Plaintiff claimed ;
◦ Damages for defamation RM200,000; and
◦ Damages for preparation of marriage RM9677.00.
 The court rejected the claim for defamation.
 ◦ The proper court to hear the matter is CIVIL COURT because
it involves general damages, defamation-caused humiliation
of Plaintiff to general public
 The Court allowed the claim of damages of RM8277.10
◦ The damages includes expenses incur for preparation of
marriage amounted to RM250.
 The Defendant has paid RM2000 as deposit for marriage
preparation.
 Therefore, the court ordered the Defendant to pay the balance
of RM6277.00.

Mohd Azla v Mokhtar Hashim & Anor

 P was ex-fiancé of D2. D1 is the father of D2. During the
engagement ceremony, P presented gifts amounted to RM
10,050.
 P alleged that D1 had promised during the engagement, that he
would pay double compensation for all the engagement gifts, if
the breach was on the part of D2.
 D2 broke the engagement on the ground that P’s relative had
made an allegation that she was not a virgin.
 P claimed: Compensation for breach of the betrothal (double
compensation for the engagement gifts) and general damages
of RM 50,000 for humiliation
 Syariah Subordinate Court (Sepang) allowed P’s application and
order the followings:
◦ All gifts are to be return according to the agreement; and
◦ Ds have to pay RM22,500 that is double the amount of the
engagement gifts.