Faculty Shariah and Laws

Fiqh al-Munakahat
LBA 2083
Semester II, Academic Session 2011/2012
Group: KLC 1; TLC 5

Students Name:
Mohd. Azuwa bin Hasan 1101199


Lecturer:
Doctor Wan Abdul Fatah
Date:
26
th
March 2012

Contents
1. Introduction
2. Age of Marriage
2.2. Regulation from the Holy Quran
2.3 Views from Shariahs Perspective
3. The Legal Principles Existed in Section 8
4. Conclusion
5. Reference





















1. Introduction
Act 303, also known as Islamic Family Law for Federal Territories, gazzeted in 1984 is an act
which governs all matters relating to family law. It is only enforceable on Muslim only whereby non-
muslim shall not be affected by it.
The said Act
1
applies only to the Federal Territories of Kuala Lumpur, Putrajaya and Labuan
only, the other states such as Kelantan, Kedah, Perak, Melaka, Pulau Pinang, Selangor, Johore, Perlis,
Sabah, Sarawak, Pahang, Terenganu and others. As the states will be governed by their own enactments
or ordinances or acts.
2

Section 8 of the said Act is discussing about the age allowed to get married, section 8 of Islamic
Family Law (Federal Territories) Act 1984 (Act 303) stated that:
No marriage may be solemnized under this Act 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
Therefore, any solemnization of marriage which held or will be held in the Federal Trritories will
be governed by this section of the said Act
3
.














1
Islamic Family Law (Federal Territories) Act 1984, (Act 303)
2
Article 74 of the Federal Constitution
3
Islamic Family Law (Federal Territories) Act 1984, (Act 303)
2. Age of Marriage

2.1. Regulation from the Holy Quran
In the Holy Quran, surah an-Nisa, verse 6;

l., _...,l _.> :| -l, _l>.l | ,.`., .. .:' `-:! ,l| >.
!>l!. !`.| ., >, _. l !,.s -.`.,l _. l ,1 _!,l .-.l!,
:| .-: ,l| >. .:! ,l. _ <!, !,,.> _

make trial of orphans until they reach the age of marriage; if then you find sound judgment in
them release the property to them

2.2. View from Shariah Perspective
Under the Islamic Law, someone will be eligible to marry when they reach the age of
puberty. As for female, they are considered the be a major or reach the age of puberty when they
begin to menstruate whereby the earliest age to menstruate is nine(9) years old.
According to Abu Hanifah
4
, the founder of Hanafis School of Thought, the girl age of
major is 16 years old and a boy is considered major when he gets a wet dream or wet dreams as
the lowest age is 12 years old. However, the theory of Abu Hanifah however differed from his
own students as well as Imam Abu Yusuf and Imam Muhammad Al-Shaybani
5
, they believe that
a boy gets wet dream and a girl experience her first menstruate at age of 15 therefore they are
considered major. Their theory is accepted by Imam Shafie.
Specifically discussing about the matter which is stated in the said Act as the age of
marriage, the Sunni Schools of Law believe that the age of puberty determines the capacity to
marry. If the girl did not reach the certain age or the boy they shall not be married unless with a
written exemption by the Shariah Judge. There is no other way except to wait until the both
parties reach the said age which is 18 years old for the male and 16 years old for the female,
however they may get into a betrothal even though they are not yet at the age of major.

4
Imam Abu Hanifah, founder of Hanafi School of Thoughts
5
Tanzil-ur-Rahman, A Code of Muslim Personal Law, 1978
However, section 8 of the Islamic Family Law 1984 did bring speculations about the age
allowed to get married, as the hadith narrated by Hisham bin Urwa on the authority of Urwa that
the Prophet (peace be upon him) wrote the marriage contract with Aisha while she was six years
old and consummated his marriage with her while she was nine years old and she remained with
him for nine years (until his death)
6
.
Muslim Scholars generally regard the case as a special case which is only happened to
the Prophet (peace be upon him) and logically thinking that at that time Aisha already a full
grown up woman, proven by a research conducted by Hakim Niaz Ahmed where he stated that
Aisha was the first batch of persons who accepted Islam as Islam is already strong during that
time and during the war of Badar and Uhud, she was present and her intelligence, mental
development and sagacity prove that she was all full grown up women regardless her age. The
controversy did arise however the term special situation which just only happened to the
Prophet) rejected all silly questions.


3. The Legal Principle Existed in Section 8
In section 8 of Islamic Family Law (Federal Territories) 1984 stated that:
No marriage may be solemnized under this Act 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
In this section there are five legal principles which are existed and enforceable on Muslim in the
Federal Territories whereby Kuala Lumpur, Putarjaya and Labuan. They are;
1. The minimum age allowed to get married for the man is eighteen(18) years old, if the
man did not reaches the said age he will not be allowed by law to get married.
2. The minimum age allowed to get married for the woman is sixteen(16) years old, if the
woman did not reaches the said age she will not be allowed by the law to get married.
3. Both parties which are the man and the girl are required by law to reach the age of major
as eighteen for the man and sixteen for the woman so they will be allowed by law to get
married.
4. However, if a Shariah Judge granted a written permission in certain circumstances, the
both parties or either one of them who did not reached the age of major will be allowed
by the law to get married.
5. The certain circumstances which are stated in the said Act must be a reason or reasons
which is sound by the law and not because of it was a request from the parties or a party
or for non-legal reasons such as love.


6
Sahih al-Bukhari Kitab an-Nikah, Vol VII, p65
The 5
th
legal principle which is existed in the said section of the said Act
7
means, the Shariah
Judge shall act accordance to the law, moral logics and customs. The permission must be for legal causes
or moral causes which are sound by the law such as the both parties which are minor but already have a
sexual intercourse, therefore for such circumstance the Shariah Judge shall by his power to permit them to
get married. The reason of love, the man confessed to the Shariah Judge that he loves the girl so much
and if he did not get married with her he may commits suicide, the Shariah Judge must considers the
moral, law and even the mans family history as maybe there is a case involving a member of the family
commits suicide because of love.

4. Conclusion
The minimum age of marriage which is regulated by section 8 of the Islamic Family Law for
Federal Territories 1984 is a law which governs the matter of Islamic Family Law perfectly as it
accordance to the Islamic Law or Shariah. There is no need to amend it as it is suitable and applicable for
Muslim in the Federal Territories.
















7
Islamic Family Law (Federal Territories) Act 1984, (Act 303)
5. Reference:
1. Family Law in Malaysia, Third Edition, Ahmad Ibrahim, LexisNexis, 1997
2. " ", 11
th
Edition, Doctor Mustafa al-Khin, Doctor Mustafa al-Bugha, Ali Sharbaji,
Darum Qalam;Damsyik, 2011
3. " ", First Edition, al-Qadhi Abi al-Walid Muhammad bin Ahmad bin
Muhammad bin Ahmad ibn Rusyd al-Qurtubi, Muassasatul Maarif;Beirut Lebanon, 2006
4. Islamic Family Law (Federal Territories) Act 1984, Act 303, International Law Book Services,
2009