Introduction
‘Betrothal’ or ‘khitbah’ is an agreement between a man and a woman to marry. It occurs when the proposal a man makes to a woman, either personally or through an intermediary, is accepted. Betrothal is not a marriage contract. Therefore, it does not make the parties to it, husband and wife.
Conditions for a Valid Betrothal
1. There should be no impediments to the marriage between the parties at the time of betrothal
Impediments to marriage can be temporary or permanent.
Temporary Impediment
Betrothal is forbidden when the parties are forbidden to marry one another temporarily due to certain reasons. When the reason is no longer applicable, the parties can marry one another. Temporary impediments can be affected in the following cases:
a. Revocable divorce
In a revocable divorce, it is prohibited (haram) for a man to have a contract of betrothal with a woman who is in the period of iddah (waiting period). This is because the woman is still tied to her husband who has the right to revoke the divorce.
b. Irrevocable divorce
In an irrevocable divorce, a man is prohibited from seeking betrothal with the woman openly during her iddah period as her former husband can still seek to remarry her. Betrothal can only be made publicly with the woman after she has fulfilled her iddah period.
c. The woman’s husband has died
In the situation where the woman’s husband has died and the woman is in iddah of widowhood, the woman can be sought in marriage by suggestion. Nevertheless, no betrothal can be made publicly so as not to hurt her feelings and those of the family.
Surah Al-Baqarah (2:234): “If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: when they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. And Allah is well acquainted with what you do.”
Surah Al-Baqarah (2:235): “There is no blame on you if you make an offer of betrothal or hold it in your hearts. Allah knows that you cherish them in your hearts: but do not make a secret contract with them except in terms honourable, nor resolve on the tie of marriage till the term prescribed is fulfilled. And know that Allah knows what is in your hearts, and take heed of Him; and know that Allah is Oft-Forgiving, Most Forbearing.”
Permanent Impediment
Permanent impediment prevents a marriage to a woman forever in any situation. The parties are forbidden to marry one another permanently on the grounds of consanguinity, affinity, or fosterage.
Surah Al-Nisa (4:23): “Prohibited to you (for marriage) are – your mothers, daughters, sisters; father’s sisters, mother’s sisters; brother’s daughters, sister’s daughters; foster-mothers (who gave you suck), foster-sisters; your wives’ mothers; your step-daughters under your guardianship, born of your wives to whom you have gone in – no prohibition if you have not gone in – (those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-Forgiving, Most Merciful.”
2. The woman is not betrothed to another man
It is prohibited for a man to make an offer of betrothal to a woman who is already engaged to, or who has received a proposal from, another man until that man permits it or gives it up. This is to prevent hostility and enmity between two brothers in Islam.
It was reported that the Prophet said that a person shall not enter into a transaction when his brother had already entered into but not finalised and he should not make a proposal already made by his brother, until he permits it or until he gives it up.
It was also narrated that the Prophet said: “None of you should propose marriage to a woman when someone else has already proposed to her.”
In short, if a woman had accepted a proposal of marriage by a man, another man is not allowed to propose to her for marriage.
Breach of Betrothal
A betrothal should not be terminated except for valid reasons, in reference to the Hadith, “Muslims are bound by promises and the conditions that they have agreed to”.
According to Section 15 of the Islamic Family Law (Federal Territories) Act 1984, if one party to a betrothal refuses without lawful reason to marry the other party who is willing to marry, the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and to pay for the expenditure incurred in good faith by or for the other party in preparation for the marriage.
In Aishah bt Mahmud v Jamaluddin b Sulaiman (1983) 3 JH 104, a man broke a promise to marry a woman. The court ordered the man to pay damages according to the engagement agreement and the woman reserved the right to continue to keep the engagement ring given to her. The man was also ordered to pay the cost of bridal shirts to the woman who had prepared for marriage and also RM400 as payment for the repair done specifically for the preparation of a wedding.
In Nafsiah v Abdul Majid (No 2) [1969] 2 MLJ 175, the plaintiff brought an action for damages for breach of promise to marry. It was argued that since the plaintiff knew that the defendant was already married, even if the defendant had made any promise to marry the plaintiff, such promise was void ab initio. The court held that the plaintiff’s knowledge that the defendant was already married did not invalidate the promise as the defendant was, under his own personal law, entitled to more than one wife. Accordingly, the court assessed damages at $1,200.
