Islamic Law Notes
1. Marriage is a contract entered into by a man and a woman
to live as husband and wife.
AQ
Al Rum (30:21)
Al Nahl (16:72)
An Nisa (4:1)
Sunnah
1. “Modesty is part of faith.”
2. “Men marry women for their piety, or their property, or
their beauty, but you should marry for piety.”
3. “There is no celibacy in Islam.”
Choice of partner
and the power of Ijbar
- A man shall see the intended bride before betrothal
AQ: (24:30) and Baqarah (2:232)
- The partner should be the one with the most piety
(according to hadith)
- No concept of courtship (a period where couples develop a
romantic relationship with a view to marry).
- Consent of the parties – power of ijbar is granted to the
wali.
Legal rulings
i) Wajib – If the
man can’t control his sexual desires. It becomes compulsory for him to get
married.
ii) Haram – If
the person knows for certain that he or she cannot fulfill the duties in
marriage. If he is financially unstable or if he has a tendency to commit
violence then it is prohibited.
iii) Makruh – If
unable to fulfill the spousal duties. If he thinks he is not fit enough to
carry out his marital responsibilities.
iv) Mandub – recommended
as provided in the Hadith of PM.
Pillars of nikah (marriage
is invalid if at least 1 of it is not fulfilled)
i) Man,
ii) woman,
iii) 2 male witnesses,
iv) wali,
v) ‘aqad or utterance of words (ijab and qabul) (offer
and acceptance).
1. The man and woman must be a real man and woman (not a
person who has undergone sex change operation).
2. Both male and female upon entering the contract of
marriage must give free consent (free from obstacles). Must be identified i.e.
they must not be in prohibited degrees of marriage according to an-Nisa (4:23-24).
Permanent prohibition:
i) Blood relationships – includes mother, stepmother,
grandmother, daughter, son, sister, brother, etc.
ii) Marriage
iii) Sucklings – If a mother breastfeeds a child from
another mother. The biological child and the other child are within prohibited
degrees.
Temporary prohibition:
i) 2 sisters at one time
ii) married woman
iii) 4 wives at a time
iv) A woman during the period of ‘iddah.
Wali – a legal authority is vested in a person fully
qualified and competent to safeguard the interest and rights of another person
who is incapable of doing so independently. In accordance with priority:
father, grandfather, brother, uncle and cousin.
Conditions to be a wali
i) Not a fasiq person; meaning a fair and just person.
ii) Must be a person who performs the hajj or pilgrimage.
Hadith: ‘No woman may conduct a marriage contract of another
woman, no woman may conduct the marriage contract on behalf of herself.
3 types of Wali
i) Wali Mujbir/ nasab
- guardian by force (paksa). Force to marry a man of his
choice. Full power to endorse a marriage on behalf of everyone under his care.
Syafie school: Although the wali may marry off the virgin
daughter without her consent, it is recommended to ask for her consent.
In the case of a daughter being widowed or divorced, the
wali mujbir may not have full power to force to enter a marriage unless by a
clear permission from the widow or divorcee. A widowed woman has more rights
than her guardian. As for the virgin woman, it is recommended for the father to
ask permission from such woman and her silence is her consent.
ii) wali ab’ad /
akrab
Person other than the father or grandfather. Can’t force the
marriage.
iii) wali raja/hakim
- person which has been conferred authority by the Sultan
or State to marry a woman who has no wali from a family (male side).
If there is a refusal to marry the daughter from wali
mujbir or nasab, bring the case to court and wali hakim can be utilized. If
wali ab’ad disappeared or went missing, wali hakim takes its place in the event
of the bridge’s conversion.
Conditions for witnesses are similar to that of a wali,
i.e. not deaf, a Muslim and etc.
‘Aqad refers to the solemnization of marriage. It refers
to ijab and qabul, i.e. offer and acceptance. It is conducted by a wali.
Polygamous marriage
It is a system of marriage where a man has more than 1 wife.
It is recognized in Syariah law with restrictions. (4:3), (4:129)
It is permissible to have up to 4 wives provided certain
conditions are fulfilled. The PM took orphans and widows as his wives which
made it permissible. To contract a polygamous marriage, there is a need to
provide reasonable justifications, i.e. not to satisfy his own desires.
Justifications:
1. The wife is a barren. It may make the husband suffer from
deprivation from being a father. The alternative is to take another fertile
wife.
2. Wife is ill due to an incurable disease for e.g. It
restricts the husband from having sex.
(4:129)
It states that you are never able to be fair and just to
women even though it is your ardent desire. The verse shows that it is
discouraged to have polygamous marriage as treatment towards the wives may
differ. The husband may not be able to financially or physically support the
wives.
Interfaith marriage
- Non-Muslims must convert for them to contract a marriage (2:221). It is not recommended for a
Muslim to marry a non-Muslim unless or until the non-Muslim converts.
Mut’ah marriage / temporary
- Mostly done overseas. It is a kind of marriage contracted
between a man and a woman that specifies how long the marriage will last. The
beginning and end of the marriage is specified. The solemnization of marriage
follows that of the akad nikah. The majority of Muslim jurists do not recognize
such marriage as they find it illegal. It is practised by the Shiah school and
they based it on a hadith:
‘Temporary marriage was allowed at the beginning of Islam. A
man comes to a town where he has no acquaintance, so he marries a wife for a
fixed time depending on his stay in the town and after the fixed time ended, he
divorced her.’
It was rejected by the Sunni schools as the chain of
narrators was weak. It was a Hadith dhaif. They used another Hadith to oppose
that hadith. It indicated that the PM forbade the practice of nikah mut’ah.
Hadith by Muslim:
Prophet has forbidden temporary marriage on the day of khaibar.
Hadith by Ibnu Majah: PM has said that I swear by the name of
Allah, if I find anyone who engages in Mut’ah marriage, I will have him lashed
for 100 stripes.
Mut’ah marriage is prohibited. Shiah school recognizes the
needs of men who travel abroad without bringing their wives. It is to prevent
them from committing fornication by getting married. No divorce or other
obligations, i.e. no inheritance and etc. If they have kids, the mother will be
the person who will provide care.
Misyar marriage
A type of marriage contracted between man and woman which is
valid but it is not recognized in certain situations. The woman would waive
certain rights that she should have had in a normal Islamic marriage. It is
contracted usually for the sake of having a legal and sexual relationship only.
It is sort of a legal prostitution.
According to Yusuf al-Qardhawi, the misyar marriage is
recognized to a certain extent. It is acceptable if the woman is of older age
(spinster). It may serve a good purpose for them to contract misyar marriage,
i.e. to have an offspring of their own. They do not need a man to support them
financially.
Child marriage
- Underage marriages. 16 years for girls and 18 years for
men. It is permissible to a certain extent. However, the possibility of child
exploitation is high. It is permissible in IFLA but must get the permission in
court.
Talaq
It is to untie or release the matrimonial knot by uttering
words that denote divorce.
4:19, 4:128, 4:35
Divorce is discouraged in Islamic law. It brings negative
effects to the family ties, to the couple and the children.
There are 2 ways to pronounce talaq:
1. Sarih – when the husband says the word talaq or divorce
to his wife clearly, free from ambiguity.
2. Kinayah – indirect, ambiguous, can be interpreted in more
than 1 way. For instance, it is uncertain as to whether the husband was
divorcing her or not. It is brought to the syariah court to determine whether
the husband meant to divorce his wife. For e.g. ‘I do not want you anymore’ can
have more than 1 meaning. The Court will look into the intention of the
husband.
Talaq Raji’e
- A revocable divorce.
Talaq Ba’in Kubra / talaq 3 – irrevocable divorce.
Talaq 1 and 2 – can still reconcile the marriage. After this
talaq, the wife goes into ‘iddah period. Within that period they can reconcile
the marriage without going through adat nikah. If done after the iddah period,
then the parties need to go through the solemnization of marriage (adat nikah)
again.
Talaq 3 – it will be an irrevocable divorce. It cannot be
reconciled between the parties unless the wife marries another man and divorces
that man. Then the parties can remarry again.
(2:230)
Khulu’
It means redemption. The wife can request the husband to
divorce her. The wife pays the husband some money, or in kind. If such amount
is agreed upon, then the court will assess the amount in accordance with the
means of the parties. Perhaps if the wife can’t be obedient towards the husband
in marriage, i.e. if she has a boyfriend for example, then this is a good way
of divorce.
Fasakh
It is also a type of divorce for women to seek. It is an
annulment of marriage that is granted by the court after hearing the wife’s
complaint in court. This kind of divorce is done if the husband refuses to
divorce the wife. Section 49 of IFLA.
Reasonable justifications are needed for a valid fasakh to
be granted. For example, ill-treatment by the husband, the husband can’t
support her financially, he is impotent, he forces the wife to indulge in
immoral activities and etc.
Ta’alik
- It is a conditional divorce. A kind of divorce when the
husband breached certain conditions or promises made to the wife.
i) Conditions stipulated in the marriage certificate. After
the marriage the husband has to read certain conditions. For instance, if the
husband fails to provide maintenance to the wife for 4 consecutive months, they
are automatically divorced.
ii) Type of conditions given by the husband and agreed by
the wife during the course of their marriage.
Li’an
It is an affirmation given by the husband to the wife in
court confirming that the wife had committed adultery or an oath to deny that
the baby that is carried by his wife is his. It is followed by the same oath by
the wife confirming to the contrary. The court will announce a major separation
meaning the parties cannot get back together anymore.
Al Nur (24:6,7,8,9)
Zihar
It is a divorce when the husband similarises the wife with
his mother. It is haram and when such is uttered, a divorce will occur.
However, this type of divorce is not recognized by the Sunni school.
Ancillary claims
1. Muta’ah
- It is compensation or something that is given by court
order, by the ex-husband to the ex-wife for the purpose of bringing pleasure
upon divorcing her. It is only given to the wife unless she is (i) nusyuz; or
(ii) she was divorced by way of khulu’.
Nusyuz – unreasonably disobeying the lawful wishes or
commands of the husband
Baqarah (2: 236,
237, 241)
(33:49)
2. Nafaqah –
maintenance for the ex-wife and children
Ex-wife
- The ex-wife is entitled to get a reasonable nafaqah
from the ex-husband during the iddah’ period. It is given once the divorce is
finalized by the court until the end of iddah’ period.
- It is prescribed in Nisa (4:34) that ‘Men are protectors and maintainers for women’.
Baqarah (2:233)
(65:7)
- The maintenance will cease if the wife dies. To
determine the amount for nafaqah, the court will look at the capability of the
husband and the wife’s financial needs.
Children
- The children are entitled to get nafaqah from the
father even though the children decided to stay with the mother or other
appointed persons.
- It’s not only about the financial needs, but also
sufficient accommodation, food, clothing, medical treatment, education and etc.
It is provided according to the husband’s means.
- It expires when the child reaches the age of 18 but it
is not absolute. The court may extend the duration for the payment of nafaqah
under special circumstances, for e.g. disabled children.
3. Hadanah/
Custody/ Guardianship
- Upon divorce, if the child is 2.5 years or younger, the
child is usually given to the mother due to breastfeeding. When the child
reaches the age of Mumahyis, i.e. when the child can differentiate good and bad
(7 years old for male and 9 years old for female), the child will be given a
choice as to who they will choose to be wish: the mother or father.
- The Court in reality will decide based on the welfare
of the child. The Court will choose the guardian or Hadinah where he or she is
a Muslim, of sound mind, matured, of good behaviour and environment.
4. Mahr / Dowry
- It is an obligatory marriage payment from the husband
to the wife during akad nikah. If it is not paid during the marriage and after
divorce, the husband has to still pay mahr to the ex-wife. The wife, however,
can waive the right to mahr. The payment of mahr is made in money or in kind.
5. Matrimonial
Property / Harta Sepencarian
- It refers to assets from both parties to the marriage
acquired during the marriage. The Court will divide the proceeds of sale
between the parties.
(i) Boto v Jaafar
and (ii) Roberts v Umi Kalthum
- It was held that if the wife didn’t contribute
financially, her duties as a wife is considered. The assets must be divided
proportionately.
Fiqh Jinayah
Elements of a crime
1. Legal element
- A clear provision describing the prohibition of the
act. It prohibits the act that constitutes the offence and specifies the
punishment.
- For e.g. in Maidah (5:38), it is a clear provision
for the punishment of theft : amputation of hands.
Al-Nur (24:2)
is also a clear provision for adultery or fornication punishment, i.e. 100
stripes of whipping. The punishment for married adulterers is death by stoning
according to the Hadith.
2. Actus reus/
Adabi
- can be divided into intentional offences and
unintentional offences.
Types of crime
1. Hudud
– fixed punishments in the AQ and Sunnah, The punishment cannot be altered.
a) Adultery
- A wilful sexual intercourse between a man and a woman
who are suspected to not have any valid marriage to each other. It is
prescribed in (24:2). To prove
adultery there must be 4 male witnesses (4:50).
- If use
second source of evidence, then maybe the adulterers will be punished under
ta’zir. Pregnancy out of wedlock is an evidence for adultery. Other offences
such as bestiality, incest and etc are ta’zir offences. In Kelantan, the
preliminary act of zina is recognized as an offence.
b) Qazaf (false
accusation of adultery)
- It is an act of accusing someone of committing adultery
without 4 male witnesses (24:4, 24:5)
Requirements:
i) The accuser and the accused are adults
ii) They must be Muslims
iii) They must be of sound mind and have reached the age
of puberty
iv) The accuser done the accusation based on free will
v) The accused must be identified
- The accuser has to take on oath 4 times to avoid Qazaf
punishment. He must take an oath (yamin) or li’an oath if he accuses without 4
male witnesses.
(24:6-9)
- He can also make a confession
c) Theft (Sariqah)
- It is defined as the taking away of property belonging
to another person surreptitiously or secretly/discreetly. Maidah (5:38)
Elements:
1. AR : offender must have taken and moved the stolen
property quietly from the custody of the owner.
2. The property taken must reach the prescribed value. It
was prescribed by ijma’ of the jurists, i.e. quarter of dinar of gold or 3
dirhams of silver. It is equivalent to + RM 750-800.
Hadith: ‘The
hand of a thief shall be cut off for stealing a quarter of dinar of gold’.
3. MR: It was done with free will, without any force or
coercion. However, in the Hadith it
is stated:
‘My people have been exempted from liability if it was
done by mistake, coercion or forgetfulness.’
4. The property must be in custody, i.e. it must be
protected or guarded. For e.g. the item was kept in a building or guarded by
security.
Standard of proof: There must be testimony from 2 witnesses.
There should also be secondary or corroborating evidences.
d) Dacoity and
robbery (hirabah)
- It is the act of taking and moving away property openly
by using force or extortion. It may include 1 or more persons in such
commission.
- The elements are the same as theft. However, the AR
differs as it is done with force or done openly.
- The punishment is in Maidah (5:33, 34), i.e. execution, crucifixion, exile, or cutting
off the feet and hands. It is based on the seriousness of the offence. The judge
will decide according to his discretion. The most favoured approach is
banishment.
- Evidence: confession or testimony of 2 witnesses.
e) Khmar (wine
drinking)
Maidah (5:90) –
wine and gambling are of the work of satan.
- Its punishment is prescribed in the Hadith, i.e. ‘Every intoxicant is
prohibited. I curse he who drinks, purchases or sells wine or causes others to
drink it.’
- Khmar refers to fermented drinks from the grapes or
dates/kurma.
- According to the Hanafi school, other juices or drinks
that are fermented cannot be considered as ‘khmar’. Thus, if the person
consumes this, he is not liable for hudud punishment; instead, he will be
liable for ta’zir punishment.
- According to the 3 other schools, if a person takes any
drink that induces intoxication either taken in large or small quantity, he is
liable for hudud punishment.
- The punishment is whipping with 40 stripes according to
Abu Bakar.
f) Apostasy
(Riddah)
- Apostasy simply means the abandonment of Islam. It can
be shown by the way the person refuses to admit that Islam is his religion or
refuses to practice it. Majority of jurists argued that the apostate should be
given the chance to repent, i.e. to come back to the Islamic religion.
- The punishment of apostasy is divided into 2 views.
First view is based on the Hadith:
‘kill the person who abandoned his religion’.
- The second view is that the scholars deny or reject the
Hadith used above as they concurred that it was a weak Hadith (dhaif).
- By adopting the 2nd view, time and space is
given to apostates to repent or for rehabilitation. If they choose to renounce
Islam, then so be it.
- The Syariah court rejected the application to change
the religion based on recent cases (Lina Joy).
- Apostasy is punishable in ta’zir.
2. Qisas
- It refers to crimes of retaliation and blood money
(diyah). It is the type of crimes where the punishments are prescribed in the
AQ and Sunnah but it can be altered or remitted by the victims or by the
victims’ heirs.
- It includes murder, culpable homicide, hurt and etc. If
the victim pardons the offender, then the punishment can be reduced based on
the victim’s permission.
A) Murder –act which causes the death of another:
i) the victim must be a living human being
ii) the victim must have died as the result of the
accused’s act
iii) the accused has the wilful intention of causing the
death of the victim. For e.g. look at the kind of weapon (the means) that may
cause the death of the person.
iv) the requirement of the offender: the accused must be
an adult and sane person. If the offender is a minor, i.e. below 16 years old
according to the Shafie school, then he is punishable under ta’zir.
- The punishment is prescribed in Maidah (5:45), Baqarah (2:178), and (17:33)
B) Culpable homicide/ Quasi-intentional murder
In syariah law, culpable homicide occurs when someone who
intentionally makes another person the direct object of some action that is
normally fatal and the victim dies.
1. MR: The offender must have the intention of causing
bodily harm to the victim and has no intention of causing death to the victim.
2. AR: The act of the accused or possibly the weapon
which is not likely to cause death in the ordinary course of nature.
3. The victim died as a result of the act of the accused.
Hadith: ‘If a
person kills another by throwing stone, by a whip or by a staff, its diyat will
be 100 camels. It is paid either in lump sum or instalment for 3 years.’
- In reality, diyat is paid in money. 1 camel is worth
around RM 2.5k – RM 3k. The punishment for murder is death. If the heirs
forgave the murderer, then the punishment is reduced to the payment of 100
camels.
Maidah
(5:45), an-Nahl (16:126)
Jurists concurred as well that if discretionary
punishment (ta’zir) is to be imposed on the offender, is for the sake of public
interest.
C) Murder by Negligence
- It is a kind of crime where someone with no intention
to cause any harm or death to the victim but it eventually caused death to the
victim either by negligence or by mistake. For e,g, a person wrongly shot at a
deer which was actually a man.
1. MR: the accused person has no intention to cause death
2. The accused must have committed some fatal action
which caused the death of the victim.
3. The victim died as a result of the accused person’s
action.
D) Causing bodily injury to person / hurt
AR: caused bodily injury to a person or caused the
dismemberment of the victim, or illness and etc.
MR: intention
Impediments to
Qisas
(a) Forgiveness of the victim/heirs
General rule:
if a victim or his heir decides to forgive the victim, then the criminal does
not need to serve the death penalty.
Rationale:
Show the compassionate side of God, and to encourage the culture of forgiveness
in the society if the family wishes to do so.
AQ:
Baqarah (2:178)
Isra (17:33)
Maidah (5:45)
(b) Child offenders
Nisa (4:6) –‘And
test the orphans until they reach (the age of) marriage. If you perceive in
them right judgment, hand over to them their wealth’.
- Based on the verse, can argue that if children cannot
be trusted to be able to protect their wealth due to lack of maturity, then they
cannot be liable for their crimes due to the lack of maturity.
Sunni: When
children commit offences punishable under Qisas, the punishment for Qisas would
not be imposed on them. They would be punished by ta’zir laws, meaning that the
courts would have the discretion to decide the punishment that would be imposed
upon the child. This punishment applies to children below the age of 16. This
view is practised in Malaysia.
Rationale:
Children should not be punished with Qisas because they do not have the
maturity of mind to understand the nature of their actions.
(c) Offenders of unsound mind
- In order to be punished under Qisas law, the accused
must be a sound person. If an insane person kills another, then his family or
relatives will have to pay Diyat on behalf of him.
- Note: persons who murder another in the state of
drunkenness are not exempted from Qisas. This is because the consumption of
alcohol is prohibited and the consumption is voluntary. Therefore, the state of
drunkenness was brought onto himself.
Baqarah (2:286)
(d) Absence of intention or malice
- This part covers murders by accident, negligence or
mistake. If there was no intention to take the life of another, qisas
punishment would not be imposed; the accused would be asked to pay Diyah
instead.
- Example of crimes under this view: quasi-intentional
murder and murder by negligence
- Majority of jurists: the presence of intention can be
deduced from the type of weapon used. If it is likely to cause death (gun,
knife, or etc) then the intention to murder may be established.
Nisa (4:92, 4:93)
Hadith:
‘Whoever eliminates a believer by mistake (let) he go with no cost of life and
pay diyat to his household (which he killed), unless they (family killed)
forgive him in the name of charity’
(e)Special circumstance
- Example: if someone damages the eye of a ‘Peeping Tom’,
no sin is incurred.
Hadith: ‘If
someone is peeping into your house without your permission, and you throw a
stone at him and destroy his eyes, there will be no sin on you’.
3. Ta’azir /
crimes of discretionary punishments
- punishments are not fixed in AQ and Sunnah. It is left
to the discretion of legislators or judges. It is based on Nisa (4:123).
Types of crimes:
- Anything not fixed in AQ and Sunnah about its
punishment. For example, extortion, Criminal Breach of Trust (CBT), spying,
spreading of obscenity, slander, concealment of evidence, trespass, computer
crimes and etc. Any violation of the offences prescribed by the ulul amri
(authorities: legislator, judge, etc), then the accused will be punished
accordingly.
- The second type of crimes can be referred to those
where the punishment is in AQ and Sunnah, i.e. Hadd and Qisas, but the
punishment is ta’zir simply because it didn’t fulfil all the requirements or
evidences prescribed for Hadd or Qisas.
Aims of
Punishment
1. Punishment is inflicted as a last resort. For e.g.
those punishments under Hadd.
2. Exemplary purpose. To set an example to the public so
that such crimes won’t be repeated in the future.
3. Reformation to the accused person from committing
similar crimes in the future.
4. Retributive purpose. Punishments that can give justice
to the victim’s heirs which are somehow necessary.
In Malaysia, hudud and qisas punishments are not
enforced.
Inheritance,
Wills and Hibah
-It is governed by the customary practice of the people.
In the Middle East, during the time of the pharaohs, nobody would own property.
People could only cultivate the land and take benefit but they didn’t own it.
- During Prophet Muhammad’s time, inheritance law was
governed in detail by the Ijma’ of jurists. The customary practices are still
accepted with reforms. Those practices which were contrary to Syariah law were
rejected.
Inheritance: Nisa (4:11, 4:12, 4:176)
Ali Imran (3:180),
Al-Hadid (57:10), Al-Anbiya (21:89)
Hadith: ‘Give
the Faraid to those who are entitled to receive it. Then whatever remains,
should be given to the closest male relative of the deceased’.
Hadith: A case
where a wife of a man named Saad bin Rabi and her 2 daughters went to see PM
and said that the husband had passed away. However, their uncle took all of his
property and left nothing to them. PM replied that: Allah will decide on the
matter and after that an-Nisa (4:11) was
revealed. One of the Companions was asked to get 2/3 for the daughters, 1/8 for
the mother and the balance to the uncle.
The significance of Nisa
(4:11): It generates and formulates a systematic distribution of property
upon the death of the person.
Nisa (4:13):
This verse avoids disagreements or feud among family members of the deceased
who are over the deceased’s property.
Before the distribution, there are 4 rights needed to be
executed/performed:
1. Payment of funeral expenses for the deceased.
- It must be taken from the deceased’s estate or
property. The payment is only to cover important rituals. However, if the heirs
are willing to bear the costs of the funeral, then the expenses need not be
taken from the deceased’s estate or property.
2. Settlement of debts
- The settlement of debts must be given priority. The
debts must be settled by the living heirs. The deceased’s estate can also be
used to settle the debts.
Hadith: Abu
Bakar said that ‘I have witnessed PM settle the payment of debt first, before
he made a will.’
Hadith: The
soul of the believer hangs on his debt until it is paid on his behalf.
2 types of debts:
i) Debts owed to God. For e.g. payment of zakat. Another
example would be the nazar, i.e. promises made to God (a vow). For instance, a
person vows to do something for God if he gets an ‘A’ for the Islamic Law paper.
ii) Debts owed to other people, for e.g. to the bank.
Money is taken from the deceased’s estate to pay for such debts. Another
example would be the payment of unpaid mahr/dowry.
3. Disposition of a will or bequest made by the
deceased
- Refers to the disposition of some property which takes
effect upon death. The disposition is complete upon the acceptance from the
beneficiary upon the death of the testator. The will is either made in writing
or orally. It is recommended for the testator to make a will in the presence of
2 witnesses.
Maidah (5:106)
S.3 of the Muslim Wills Selangor Enactment 1999: Any will
made orally must be witnessed by 2 competent witnesses.
4. Execution of a will
- In executing a will, there is a limitation on the
disposition of property by way of will, i.e. a testator can only dispose 1/3 of
his property by wasiyyah.
Hadith: ‘…PM
said: you may make a will of a one-third of your property…’
- If the legal heirs have a consensus that more than 1/3
can be given through the will, then only the will can be valid. The consent
must be given after the death of the testator. If given before, the will is
invalid.
* After all of the 3 criteria (funeral expenses,
settlement of debts, disposition of a will) are fulfilled, then according to
Faraid, the property will be distributed accordingly.
Pillars and
Conditions of Inheritance
1. Conditions for Muwarith/deceased/missing person
- Need a death certificate or
a burial certificate, then faraid can be done (distributed). A death
declaration can only be made when death is certain by way of evidence. High
Court issues the death certificate. Such certificate is issued only after
countless efforts to find the missing person were made.
- If a person is missing for 4
years or more continuously, a declaration of death may be made in Court. The
missing person’s date of death is established from the date the death
declaration is made. After such declaration, the property can be distributed in
accordance with faraid.
- Any legal heirs that may have
died prior to the date when the decree was made are not entitled to get any
property. If the missing person or muwarith comes back, and the properties have
already been distributed, he can only recover the remaining properties not yet
distributed.
2. Legal heir (warith)
i) The legal heir must survive
the muwarith. The father can inherit from the son and vice versa. If the father
and son died together, if it is difficult to ascertain who died first, the
general rule is that neither of them will inherit each other’s property.
However, if there is evidence to show that one survived the other even for a
short period, then the survivor can inherit the property. The next legal heir
is entitled to get his property since the survivor died.
ii) An unborn baby or a baby
in a womb is another kind of legal heir. It is only entitled to its share in
faraid law and the portion will be reserved until he or she is born. If the
baby dies, the portion is distributed among legal heirs who are still alive.
iii) The legal heir must be
free from any obstacles or impediments to inherit.
3. The estate (irth)
- The estate or property must be halal in the eyes of
Syariah. If the property is a liquor store, then it is haram and cannot be
distributed. The property must also belong to the deceased at the time of his
death. The estate or property must be in existence at the time of death.
Grounds for
inheritance
1. Blood ties
- The muwarith and warith is related through blood ties,
for e.g. father, mother, uncle and auntie. The blood ties must be legitimate.
It can only be established by a valid marriage. Children born out of wedlock
cannot inherit. They can only inherit from the mother’s side. An illegitimate
child cannot be legitimate even if later the mother married to the biological
father.
i) Child born into a marriage later declared as void by
the court. A child may be born due to rape or other reasons. The issue is
whether his child is a legitimate child and whether it affects his entitlement
for inheritance? Majority of scholars concurred that as far as inheritance
property is concerned, if the father accepts the child as his, the paternity
can be established after the father’s name and the child is legitimate. Thus,
he can inherit.
ii) Child who suckled from a woman other than this birth
mother is not entitled to inherit any property from the suckling mother’s side.
iii) An adopted child. In Syariah law, an adopted child
is not entitled to inherit from the adoptive parents. However, the adoptive
parents can always give property to the adopted child though hibah or a will.
2. Marriage
- Marriage must be a valid marriage according to Hukum
Syarak. If the marriage ends with a divorce and it was a revocable divorce, the
marriage is still considered as a legal marriage during the period of iddah’.
If the husband dies during that period, the wife can still inherit the
husband’s property. Revocable divorce = talaq 1 and talaq 2.
- For irrevocable divorce, i.e. talaq bain sughra and
talaq bain kubra, the wife cannot inherit the property since the marriage is
not subsisting.
3. Patronage
- If the slave dies, the slave master can inherit his
property if the slave died without leaving any legal heirs at all.
4. Escheat or Baitulmal
If a person dies without leaving any heirs, the property
goes to the Baitulmal. Hadith: ‘And whoever leaves property it
is for his heirs, and I am the heir of a person who has no heirs.’
Impediments to
inheritance
1. Murder
- if the legal heir kills someone, for e.g. a son killed
his father, then the son cannot inherit. If murder by mistake or negligence,
the murderer can still inherit.
Hadith: A
murderer shall not inherit.
2. Difference of religion
-Change of religion will prevent a legal heir from
inheriting. 2 persons from 2 religions do not inherit from each other ever.
However, a will can still be made to distribute property.
Hadith: A
Muslim cannot inherit an unbeliever and an unbeliever will not inherit a
believer.
3. Slavery
- A slave cannot inherit. All of the slave’s property
belongs to the master.
4. Difference of domicile
- Applicable to non-Muslims only. If a non-Muslim dies in
a country, relatives from another country cannot inherit from him unless they
are from the same country.
Wills /
Wasiyyah
- Refers to a gift or contribution given to another
person upon his death, whether done orally or in writing. It is a vow made by a
person during his lifetime to do things after his death permitted by Hukum
Syarak. Wasiyyah is complete when there is an offer made by the testator and an
acceptance by the will recipient. If the acceptance is made when the testator
is alive, then it is not a complete will.
Nisa (4:11)
replaced Baqarah (2:180-182)
Hadith:
O
Messenger of Allah. I have wealth and I only have one daughter to inherit from
me.
Shall I give two thirds of my wealth as Sadaqah?"
"No," replied the Prophet. "Then, (shall I give) a half?."
asked Sa'ad and the Prophet again said 'no.' "Then, (shall I give) a
third?' asked Sa'ad. "Yes," said the Prophet. "The third is
much. Indeed to leave your heirs well-off is better than that you should leave
them dependent on and to beg from people. If you spend anything seeking to gain
thereby the pleasure of Allah, you will be rewarded for it even if it is a
morsel which you place in your wife's mouth.
Hadith: There
is no right(fit) for a muslim who has something to bequest left to the two
nights but his will was written in his presence.”
Hadith: “The
worst are those who do not have time to make a will.”
Conditions of a will
1. Testator (Musi)
- Must be a mukallaf (reached the age of puberty and
maturity)
- Made the will in his free will (free of fraud, undue
influence, etc)
- Must possess the mental capacity to make a will.
2. Will recipient
(Musa Lahu)
- Must be an identified person
- Must exist at the time of the death of the testator
- Can also be a school, mosque, charity, etc
- He or she is not required to be mentally capable
- If he or she hasn’t attained the age of puberty and
majority, the trustee will hold the property for him or her.
3. Willed property
(Musa Bihi)
- Movable or immovable property
- Must have value or benefits in the eyes of Syariah law.
It must be a halal property.
- Property is transferable after the death of the
testator.
- The property exists during the testator’s death.
4. Sighah Ijab and
Qabul
- will is complete upon the acceptance by the will
recipient upon the death of the testator. Any acceptance or rejection during
the lifetime of the testator is not considered.
- The provisions in the will cannot go against the
principles of Syariah
- If the will recipient died after the testator died, but
didn’t clearly indicate whether he accepted the will, the heirs can accept or
reject the will on behalf of the will recipient.
Allowable
property portion to will – 1/3
- A testator can give to anyone when there is no longer
any heir to take the property in the form of inheritance. In such a situation,
more than 1/3 can be given. More than 1/3 can also be given if all of the legal
heirs have given their consent.
- A will cannot be made in favour of legal heirs who are
already entitled to inheritance under faraid law.
Hadith: ‘There
will be no bequest to an heir.’
- However, the testator can still make a bequest to a
legal heir if the other legal heirs have consented to it.
Cancellation of
Wills
1. A will can be void if the testator is insane. If a
will was made by a sound person and then he turned insane, the will is still
valid.
2. A will is void if the testator becomes an apostate.
3. Wills are invalid due to incompletion of condition.
For e.g. if the condition is: “If I die due to drowning, then you can take my
assets”. If the testator dies in a different way, the will is invalid.
4. The will becomes void due to withdrawal of a will. The
pronouncement for the withdrawal of a will can happen openly or secretly.
5. Rejection of a will. A will can be void if there is
rejection from the will recipient; if the will recipient rejected the willed property.
6. Recipient dies before the testator. A will is void if
the recipient dies before the testator.
7. If the beneficiary murders the testator. Hadith: ‘a murderer shall not inherit’.
By way of analogy, the will recipient will also not get any property that has
been willed to him. It applies in cases of intentional murder or
quasi-intentional murder.
8. Damage to bequeathed property. The will may be void if
the willed property is damaged before the acceptance is made by the will
recipient.
Testate,
intestate and partly-intestate property
1. Testate
property
- refers to the property
left behind by the deceased which has been included in a will as a whole.
Property willed as a whole is a void will because only 1/3 of the property can
be willed unless there is consent by the legal heirs.
2. Intestate property
- Property left behind by
the deceased because there is no will. Division is according to faraid.
3. Partly intestate property
- The deceased property which is partly testate and
partly intestate. It is the most common form in Malaysia. When the deceased
left a will, the law applicable is the Probate and Administration Act. A grant
for probate can be determined at the High Court. The application can only be
made by the will recipient. If there is any dispute or objection from the legal
heirs to the property that has been willed, the case is only brought to the
Syariah Court to determine the validity of the will. It is brought to the High
Court if the property is worth more than RM 600k.
Fiqh Al
Muamalat
- Islamic Financial System
AQ: (35:12), (62:
9 - 11), (4:29)
Hadith: ‘A
trustworthy & an honest & truthful businessman will rise up with
martyrs on the day of Resurrection.’
Basic
principles of fiqh muamalat
1. Business framework – based on AQ and Sunnah. The
activities or transactions, behaviour of persons in the transactions must be in
line with the principles in AQ and Sunnah, and Ijtihad. The members of the
Syariah Supervisory Board (SSB) are appointed to ensure that the Islamic products
adhere to Islamic law as well as give guidelines to those who want to be
involved with Islamic business transactions.
- Allah permits a sale but prohibits a riba. Banks earn
money through marking up the products instead of charging interest. Charge fees
for financial facilities. Prohibition of riba promotes high moral value and
ethics.
2. Prohibited activities – banks won’t loan to shops that
sell liquor or to liquor factories and so on. Simply put, shops that deal with
haram or prohibited materials will not be given a loan.
3. There will be no uncertainty/gharar and maisir
(gambling). Any business trade that is based on uncertain events is haram in
Fiqh Muamalat. For e.g. stock markets are haram in Syariah law. Furthermore,
gambling is prohibited in Syariah law.
4. Recognises contractual relationships. The contractual
relationship is based on the nature of transaction. For example, buyer and
seller relationship, partnership relationship or creditors and debtors
relationship are recognized.
5. Participation and risk sharing. Fiqh Muamalat offers
depositors participation in a risk-sharing business rather than a business
based on fixed interests. Depositors invest money to do a business. The risks
are shared together between the bank and depositors.
6. Islamic ethics and behaviour. It is concerned with the
way those involved in the business acts. Those involved should have good
behaviour and ethics to promote their product by giving a good impression.
7. Contribute to the socio-economical goals of the
society. The Fiqh Muamalat is socially responsible. It can help the poor and
the needy in society. It can provide education and scholarships. Furthermore,
payment of zakat can be made from the assets invested by Muslims.
Distribution of
Wealth
1) Mirath (faraid)
2) Zakat
3) Sadaqah
2) Zakat is an obligatory
yearly tax imposed to Muslims. Tawbah
(9:60)
- With the obligation of paying
zakat, it prevents the habit of being greedy. Those below a certain amount, for
e.g. RM 2.5k don’t have to pay zakat.
3) Sadaqah is charity. It is
given to individuals to help the needy and poor. It is not compulsory but
encouraged to give charity.
Baqarah (2:191)
Zakat fitrah – during Hari Raya
Zakat harta – yearly tax
Main criteria of Islamic Constitutional Law
1. Relationship between man and
God.
- can be seen through the rule
of Islamic government. God is the ultimate goal. AQ : (29:69)
2. Sovereignty of the law is
God himself. The scope of the activities will naturally come within the
restriction ordained by God in the AQ Himself.
i) Political sovereignty
ii) Legal sovereignty
AQ: (12:40), (7:3)
3. Power of the government
(Islamic polity/state)
- The concept of khilafah. Man
is a representative of God to carry out responsibilities and duties in the AQ,
Sunnah and Ijtihad of scholars.
4. Islamic constitution
portrays stability in its law and permanence in its principle. It is flexible
in its application.
5. Syura
- Body that is established to
conduct the affairs of the state. (42:38),
(3:159)
Principle of syura – cannot
conduct on things already established in AQ and Sunnah unless the matters
require further consultation.
6. The duty of the Islamic
State is not just merely to maintain the internal order of the country or
defend it but also to establish the zakat system and solat system. Without
these systems, there can be no Islamic country. (22:41)
OTHER TOPICS REFER TO THE
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