FMZ LWN. MFAR [2016] SLRHU 14

Syariah High Court of Kedah (Alor Setar)

Application For Permission To Register A Polygamous Marriage

1.    In this case, the Applicant was the second wife of the Respondent. They were married on 17 July 2008, at approximately 5:00 p.m. in the Songkhla Province of Thailand.  The marriage was solemnized by a wali hakim of the Songkhla Province of Thailand, with a dowry of RM 100.00.  The witnesses for the marriage were two Thai nationals, who were present during the ceremony.  Throughout the marriage, the couple did not have any children.  The Respondent had previously married his first wife, on 16 October 1998, in Akar Peluru, Kota Setar District.

2.    The parties entered Thailand through the Bukit Kayu Hitam border checkpoint using border passes on July 20, 2008, they obtained a Marriage Verification Letter from the Islamic Religious Council of Songkhla. Subsequently, on 22 July 2008, they received a Certificate of Marriage issued by the Consulate General of Malaysia in Songkhla, Thailand. At the time of the marriage, the Applicant’s actual wali, was said to be residing in Penang due to his employment as a security guard at an electrical factory.

3.    The Syariah High Court had thoroughly examined the parties’ application and listened to testimony from both parties. The court was satisfied and, with no further doubts, confirmed the marriage as valid according to Hukum Syarak. The marriage had met all necessary conditions of nikah, including the presence of a prospective husband and wife, a wali (guardian), two male witnesses, and the ijab and qabul (offer and acceptance of marriage).

4.    However, on 21 October 2013, the Applicant filed a case review application in the Kedah Syariah Court of Appeal, seeking the following orders:

(a)    Permission to review Case Mal  in the Kedah Syariah High Court;

(b)    An order for judicial separation between the Applicant and the Respondent; and

(c)     Any other orders deemed appropriate and just by the court.

5.    The Kedah Syariah Court of Appeal subsequently ruled unanimously that this case should be reheard by the Syariah High Court based on new facts released by the Songkhla Islamic Religious Council in Thailand on 26 September 2013, to establish the validity of the marriage certification.

1.    Whether the wali was more than two marhalah away from the place of the marriage contract during the marriage contract between the Applicant and the Respondent?

2.    Whether the Court could judicially separate the marriage between the Applicant and the Respondent?

1.    Whether the wali was more than two marhalah away from the place of the marriage contract during the marriage contract between the Applicant and the Respondent?

(a)         In this case, the Applicant married the Respondent on 17 July 2008, in the town of Danok in the Songkhla region, with Haji Zakaria, who served as the Deputy Syariah Kadi of Songkhla, officiating as the wali hakim (marriage guardian).  The marriage was conducted with a wali hakim due to the lack of consent and permission from the Applicant’s father.

(b)         The Court in this case referred to Section 11 of the Islamic Family Law Enactment (Kedah Darul Aman) 2008 (Enactment 11) –

“A marriage shall be void unless all conditions necessary according to Hukum Syarak for the validity thereof are satisfied as described in the Second Schedule to this Enactment”.

(c)   The court also referred to the book Fiqh al-Manhaji ala Mazhab al-Imam as-Shafie, page 51, which states that –

“The essentials of a valid marriage consist of five elements: sighah (offer and acceptance), the bride, the groom, the wali (guardian), and two witnesses”. 

(d)   The Court also referred to the book Mughni al-Muhtaj by Sheikh Muhammad Syarbini al-Khatib, volume 3, page 157, which discusses the issue of an absent wali-

“In the event that the closest wali (guardian) is absent, whether the wali is from the family line or is the liberator of the individual and is over two marhalah away (a distance that allows the shortening of prayer), and there is no representative present at the akad nikah ceremony, then the woman should be married by the Sultan of the region in which she resides or by the Deputy Sultan of that region. It should not be the Sultan of a different region, and the marriage cannot be conducted by a more distant wali according to the more authoritative opinion”.

(e)   The Court also referred to the opinion of the distinguished scholar Abu Bakr ibn Sayyid Muhammad Syata al-Dimyathi al-Bakri in the book Hasyiah I’anah al-Tholibin ‘ala Hall Alfazh Fath al-Mu’in, volume 3, pages 360-362, which stated, among other things-

“If the judge solemnized the woman because her wali was presumed absent, but it was later established that her wali had been present in the vicinity at the time of the marriage, the marriage would have been invalid if it was proven that her wali had been near the location of the ceremony.

The validity of the marriage would not have been affected by the wali’s mere assertion of being nearby; evidence was necessary to substantiate the claim”.

(f)     Even though the Applicant initially claimed her wali was in Penang, over two marhalah from the marriage venue.  But, she later asserted that her wali was actually at home in Air Hitam, supported by evidence such as witness testimonies and documentary evidence.  Given the uncertainty about the wali’s location and discrepancies between Exhibits P3 and D12 (both from the Majlis Agama Islam Wilayah Songkhla), the Court then concluded that it would be more appropriate and orderly for the Applicant to take an oath of Yamin al-Mutammimah as per the provisions of Practice Direction No. 2 of 2006 (Amalan Sumpah Mahkamah Syariah).

(g)   Therefore, in this case, the Court directed the Applicant to take an oath of Yamin al-Mutammimah despite having provided evidence. The purpose of the Yamin al-Mutammimah is to strengthen the Court’s Order and to affirm and accept the Applicant’s claims regarding her wali’s presence at the time of the marriage ceremony.

2.    Whether the Court could judicially separate the marriage between the Applicant and the Respondent?

(a)   Regarding the issue of judicial separation, the Court held that, generally, the Applicant’s father had the right to request the judicial separation of the marriage between the Applicant and the Respondent by filing a separate application under code 042 for that purpose.  However, this depended on whether the marriage between the Applicant and the Respondent was valid or otherwise.

(b)   The Court held that the issue of judicial separation did not need to be addressed because the matter of the wali’s whereabouts remained unresolved until the Applicant took an oath concerning her father’s presence at the time of the marriage ceremony.

    (i)        The Court held that the marriage between the Applicant and the Respondent that took place in the town of Danok, Songkhla Province, Thailand, was invalid under Hukum Syarak.

   (ii)        The Court also held that the marriage between the Applicant and the Respondent to be judicially separated.

Key Take Away

                     1.        According to the book al-Fiqh al-Manhaji, if the closest wali is within less than two marhalah, the Judge cannot proceed with the marriage without the wali‘s consent. This is because the short distance means the wali must be consulted for his consent, either to be present in person or to appoint a representative.

                     2.        In the case of a missing wali (wali ghaib), if there are multiple wali and the closest wali is located two marhalah or more away from the bride, the right of the wali is not passed to the next closest wali, but instead to the Sultan. This is the stance of the Shafi’i school of thought.