1. CITATION OF CASE:
Nuraizah Chin bte Abdullah v Jamry bin Ahmad
Court: Syariah Subordinate Court Sepang
Date: October 24, 2005
2. PARTIES:
The Applicant: Nuraizah Chin bte Abdullah
The Respondent: Jamry bin Ahmad
3. MATERIAL FACTS:
· The case is an application to dissolve the marriage between the applicant and the respondent which had taken place on 14 November 2002.
· The applicant is a Muallaf (revert) who had embraced Islam on 9th September 2002. It was the respondent who arranged for the marriage. However, the applicant has doubts about the marriage because the wali hakim who had solemnised their marriage was not authorised nor appointed by the Islamic Religious Affairs Department, Perak [Jabatan Agama Islam Perak (JAIP)].
· Besides that, there were supporting letters issued by the Islamic Religious Affairs Department of Perak (JAIP), Office of Islamic Religious Affairs, Ipoh [Pejabat Agama Islam Ipoh] and Office of Islamic Religious Affairs, Sepang [Pejabat Agama Islam Sepang] confirming that the marriage certificate issued was faked.
4. LEGAL ISSUES INVOLVED:
1. Who is the rightful wali for the applicant?
2. Whether the marriage official has the authority to become a wali hakim or wali raja and had been appointed by the Sultan.
3. Whether the letters from the Islamic Religious Affairs Department of Perak (JAIP), Office of Islamic Religious Affairs, Ipoh [Pejabat Agama Islam Ipoh] and Office of Islamic Religious Affairs, Sepang [Pejabat Agama Islam Sepang] can be accepted as a strong qarinah to decide upon for this case.
4. What is the hukum of the applicant marrying without a wali and the hukum of what comes after the marriage?
5. HOLDING:
The court ordered accordingly by dissolving applicant’s marriage.
6. THE REASONING OF THE JUDGE:
1. The applicant in this case is a mualaf and has no wali mujbir because she is the only Muslim in her family. Hence, the person who has the right to become her wali in this case is the wali hakim of where the applicant lives. The applicant should have applied for permission to be solemnised by a Wali Hakim by virtue of s 18(c) Islamic Family Law (Selangor) Enactment 2003 [Enakmen Undang-Undang Keluarga Islam (Negeri Selangor) 2003]. This decision is based on a few hadiths:-
· The Sultan is the wali for those who do not have a wali.
· There is no nikah unless there is a wali and two witnesses who are Adil. If a nikah occurs without their presence, the nikah is null and void. (Hadith Narrated by Ibnu Hibban)
· There is no nikah without a wali. (Hadith narrated by Abu Daud)
2. According to the letters by the Office of Islamic Religious Affairs, Ipoh [Pejabat Agama Islam Ipoh] and Office of Islamic Religious Affairs, Sepang [Pejabat Agama Islam Sepang], the marriage certificate that was given to the applicant was a fake certificate. There were also no details whatsoever with regards to the information on the wali hakim. In the certificate, the blank space provided for details on the name of the wali hakim was only filled with WALI HAKIM.
3. The letters issued by the Islamic Religious Affairs Department of Perak (JAIP), Office of Islamic Religious Affairs, Ipoh [Pejabat Agama Islam Ipoh] and Office of Islamic Religious Affairs, Sepang [Pejabat Agama Islam Sepang] stating that that the marriage certificate is fake can be accepted as a public document and a strong qarinah according to the Section 57 of the Syariah Court Evidence (State) 2003 and Section 23 of the Syariah Court Evidence (State) 2003
4. When a woman marries without a wali, the marriage is null and void. However, whoever who has had sexual intercourse as a result of this void marriage, the Hudud laws for zina won’t be applied because there exists the elements of Syubhah and the women can get the dower from her husband. This decision is based on a hadith:-
· The Apostle of Allah (Peace be upon Him) said: The marriage of a woman who marries without the consent of her guardians is void. (He said these words) three times. If there is cohabitation, she gets her dower for the intercourse her husband has had. If there is a dispute, the sultan (man in authority) is the guardian of one who has none. (Hadith narrated by Abu Daud, Ibn Majjah and Tarmizi).
