Family law.
As I grew older and older day by day, I was wondering what I was going to do with my life. Until today I haven't be that 'someone'. By reading quite a few local blog posts, one thing that I had just realized. They did achieved their main duty as a human being in contributing to the society. As for me, I had resigned from my previous job and I chose to stay at home taking care of myself and of course - my soon-to-be-born-baby.
Since my previous job required me to be active and fast, I had decided to resign due to the fact that I was unable to cope with that particular job since I was pregnant.
Being married had taught me a lot. One of the wonderful thing in my marriage was that, I had finally attracted to the subject of Marriage and some family disputes. Those attraction had made me to be an attorney in the field of family-related matters. I was so thankful to be married at such a right time (for me) in which, I was doing my Family Law subject during that particular year and this year was so great to continue my study in the second part of the Family Law.
Indeed, during high school, we were taught on the marriage subject but honestly, I was not really interested in it. At that time, I was so in love with the Fiqh subject (Islamic rulings on our daily basis activities). Since I am now married, my attention had been diverted to deeply acknowledged the family-related matters.
In UiTM, as I am one of the out of campus student (in contras with the full time student), the Family Law subject had been divided into two part. The first part is Family Law 1 (Islamic) and the second part is Family Law 2 (Civil). The division of this particular subject is base on (maybe) the courts jurisdiction and the registration of the marriage itself according to the religion of a person.
So here, I am going to share my assignments answer script prepared for my Family Law 1 (Islamic) assignment. (Even though I actually scored a C in both Family Law). 😅
QUESTION 1(a)
In June 2014, Maisha aged 17 years, was engaged to Ahmad, aged 30 a doctor. The couple plan to marry in January 2015.
Maisha's father, Haji Kadir, was the only son of Haji Masdon. In September 2014, Haji Kadir left for Surabaya in Indonesia to close a business deal. The trip also involved a visit to the business site, which was near a dominant volcano. On the day of his visit, however, the volcano erupted and emitted poisonous gas and molten lava. Haji Kadir died after inhaling the poisonous gas.
Haji Masdon was greatly saddened by his son's death and suffered a heart attack. He died a week later. Maisha's brother, Amin aged 21, who is studying in Syria, has joined a militant group there and could not be contacted. Apart from that, Maisha has two maternal uncles who lived nearby.
Advise Maisha who could be her wali. State the reasons for your answer. (10 marks)
ANSWER
There are several issues arise in the situation given. Firstly, whether Amin, Maisha's brother could be her wali. Secondly, whether Maisha's two maternal uncles could be her wali. Thirdly, whether Maisha can apply for transfer of perwalian khassah to perwalian ammah (wali raja).
In order to determine whether Amin could be Maisha's wali, Amin must fulfilled all the wali requirements. Since Maisha's father, Haji Kadir died, and her grandfather, Haji Masdon also died, Amin as Maisha's brother is the wali left for Maisha. However, in this situation, Amin cannot be contacted as he is studying in Syria.
Since a wali is one of the rukun of marriage according to the Shafii school, it is also essential that the wali who acts to contract the marriage should be the proper wali.
The order of priority of a wali nasab is set out in Paragraph 4(d) of the Fourt Schedule to the Kelantan Enactment. A wali abaad (distant wali) has no authority to act when the wali akrab (near wali) is alive and capable of acting as wali. This means, the wali akrab is not a minor, is not mad or of unsound mind, is not fasik and is not of a different religion from the woman.
In this situation, even though Amin is still alive, his current situation shows that is is impossible for him to be Maisha's wali as he is studying in Syria, joined in a militant group and cannot be contacted. The fact that he is staying far away from Maisha, and cannot be contacted, in this circumstances, Maisha can apply for perwalian ammah or known as wali raja. This is because her wali nasab, Amin, lives 60 miles away from her which is in Syria and he cannot be contacted.
However, if Amin can be contacted, Amin should be the one to be her wali. The fact that Maisha's grandfather had died also support that Amin is eligible to be Maisha's wali. In the case of Ismail Abdul Majid v Aris Fadilah (1980) 5 JH 326, the court held that, a marriage that was contracted with the woman's brother acting as wali was held to be invalid as the woman's paternal grandfather (wali akrab) was still alive and he was not senile but was of sound mind and perfectly capable of acting as wali at the time the akad nikah was conducted. In applying this case to the situation given, Haji Masdon, Maisha's paternal grandfather had died and the priority of wali akrab had transferred to her brother, Amin. Since her father, Haji Kadir, was the only son of her paternal grandfather.
Nevertheless, the fact that Amin is studying in Syria, and cannot be contacted, make it impossible for him to be the wali for Maisha in the current situation.
For the second issue, whether Maisha's maternal uncle could be her wali.
Maternal uncle means the brother or brother-in-law of one's mother.
According to the list of priority of a wali as stated in the Kelantan Islamic Family Law Enactment 1984, only the paternal grandfather and the paternal uncles are being listed to be a woman's wali. The last priority listed after the paternal uncle is the Ruler or Sultan (wali raja); and not the maternal uncles.
Even though the fact stated that, Maisha had two maternal uncles live nearby, her maternal uncles are not eligible to be her wali as the Syariah law required paternal uncles to be eligible to be a woman's wali. This is due to the fact that, maternal uncles are not fall under wali nasab, wali abaad, or even wali akrab.
Thus, Maisha's two maternal uncles who lived nearby could not be Maisha's wali.
Thirdly, whether Maisha can apply for perwalian ammah (wali raja).
According to Section 13(b) of the Islamic Family Law (Federal Territories) Act 1984, the wali Raja (wali hakim) may act to consent to a marriage wherever there is no wali by nasab in accordance with Hukum Syara' available to act or if the wali cannot be found or where the wali refuses his consent without sufficient reason.
Paragraph 2(g) of the Fourth Schedule to the Kelantan Enactment states the position in rather greater detail; it provides that perwalian nikah is transferred to the wali Raja when wali nasab is not available, or when wali nasab lives two marhalah (60 miles) away or more, when the whereabouts of wali akrab is unknown and no order for presumption of his death has been made, or when the wali akrab (unreasonably) refuses to be wali, or when wali akrab is within ihram haji or umrah, or when wali akrab himself is to be married to the woman concerned.
By applying to the above statute, Maisha can apply for perwalian ammah (wali Raja) because her wali is not available since her father, Haji Kadir and her paternal grandfather, Haji Masdon are both died. Her father is the only son of her grandfather which means, there is no paternal uncle available. Secondly, even though Amin is Maisha's wali nasab, he is currently studying in Syria and cannot be contacted which means, he is staying more than 60 miles away from Maisha. Thirdly, the absence of wali akrab; that is, Amin whereabout is unknown and it is not known whether he is alive or dead either because he had gone to war or due to an accident or was captured by the enemy or any other cause, and no order of presumption of his death has been made by any Kadi; but if such an order has been made, his perwalian shall be wali abaad and not wali Raja. This means, Amin who had joined a militant group cannot be contacted and falls under this category for reasons of perwalian ammah (wali Raja).
Thus, by fulfilling all the reasons for transfer of perwalian khassah to perwalian ammah (wali Raja), Maisha can still be married without having to wait for Amin, her brother's presence due to the fact that, Amin who is studying in Syria, joined a militant group and cannot be contacted. Furthermore, due to the fact that her father and her paternal grandfather were both died; and his father is the only child of her paternal grandfather.
In conclusion, the priority lists of the wali must be followed accordingly as it is the requirements that is obliged to be followed by all Muslims; as in the given situation, Maisha last option is to apply for wali Raja as her wali nasab are not available.
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For your information :
Wali (plural is Awlia) means 'to be near' and waliya 'to govern, rule or protect someone'.
A protector, benefactor, companion, friend. A guardian, a person who has responsibility for another person, used particularly for the person who 'gives' a woman in marriage.
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As the above assignment was being prepared at the very last minute, it was not being answered in detail as how I answered my first year assignment, the Law of Contract (that I had been posted earlier).
I hope by sharing my assignment script here might assist us in our basic knowledge of our Muslims marriage matter.
That's all! 💬