Introduction
Betrothal from the definition from Oxford
Student Dictionary, it means an agreement to marry somebody. Besides, betrothal
is known as the first stage before marriage.[1]Betrothal
it is something that the betrothal is known in Islam. Also the ceremony called
nikah which is marriage vow is known for uniting husband and wife.[2]
It is customary to make a gift to the fiancée
at this party. The gift is used to be some kind of popular food but nowadays it
is generally an engagement ring. Some even exaggeratedly present the fiancée
with assorted jewels in addition to the ring. This formal betrothal is not a
legal contract. It does not make the parties husband and wife, they are merely
affianced. In fact, this is the next step proceeded to marriage directly if the
boy has ready, but the betrothal is recommended as an intermediate stage,
binding the two parties in a non-legal tie. This provides a chance for greater
acquaintance and a period of grace, short or long, for the next serious stage
which means the marriage contract ceremony.
Betrothal is a sort a moral binding. It does
not give rise to the right of alimony and if broken it does not involve legal
consequences, except the return or unperishable gifts, if the breach is not
caused by the giver. Of course it is bad to break the engagement unless there
is a good reason for it.
In section 15, Islamic Family Law Act 1984
(IFLA) Federal Territories (Act 303) stated that, “if any person has, either
orally or in writing, and either personally or through an intermediary, entered
into a betrothal in accordance with Hukum Syara’, and subsequently refuses
without lawful reason to marry another party, the other being willing to marry,
the party in default shall in liable to return the betrothal gifts, if any, or
the other value thereof and to pay whatever moneys have been expended in good
faith by or for the other party in preparation for the marriage, and the same
may be recovered by action on court”.
Section 15 Betrothal
“If
any person has, either orally or in writing, and either personally or through
an intermediary, entered into a betrothal in accordance with Hukum Syarak”
It is stated in the holy quran
Ÿwur yy$oYã_ öNä3ø‹n=tæ $yJŠÏù OçGôʧtã ¾ÏmÎ/ ô`ÏB Ïpt7ôÜÅz Ïä!$|¡ÏiY9$# ÷rr& óOçF^oYò2r& þ’Îû öNä3Å¡àÿRr& 4 zNÎ=tæ ª!$# öNä3¯Rr& £`ßgtRrãä.õ‹tGy™ `Å3»s9ur žw £`èdr߉Ïã#uqè? #…ŽÅ HwÎ) br& (#qä9qà)s? Zwöqs% $]ùrã÷è¨B 4 Ÿwur (#qãBÌ“÷ès? noy‰ø)ãã Çy%x6ÏiZ9$# 4Ó®Lym x÷è=ö6tƒ Ü=»tFÅ3ø9$# ¼ã&s#y_r& 4 (#þqßJn=ôã$#ur ¨br& ©!$# ãNn=÷ètƒ $tB þ’Îû öNä3Å¡àÿRr& çnrâ‘x‹÷n$$sù 4 (#þqßJn=ôã$#ur ¨br& ©!$# î‘qàÿxî ÒOŠÎ=ym ÇËÌÎÈ
Translation:
There is no sin for you in that
which ye proclaim or hide in your minds concerning your troth with women. Allah
know that you will remember them. But plight not your troth with women except
by uttering a recognised form of words. And do not consummate the marriage
until (the term) prescribed is run. Know that Allah know what is in your minds,
so beware of Him; and know that Allah is Forgiving, Clement. (235) [3]
There are also a
variety of Hadith that related with betrothal:
عن ابن عمر يقول: نهى النبي صلعم أن يبيع بعضكم على بيع بعض ولا يخطب الرجل على خطبة أخيه حتى يترك الخاطب قبله أو يأذن له الخاطب.
1. Translation:
Ibnu Umar reported that Allah’s Messenger (peace be upon him) said: A person
shall not enter to the transaction when his brother has already entered into
but not finalized and he should not make a proposal or khitbah already made by
his brother, until he permits it or until his gaves it up.[4]
2. “Uthman
bin Affan reported that Allah’s Messanger (peace be upon him) said: A muhrim
shall neither marry himself nor arrange the marriage of another nor shall he
make a proposal of marriage.”
The
betrothal is only an agreement to enter into a marriage and does not constitute
a marriage itself. It is possible to any party to break the engagement, if
there was existed with the valid reason for doing so. However such agreement or
betrothal, should not be broken without a good reason. In the section 15 IFLA
1984 stated that “and
subsequently refuses without lawful reason to marry the other party, the other
party being willing to marry,”
As stated in the Holy Quran[5]
$yg•ƒr'¯»tƒ šúïÏ%©!$# (#þqãYtB#uä (#qèù÷rr& ÏŠqà)ãèø9$$Î/ 4 ôM¯=Ïmé& Nä3s9 èpyJŠÍku5 ÉO»yè÷RF{$# žwÎ) $tB 4‘n=÷FムöNä3ø‹n=tæ uŽöxî ’Ìj?ÏtèC ωøŠ¢Á9$# öNçFRr&ur îPããm 3 ¨bÎ) ©!$# ãNä3øts† $tB ߉ƒÌムÇÊÈ
Translation from Quran explorer: O ye who believe! Fulfil your
undertakings. The beast of cattle is made lawful unto you (for food) except
that which is announced unto you (herein), game being unlawful when ye are on
the pilgrimage. Lo! Allah ordaineth that which pleaseth Him. (1)
There is also a
Hadith saying of the Prophet (peace be upon him) to the effect.
وفي الحديث الصحيح المتفق عليه من رواية أبي هريرة : ( آية المنافق ثلاث : إذا حدث كذب ، وإذا وعد أخلف ، وإذا اؤتمن خان(.
Translation of
the Hadith: from abu hurairah, there are 3 signs of hypocrite, when they
talking they lies, when they promise they break the promise, and when he was
give a trust, he breach it.
Besides, there is
a Hadith also saying about it. “Muslims are bound by their promises and the
conditions which they are agreed to”
As we can see in section 15 IFLA[6] 1984 stated that “the party in default shall be liable to return
the betrothal gifts, if any, or the value thereof and to pay whatever moneys
have been expended in good faith by or for the other party in preparation for
the marriage, and the same may be recovered by action in the Court”
There
is variety of Hadith say that if a man has given a gift without expecting
anything from the person to whom it is given, then, he would not ask for it
back. But if the person had doing so intentionally, or expecting something from
the other side, then he can ask for the other party to return the gifts back for
breach the promised and condition to a marriage.
In
this respect there are various of views from the 4 mazhab school of law. The
Hanafi school of law takes the view where the betrothal gift are still intact
and has not changed their character or been consumed or destroyed, the giver
can ask for it back, if the breach is made by another party.[7]
In view from Maliki school, if the breach made by man, he has no right to ask
for returning his gifts, but, if its opposite way which is woman who is breach
the agreement, he can ask for it back, whether the gifts still exist or not. If
they have been destroyed, the value of the gifts shall be paid.[8]
In the
Syafie school, the view taken is that gifts should be returned whether they are
still existence or not. If the goods still exist, then it should be returned.
If the goods have been consumed, or used or lost, then the value shall be
returned.[9]
Conclusion
So, the provision existed in the Islamic
Family Law Act 1984 (Federal Territories) was based from Syafie school of law
and we used it till today based on that provision in Malaysia. Consequently,
the Family Law Act is corresponding with the Syafie school of law.
References
1. Dato’ Sheikh
Mohammad Nur Mansur, Ustaz Hj Azhari Othman. Terjemahan Alhidayah Al Quran
Al Karim. Cetakan ketiga. 2010. Selangor: Al-Hidayah House of Quran
2. H. Zainuddin
Hamidy, H. Fakhruddin HS. Shahih Bukhari. Vol I,ii,iii,iv. 2009.
Selangor: Klang book Center.
3. Sayyid Sabiq. Fiqh
Assunnah. Vol 2. _______. Kaherah: Alfathi Lili’lam Arabi.
4. Ahmad Ibrahim.
Family Law in Malaysia. Third Edition. 1997. Malaysia: Lexus Nexus.
5. ________. Islamic
Family Law (Federal territories) Act 1984 (Act 303). 2010. Selangor:
International Law Book Services.
[1] Sayyid sabiq. Fiqh Assunnah. Vol. 2. Kaherah:
Alfathi Lili’lam Arabi. p. 16.
[4] Shahih Bukhari. Kitab an-nikah. Vol 4. p. 12-13.
[5] Surah Almaidah
(5) : 1
[6] Islamic Family Law Act 1984 (Federal Territories) Act
303
[7] Sayyid sabiq. Fiqh Assunnah. Vol. 2. Kaherah:
Alfathi Lili’lam Arabi. p.21.
[8] Sayyid sabiq. Fiqh Assunnah. Vol. 2. Kaherah:
Alfathi Lili’lam Arabi. p.22.
[9] Ahmad Ibrahim. Family Law in Malaysia. Third Edition. 1997.
Malaysia: Lexis Nexus. p. 171
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