Konflik Antara Hak Wali Mujbir di Bawah Hukum Syarak dan Peruntukan Had Umur Minimum Perkahwinan

Syed Husin, Syh Noorul Madihah and Tengku Muda, Tg Fatimah Murniwati (2011) Konflik Antara Hak Wali Mujbir di Bawah Hukum Syarak dan Peruntukan Had Umur Minimum Perkahwinan. Jurnal Islam dan Masyarakat Kontemporari, 4. pp. 7-16. ISSN 1985-7667( printed) 2289-6325 (online)

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Under the Syafie school of law, a father and paternal grandfather as ‘wali mujbir’ (forceful guardian) can give his virgin daughter in marriage without prior consent from the daughter. In contrast, the provisions of Islamic family law in Malaysia has set a minimum age of marriage for a woman at 16-years, and a marriage shall not be solemnised if the woman is a minor except with the approval of the Syarie judge. These conflicting facts create confusion especially among those unfamiliar with the Shariah and the law. This article attempts to identify the limitation of the authority of ‘wali mujbir’ in underage marriage. It also discusses the objective and wisdom behind the limitation as outlined under Hukum Syarak and the provision.It will also seek to see whether the existing law practiced in Malaysia today is contrary to Islamic law. To achieve these objectives, document analysis method is used by reviewing the authoritative classical books of fiqh. Apart from that, reference to the provisions in the Islamic family law act is also made to achieve the objective. The research shows that although the legislation has authorized the wali mujbir with the power to force his daughter or grandaughter’s marriage, there are certain conditions that the wali must adhere to before he could exercise the power. The conditions are in fact in line with the objectives behind the minimum age provision i.e to protect the well being of the prospective bride.

Item Type: Article
Keywords: forceful guardian (wali mujbir), underage marriage, minimum age of marriage
Subjects: B Philosophy. Psychology. Religion > BP Islam. Bahaism. Theosophy, etc
Faculty / Institute: Faculty of Contemporary Islamic Studies
Depositing User: Syh Noorul Madihah Syed Husin
Date Deposited: 08 Feb 2015 06:59
Last Modified: 08 Feb 2015 06:59
URI: http://erep.unisza.edu.my/id/eprint/2389

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