The writer, Syafiqah binti Abdul Razak, is a Syariah lawyer and advocate & solicitor at Messrs. Atiqah Syafiqah & Associates. She is also a committee member of the Child Advocacy and Development Bureau, under Wanita Pertubuhan IKRAM Malaysia, and wishes to respond to this issue through legal and social perspectives.
In Islamic jurisprudence, a marriage is considered valid when the pillars of matrimony are fulfilled. These comprise the bridegroom, the bride, the bride's wali (custodian), two witnesses, and solemnisation.
Additionally, in the case of underage marriage, the wali’s approval is mandatory. Regarding the aforementioned case, it is understood that the marriage was agreed to by the girl’s parents.
In Malaysia, Section 8 of the Islamic Family Law (Kelantan) Enactment 2002 has set minimum age limits for a marriage to be legal:
“No marriage may be solemnised under this Enactment where the age of the man is under eighteen or the age of the woman is under sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances.”
The writer is informed that the bridegroom in question is already married and is Kelantanese; he is thus subject to Malaysian law. As no consent was obtained from a Syariah Judge, the marriage is in breach of this section and hence contradicts legal procedure.
The bridegroom is also liable to be fined following that no prior consent for polygamy was acquired from the court either. Section 124 of the Islamic Family Law Enactment (Kelantan) 2002 states:
“Any man who, during the subsistence of a marriage, contracts another marriage in any place without the prior permission in writing of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.”
The writer is of the opinion that underage marriage causes more harm than good.
A psychological review must be carried out to see whether the child is ready to shoulder the responsibility of being a wife. A marriage is more than a means for sexual release, for it also entails rights and responsibilities of both partners.
Therefore, in this particular case, the child’s custodian needs to play an active role in monitoring her welfare. Any and all assistance needed should be provided throughout matrimony.
Special attention must additionally be given to the child’s future. Early marriage, without the required knowledge and prior life experience needed, is tantamount to compromising her development.
The writer firmly believes that Malaysian law has provided clear conditions in the matter of the minimum age for marriage, to protect and ensure the rights of women.
In conclusion, particular care should be taken to avoid exploitation. The future of a child is of utmost importance, and marriage at an early age cannot guarantee this matter. If an individual intends to alleviate the bride’s family of poverty, for example, he may give financial assistance for schooling purposes or engage in other means rather than take her hand in marriage.
Writer: Syafiqah binti Abdul Razak, advocate & solicitor and syarie lawyer at Atiqah Syafiqah & Associates, Bo. 559-A, Jalan Samudera Utara, Taman Samudera, 68100 Batu caves Selangor Darul Ehsan.
Translated by Nur Artricia Mohd Jefrin and Dr. Daniel Kamal Bahrin and edited by Dr. Daniel Iqram, Pedants