Engagement under Malaysian Islamic Law

An engagement is a promise of marriage made between a man and a woman.  In Islam, engagement happens when there is a marriage proposal from a man to a woman.  The proposal can be made by the man himself or through middleman.  A proposal can also be made to the father or guardian of the female mujbir.  When the man’s proposal is accepted, then the promise of marriage binds both of the parties.

Among the things that a man should pay attention to before proposing a woman is to ensure that there is no restriction to marry the woman i.e. the woman is not his mahram, or someone else’s fiancée or such proposal is not made during the iddah period. The men are also encouraged to choose a partner as taught by the Prophet PBUH in the hadith narrated by Imam Bukhari No. 4700-

“From Abu Hurairah radiallahu ‘anhu, from the Prophet PBUH, he said “A woman is married for four things, i.e., her wealth, her family status, her beauty and her religion. So you should marry the religious woman (otherwise) you will be a losers.”

Engagement Is a Contract

Basically, an engagement is a contract that binds both parties.  Each party must fulfill the purpose of the engagement, where they mutually promised to marry each other.  The duty to perform such promise based on the engagement is indeed enshrined in the Quran, where Allah says-

“O you who have faith! Keep your agreements. (Surah Al-Maidah:1)

However, there are situations where one of them breaks off the engagement without a valid or reasonable reason and causes loss to the other party.  In this respect, as per other contract, if one of the parties breaches any of his/her duties under the contract, then the other party is entitled to the damages resulted from suchdefault.

Engagement under Syariah Law in Malaysia

The provision on engagement is provided under syariah law in Malaysia. As an example, Section 15 of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) provides 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 the other party, the other party being willing to marry, 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.

The same provision is also provided for in the Islamic family law of other states in Malaysia such as the Islamic Family Law (State of Selangor) Enactment 2003, the Islamic Family Law (State of Malacca) Enactment 2002, the Islamic Family Law (State of Kelantan) Enactment 2002, and the Islamic Family Law (Kedah Darul Aman) Enactment 2008.

By referring to the provisions regarding engagement  as in the above Islamic Family law, it can be presumed that in any given situation where one of the parties breach the promise to marry the other party without any valid reason, the other party may claim against the party who has breached the promise for the loss suffered due to such breach.  This claim may be made in the Syariah Court.

One of the claims that can be made against the party who breached the promise is to return the engagement rings or jewellery. In addition, the law also allows the injured party to claim for any money spent in good faith for the purpose of wedding preparation.  This includes but not limited to the booking of wedding dresses, the booking of the hall and the couch, and the cost of repairing the house.

In the case of Aisyah v Jamaluddin (1978), the man called off the engagement. Following that the Plaintiff had made a claim of RM25.00 as dowry (mas kahwin), RM800.00 for the wedding expenses incurred and also demanded for the ring given by the Defendant during the engagement to be kept by the Plaintiff. Kadi Besar Kedah in this case allowed the claim by the Plaintiff. In addition, Kadi Besar Kedah also ordered the Defendant to pay to the Plaintiff the cost of the wedding dress as well as RM400.00 as the cost incurred by the Plaintiff to repair the house for the wedding preparation. Meanwhile in the case of Salbiah Othman v Haji Ahmad Abdul Ghani (2002), the man in this case also called off the engagement and broke the promise to marry the Plaintiff.  The Plaintiff the had claimed damages of RM 200,000.00 as a result of the engagement breakup. The Plaintiff also claimed damages for expenses incurred for the preparation of the engagement and wedding with the amount of RM 9,677.00. However, the Syariah Court in this case rejected the claim for damages and allowed only for part of the claim for the preparation of the engagement and wedding of RM 6,277.10 i.e. the cost of the wedding dress, the bridal dressing, the curtains and sheets, the deposit of the tent and bed, as well as the invitation cost which includes groceries.

However, in the case of Hussin v Moh (1980), the Kadi Jajahan Pasir Mas Court ordered the man to pay RM350.40 as damages for the cost of marriage expenses incurred by the Plaintiff. However, during the appeal, the Court ruled that the agreement to marry was violated by the woman side and not by the man side.  Therefore, the Plaintiff was not eligible for the damages claimed.  Based on this case, only defaulted party is entitled from the damages cause by any break-ups.

Conclusion

Engagement is a mutual promise that should be respected and maintained by both parties. Nevertheless, in unavoidable situations, there are circumstances where the engagement should be called off. Should the breach of the engagement is caused by one of the parties without any valid reason, then the other party may make a claim against the defaulting party in the Syariah Court.

Prepared by,
Nur Syaheerah
Messrs Misyail Othman & Co.

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