Kamariah bt Ahmad v Nur Asmira Bte Abdullah [2015] 3 SHLR 21

 

KAMARIAH BT AHMAD V NUR ASMIRA BTE ABDULLAH [2015] 3 SHLR 21

Shariah Subordinate Court (Melaka)

Minimum age of marriage

Facts

1.  The mother (“the First Applicant”) and the daughter (“the Second Applicant”) were seeking the permission of the Court to solemnise an underage marriage.

2. The application was made pursuant to Section 8 of the Islamic Family Law (Malacca) Enactment 2002 –

“8. Minimum age for marriage

No marriage may be solemnized under this Enactment where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syarie Judge has granted his permission in writing in certain circumstances”.

3. The application was made because the Second Appellant had not obtained the minimum age of marriage as she was 15 years old and 2 months and could only marry with prior written permission from the Syarie Judge.

Issue

1. Whether the Court should allow the application made by the First and Second Applicants?

Ratios 1.    The First Applicant’s contention

(a) The First Applicant was not keen on the said marriage as her daughter was still schooling but her future son in law insisted to marry the Second Applicant for the reason that they are often together.

(b) Due to that reason, the First Applicant agreed to the said marriage as she felt that marriage would be the best way to avoid any unpleasant things between her daughter and her future son in law.

(c)  Both families had reached an agreement to marry the Second Applicant and the future husband on 28 December 2012 and all the wedding preparations had been arranged.

2.     The Second Applicant’s contention

(a) The Second Applicant contended that the reason she applied for permission to get married is mainly because she wanted to protect the dignity of both families from any defamation since she is often seen together with her future husband.

(b) The Second Applicant also mentioned that she had known her future husband since she was 13 years old (form 1) and her future husband is working in Carrefour and a kind person.

3.  The Witness statement

(a) The Witness in this application is Mohd Ijjmudin bin Razak, 18 years old, the Second Applicant’s future husband.

(b) The Witness mentioned that he is willing to marry the Second Applicant despite that she is born out of wedlock.

(c)  He also added that, both families have given their blessings for the marriage.

4.  The authorities referred by the Court

(a) Surah Al-Nisa, verse 6

“Test the orphans until they reach the age of marriage, and then if you find them mature of mind hand over to them their property, and do not eat it up by either spending extravagantly or in haste, fearing that they would grow up (and claim it). If the guardian of the orphan is rich let him abstain entirely (from his ward’s property); and if he is poor, let him partake of it in a fair measure. When you hand over their property to them let there be witnesses on their behalf. Allah is sufficient to take account (of your deeds)”.

(b) Surah Al-Nur, verse 49

“And when your children attain puberty let them ask leave to come to you like their elders used to ask leave. Thus does Allah clearly explain to you His Signs. He is All-Knowing, All-Wise”.

(c)  In the book of Jenayah Kanak-Kanak Menurut Undang-Undang Islam by Alwi Hj Abdul Rahman, in determining the age limit for an adult,

(i) Imam Shafie is in the opinion that the age limit is when-

(aa) apabila seorang kanak-kanak lelaki atau perempuan mencapai umur genap 15 tahun qamariyah;

(bb)  pendapat kedua apabila kanak-kanak tersebut mulai berumur 15 tahun; dan

(cc) pendapat ketiga (Riwayat Al-Subki) enam bulan selepas kanak-kanak tersebut mencapai umur 15 tahun.

(d) Section 2(1) of the Islamic Family Law (Malacca) Enactment 2002 defines-

“baligh” means the age of puberty in accordance with Hukum Syarak;”.

5.  According to Imam Abu Yusuf and Imam Mohamad Al-Syaibani, based on Surah An-Nisa verse 6, if a boy discharge semen in sleep, he is considered as an adult.

Decision

1.  The Court allowed the Second Applicant’s application for the proposed marriage.

Key Take Away

1.Under the Malacca State Islamic Law, even though the marriageable age is 18 for boys and 16 for girls, the Syarie Judge has the authority to give consent to those below the permitted age to get married.

2.   Although  the  Islamic  family  law  in  Malaysia allows  underage  marriages,  it  cannot  be  easily  carried  out  without taking  into  account  the child’s best  interest.

3. As for this case, the Court has considered the evidence of the parties and the prospective groom in allowing the marriage application.

 

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