A sociolegal study of marriage without guardian (wali) in Selangor and Federal Territory

Abstract

Marriage is an act of Ibadah and should be solemnized accordingly by fulfilling all the pillars of marriage which are stipulated by Islamic law (Shariah). Walī is one of the pillars of marriage according to the majority of Muslim jurists. However, according to Hanafi school of law, walī is a mere condition for execution of marriage contract. The study deals with socio-legal study of marriage without walī in Selangor and Federal Territory to represent the whole scenario of marriage solemnized in the absence of walī in Malaysia. The study among others examines the provision of marriage without walī in Malaysia and in particulars Selangor and Federal Territory. Examination extends to practice of marriage without walī in several Muslim countries. The study will further examine the views and position of the Muslim scholars on the issue of marriage without walī. In addition, some case studies related to this issue will be discovered and analysed. These include reported and unreported cases specifically in Selangor and Federal Territory. The research is basically a qualitative research through collection of data and interviews with Shari’e Judges in Selangor and Federal Territory. Malpractices of marriage which are unauthorized are rampantly practised recently in Malaysia. Such as, marriage syndicate, express marriage and some cases involving marriage in Southern Thailand. All these types of marriages share one similarity that is they are solemnized without the consent from walī. Therefore, this study aims at examining the law and the status of marriage solemnized in the absence of women’s walī. It is believed that it is right time to conduct the research in line with the increase of cases on marriage without walī in Malaysia. This study is also relevant and beneficial to become one of the mechanisms in educating the public on the effect of solemnization of marriage without walī. This study will be a useful reference to legislators, judges, legal practitioners, academicians, students and public as a whole. From the interviews conducted, the practice of marriage without walī had been rampantly practice due to lack of Islamic knowledges.