Browsing by Author "Miszairi Sitiris, Ph.D"

Under the Islamic Family Law, one of the methods of dissolution of marriage is known as ta’liq ṭalaq, where the husband pronounced a divorce based on certain conditions as prescribed in the marriage agreement form. Therefore, this research aims to analyse the practice of pronouncing ta’liq ṭalaq after the solemnisation of marriage, particularly in the State of Selangor. This is because the practice has become an official procedure in a marriage ceremony by the State Islamic Law. It is compulsory for the groom to pronounce the ta’liq after the solemnisation of marriage. The implementation of this practice in Malaysia, particularly in the State of Selangor, has been seen as a way out of a marriage by protecting the rights of the wife from being neglected by the husband in the marriage. This research is also analysing whether the practice of pronouncing the ta’liq ṭalaq after the solemnisation of marriage is consented by the newlyweds. Besides that, the condition of ta’liq ṭalaq in the prescribed form, as pronounced by the husband after the solemnisation of marriage is similar to the provision of fasakh. Therefore, the purpose of this research is also to evaluate and analyse the relevancy of this practice when there is already a provision of fasakh in placed as a dissolution method of marriage to protect the rights of the wife. A qualitative methodology by the way of interviews was selected as the research methodology to analyse the issue. In this methodology, two stages of data collection and data analysis are involved by way of content analysis of the relevant published materials and semi-structured interviews with the experts in the field. The interviews were conducted by interviewing solicitors who are practitioners of the Shari’ah Law. Based on these study and analysis, the findings will give an indication whether the provision of fasakh gives sufficient protection to the wife by providing several grounds for dissolution of marriage. In addition, the proof of ta’liq application is required to have double the burden of proof as compared to fasakh application. This research is concluded by suggesting some recommendations and solutions for the issues raised in the practice, which will eventually benefit the state religious authority, as well as the newlyweds.

Bankruptcy is one of the worst conditions that individuals may face, and the Islamic lawmaker has warned against the provisions of religion, the leniency in its performance, and urged its elimination, as well as determine several means of its performance, including the share of debtors of zakat, and the establishment of the jurisprudence and conditions for the eligibility of the debtors. Nevertheless, the question remains about the status of the bankrupt in Malaysia, because it has not been discussed in the books of jurisprudence. Thus, this research seeks to demonstrate the eligibility of the bankrupt for zakat in Malaysia, particularly of the debtors’ category, and to clarify the ways in which the Office of Debt Default Management of Malaysia (MDI) issues decisions on the bankrupt and investigates the eligibility of the bankrupt for zakat at the Zakat Foundation in Selangor. Through the inductive approach, the researcher collected the relevant data, analyzed them, and then concluded the most important conclusions. The debtors are Muslim debtors and they are entitled to zakat. As for the reasons of bankruptcy as one of the most important factors in zakat entitlement, therefore the bankrupt is ineligible to receive zakat.

This analytical study aims to demonstrate the two important aspects of Al-Ijtihad according to al-Shaykh al-Ra´is Abu Nabhan Ja´id bin Khamis Al-Kharusi. The first aspect is related to the personality of Abu Nabhan and its features in terms of his auspicious upbringing, personal life and political movement while he was living during the Al-Busaidi state. Additionally, how did the aforementioned aspects shape his personality to engage in the crucial events witnessed by the Omani community and the surrounding region at that time? Besides that, the study illustrates the various positions that Abu Nabhan occupied scientifically and politically during the journey of ninety years of his life according to available sources, viz, manuscripts and printed studies. The second aspect of this research focuses on the principle thoughts and opinions of Abu Nabhan by analysing his methods and tools of studying the fundamental and fringe Islamic evidences as well as the rules of Islamic laws. Moreover, the research sheds light on his remarkable attention to vital issues of public and private life. The conclusion of this study elaborates the details of his own style of explaining the aspects of jurisprudence and the principles of the jurisprudence. The methodology of this study was based on three approaches: inductive by collecting data from its various sources, both manuscripts and published books and the second is historical by studying the historical stages and conditions of that era. The final approach is by analysing the ideas and opinions of Abu Nabhan in the jurisprudence and its principles. Findings of this study have shown that Abu Nabhan had devoted and dedicated his whole life gaining knowledge. Then he carried out the mission of imparting sound thoughts and ideas among the public and tries to find solutions to the problems and challenges being occurred by internal or external causes such as the invasion the Wahhabism to Oman and the consequences of Western Colonisation. It is evident that the most of his efforts were to encounter the challenges and obstacles in the Omani lands. Finally, while Abu Nabhan had striven significantly to find solutions for the political and social issues and matters, he had simultaneously contributed immensely in the scholarly field by analysing and correcting various ideas and thoughts. Until to this very day, the scholarly heritage of Abu Nabhan has been used to deal with complicated matters and contemporarily cases including theological issues and Islamic legal opinions.

This research explains the concept of domestic violence in the Kingdom of Bahrain, its types, and its causes in the light of Islamic jurisprudence. It studies also the reality of domestic violence in Bahraini society and its implications and it highlights the position of Islamic law on it. The research explains the role of civil institutions and the legal judiciary in addressing domestic violence in the Kingdom Bahrain in the light of Islamic jurisprudence. The researcher also referred to the findings, suggestions and recommendations that will enrich the topic in scientific and practical terms. The researcher has used the descriptive approach to study the basic concepts constituting the elements of the research, through discussing the sayings of the Muslim scholars on the issue of domestic violence in terms of jurisprudence. He has also used the analytical method to analyse and discuss the opinions of jurists, present legal texts and their relationship to this topic, and to inquire about domestic violence issues with civil institutions and the legal judiciary as much as possible in the Kingdom of Bahrain.The researcher also conducted a field study through an open interview to obtain possible data on domestic violence In the Kingdom of Bahrain with officials in the relevant civil institutions and the legal judiciary to obtain information related to domestic violence, which will contribute to the scientific analysis of the problem and enrich the research with important information, which requires serious study and scientific research to explain its causes and effects and offers its treatment to reduce it in light of Islamic law.

This study dealt with the dowry (mahr) and money gift (al-'Atha' al-Mali) that the husband must pay to his wife for marriage, which are implemented in the state of Selangor and most of the states in Malaysia. This research aims to clarify the ideas on dowry and money gift and ways to reform them based on Islamic Shariah. In this study, the researcher relied on three approaches: inductive approach, analytical approach, and field study. Through the inductive approach, the researcher collected and categorized his research data, whereby the analytical approach analyzes the issue of dowry and money gift and their application in Malay society. The field study is conducted to obtain information and opinions from interviews with the officials responsible for marriage affairs. The study concluded a set of results, the most important of which is that the dowry does not have an estimated limit, although some jurists differ in its minimum. Islam did not set a specific amount for the dowry, and that money gift is one of the traditional Malay customs in marriage in Malaysia, which is to provide a sum of money to the wife’s family when the marriage contract is signed, and not mentioning the value of the money gift in the marriage contract is like the dowry and they are recorded together in the marriage certificate leads to the presence of two equal elements as monetary forms but they differ in the name. As a result of the different naming, it leads to disagreement and misunderstanding in the community and affects the ruling on merit and ownership .Therefore, this study is one of the efforts aimed at spreading awareness among the Malay community in the state of Selangor, especially in knowing the reality of the dowry and money gift in marriage, and how to apply them properly.

Salafu and Kẖalfa scholars argue that the consent of the guardian (Wali) is an essential condition for the validity of marriage. Recently, the Muslim community in Malaysia has witnessed a growing phenomenon related to marriages where the jurisdiction of marriage is transferred to a judge. Some Malaysians are traveling abroad to transfer the right of guardianship from their obligated guardians to an appointed judge, seeking their services to solemnize their marriages. This type of marriage is recognized as legally and religiously valid by Islamic institutions and Sharia courts in Malaysia. This recognition is based on the jurisprudence of the Shāfʿī school, the official school in the country. Based on this reality, a the researcher decided to conduct a study to determine the validity of marriages of Malaysians who seek to remove the right of guardianship from their closest relatives and transfer it to the ruler in southern Thailand, in accordance with the adopted opinion in the Shāfʿī school of jurisprudence. The researcher aimed to explain the motivations behind this behavior. To reach this conclusion, the researcher utilized both inductive and analytical methods, conducting field interviews to gather the opinions of scholars, judges, lawyers, mufti, academic experts, and members of the Islamic Religious Council in Malaysia and Thailand. The researcher concluded that the marriage of a runaway woman from her compelled guardian with the intention of transferring the guardianship to the judge in southern Thailand is invalid. This is due to the failure to meet the requirements and conditions for the validity of marriage under the judge’s jurisdiction, as outlined by Shāfʿī scholars. As a result, several negative consequences arise at the individual, familial, social, and legal levels. This behavior is considered one of the factors leading to the disintegration of family relationships and the collapse of the moral value system in Malaysian society as a whole. It is expected that this study will draw the attention of official authorities, responsible individuals, and experts to re-evaluate certain fatwas that do not align with the correct opinions endorsed in the Shāfʿī school of jurisprudence. Additionally, it aims to improve certain legal and administrative procedures for Malaysians who wish to solemnize their marriages through the ruler in Thailand. This is done to limit manipulation regarding the guardianship issue and to close the channels used by irresponsible individuals, such as unauthorized agents who seek profit without considering the potential negative consequences.

This research aims to study the laws of WAQF (endowment) in Qatar and their structural and internal systems, since its institutionalization in Qatar and the development of its legalization and its regulating texts in the light of the sayings of the jurists. It discusses some of the challenges faced by the administration from the legal and administrative standpoint, evaluates them through maqasid Sharia showed by the organizational and administrative reality of the Qatari waqf regulations and laws. It also discusses the most important issues from the administrative and legal standpoint through information related to management systems, gathers the opinions of the jurists from their traditional and modern sources and justifies their evidence, then analyzes and discusses it from the legal and administrative point of view to reach its purpose. The most prominent issues that the research addresses are the waqf systems in Qatar in terms of administrative independence, its monitoring, and commitment. The research is, therefore, divided into five chapters. The first is an introduction. The second explains the concept of waqf and its most prominent rules from juristic and maqasid viewpoint. The third investigates the reality of waqf in Qatar from the organizational point of view, and the most prominent stages and changes that its administration went through in since its inception. The fourth examines the challenges facing the waqf in Qatar, such as its independence, monitoring, commitment and the future of family endowment. As for the last chapter, it deals with ways to develop waqf systems through contemporary experiences and methods, such as Western systems like the Islamic endowment system, and the application of governance rules for structural systems and internal regulations for the Qatari endowment administration. The research concludes that the waqf is open to everything that would lead to its development and growth as long as it is in its interest and consistent with the principles and rules of Sharia which are established by the jurists of Islam. This includes benefiting from the diversity of Western charitable formulas and their intensity in regulatory laws, and the application of governance rules to systems structure and internal regulations, exposing to Islamic experiences that have been influenced by modern administrative systems and methods, such as the Kuwaiti experience, and exchanging experiences with it.

This study aims to discuss the issues about the early marriage in Islam. The research also examines the basics that underlie the courts in South Kalimantan in legalizing early marriage, followed by supporting reasons and their implications for it. The root of the problem in this research is the age limit of marriage determined by the law of marriage in Indonesia which is 19 years old for both men and women. This limitation does not mean a complete prohibition on marriage. However, the standard in determining the legal justification for early marriage is still ambiguous. This research uses the inductive analytic methods and field study by interviewing a number of Sharia Judges in South Kalimantan, Indonesia regarding early marriage. Among the most important results of this study is that judges' decisions must include causes, facts of the judgement, and legitimate foundation and judicial discretion. In addition, the significant point of judicial consideration in terms of providing dispensation and or disapproving of the petition for early marriage in South Kalimantan, Indonesia is a compilation of Islamic Law known as KHI (Kompilasi Hukum Islam). It is a source that covers jurisprudence (Fiqh) implemented in Indonesia; another provenance is called the rules (Qawaid) of Ushul Fiqh which concern on the benefits or goodness in matters related to early marriage. Both are used by the judges as a basis and source for legal decision-making as well as functioning as the fundamental rules or jurisprudence in determining the eligibility of men and women who want to marry young.

This research aims to study the jurisprudence on the legitimacy of the marriage of the pregnant woman from adultery and the establishment of the kinship of the children born out of wedlock from the perspective of Islamic Law and Islamic Family Law of the Federal Territory of Kuala Lumpur. The research attempts to explain the meaning of marriage, its legitimacy, its rules and the purposes of the marriage. The research then explains the meaning of adultery and its legitimacy. The jurisprudence of the marriage of adulteress and the pregnant woman from adultery is discussed in the second chapter. The research addresses the differences of the jurist views in the jurisprudence of the birth of children born out of wedlock and the establishment of its kinship. Firstly, the research explains the meaning of the children born out of wedlock, and the jurisprudence of the establishment of its kinship and their rights in the Islamic Law and The Islamic Family Law of Federal Territory of Kuala Lumpur. The research defines terminologies that reflects the same meaning with the children born out of wedlock. Some selected cases on the subject are discussed and analyzed from two perspectives, Islamic Law and the Law as well as the solutions from the perspective of Islamic Law and Law. The inductive description method is used by tracking the words of the scholars and facilitating the original and contemporary sources of references in books and heritage. The analytical approach has been used to explains the views of the jurists and laws in the differences of the two. The finding in this research is that it is allowed to marry the adulteress and the pregnant woman from adultery with a particular importance to the repentance before the marriage and staying away from the vice. The research concluded that the kinship of children born out of wedlock has not been established either from the perspective of Islamic Law nor from the fatwa in Malaysia. One of the major finding of the research is that the Malaysia community being easy to the crime of adultery while the sentences imposed by the court is affordable to the adulterers. In conclusion, it is important for the legislative to revise the Law in consistent to the Islamic Law.