Fiqh muqaran

Slide presentation for "Fiqh muqaran"

Issue 1: Breach of contract to marry
Issue 2: Marriage without consent of wali

Every national and international legal system recognizes marriage as a legitimate institution. The first step in a marriage contract is betrothal. Also, in Malay tradition, betrothal or peminangan is seen as the first step towards marriage. Simply put, betrothal is when a man asks a lady for her hand in marriage, either directly or through an intermediary (Tajuddin et.al, 2024). Although betrothal is only an agreement to marry and not yet a marriage, if one party violates it, there are legal consequences. This covers reimbursement for any money spent in good faith to prepare for the marriage as well as the return of betrothal presents (Mohd et.al, 2024). In addition to the stated loss, the offended party may experience shame or humiliation as a result of the betrothal. The Shari’ah and civil law recognise betrothal as a significant plan before and towards a marriage contract. Both laws also agree that in the event of a breach of betrothal, the party in default is liable to certain damages and compensation. However, when one side insists on getting married while the other does not plan to do so without a valid cause, this is known as a breach of betrothal. Regardless of whether it is a man or a woman, a breach of betrothal will be prosecuted if it has caused considerable losses for the parties involved in the wedding planning (Fikriyah, 2015). It acknowledges the emotional and financial investments made in contemplation of marriage, aiming to provide compensation for losses incurred and distress suffered due to the non-fulfillment of a solemn commitment.ccording to Islamic law, the existence of a wali (guardian) is considered necessary for a marriage to be considered valid. This is supported by both scriptural texts and academic viewpoints that highlight the guardian's function in ensuring the validity of the marriage. However, there are special situations in which a marriage takes place without the wali's approval or presence, a topic of much scholarly discussion. While some academics argue that marriage without the wali is invalid others maintain that women are entitled to get married without a wali's consent in certain situations, such as when there is a need or a good reason, as long as other requirements are satisfied. In order to better understand Islamic rulings on marriage without the wali's consent, this discussion will look at the relevant evidence, different scholarly opinions, and the implications for women's rights and the validity of the marriage (Faizah, 2023). From perspective (Muhammad Ifzal Mehmood, 2021), in addition to protecting the bride's interests, the wali (guardian) is traditionally considered essential to the validity of marriage (nikah), ensuring social and interpersonal harmony. Based on Qur'anic teachings (e.g., 4:25), classical scholars especially those from the Shafi'i, Maliki, and Hanbali schools view the wali's consent as an important component (rukn) of marriage and Prophetic hadith: "There is no marriage without a guardian".