CHAPTER 375
ISLAMIC LAW (RESTATEMENT) ACT

[SUBSIDIARY LEGISLATION]

INDEX TO SUBSIDIARY LEGISLATION

   STATEMENTS

      The Statements of Islamic Law

      Mpango wa Sheria ya Kiislam

STATEMENTS

THE STATEMENTS OF ISLAMIC LAW

(Section 2(1))

G.N. No. 222 of 1967

   This statement contains the English and Swahili versions of the following Chapters of the Statements of Islamic Law:

Chapter

Sections

Subject

I

1-3

Preliminary Provisions

II

4-64

Marriage

III

65-87

Mahr

IV

88-98

Mut'aa

STATEMENTS OF ISLAMIC LAW

(Section 2(1))

CHAPTER I
PRELIMINARY PROVISIONS

1.   Short title and commencement

   These Statements may be cited as the Statements of Islamic Law and shall come into operation on the date appointed for the commencement thereof by the Minister by notice published in the Gazette.

2.   Construction of the statements

   Except where it is otherwise expressly provided the provisions of these Statements shall be construed as being common to the Shafi'i Hanafi and Shiah schools.

3.   Interpretation

   In these Statements, unless the context otherwise requires, "Minister" means the Minister responsible for legal affairs.

CHAPTER II
MARRIAGE

PART I
GENERAL PROVISIONS

4.   Definition

    Marriage (nikah) is a contract between a man and a woman which has for its objects–

   (a)   enjoyment of conjugal rights by the contracting parties; and

   (b)   procreation and legalising of children.

PART II
COMPETENCE OF PARTIES

5.   Competence to marry

   (1) Every Moslem of sound mind who has attained puberty may enter into a contract of marriage.

   Exceptions: (a) According to the Shafi'i school and the Shiah Ismaili school a woman of any age whatsoever is incompetent to enter into a contract of marriage.

   (b) According to the Shiah Ithna' Asheri school a woman who has attained puberty shall be competent to enter into a contract of marriage only if she is discreet.

   (2) Persons of unsound mind and minors (that is, persons who have not attained puberty), and according to the Shafi'i school and the Shiah Ismaili school, women of all ages, are incompetent to enter into a contract of marriage but may be validly contracted in marriage by their respective guardians.

6.   Age of competence

   (1) In the absence of any direct evidence to the contrary it shall be presumed that a person of either sex who has reached the age of fifteen years has attained puberty.

   (2) No male under the age of twelve years and no female under the age of nine years shall be held to have attained puberty.

   Exception: According to the Shiah Ithna' Asheri school it shall be presumed that males attain puberty at the age of fifteen years and females attain puberty at the age of nine years.

PART III
CONTRACT OF MARRIAGE

7.   Consent of parties

   (1) The consent to the marriage of a person competent himself to enter into a contract of marriage in accordance with the provisions of subsection (1) of section 5 must be expressed either by himself or his duly authorised agent or proxy.

   (2) The consent to the marriage of a person not himself competent to enter into a contract of marriage must be expressed by the guardian of that person or by the duly authorised agent or proxy of the guardian.

   (3) A marriage of a person competent to enter into a contract of marriage shall be void if the marriage is brought about without his consent unless that person subsequent to that contract ratified the marriage either expressly or impliedly.

   (4) The provisions of this section shall be read together with the provisions of section 37.

8.   Marriage by fraud

   Where a marriage contract has been brought about by fraud the marriage shall be void, and the payment of mahr shall be unenforceable, unless the marriage contract has been subsequently ratified by consummation or otherwise.

9.   Form of contract of marriage

   (1) The contract of marriage must be in the form of proposal and acceptance, expressed at one meeting and uttered by the parties entering into the contract, either for themselves or as proxies or agents, or as guardians.

   (2) The proposal and acceptance must be expressed by the persons required to express the same–

   (a)   in the presence and hearing of each other; and

   (b)   according to the Shafi'i, Shiah Ismaili and Hanafi schools, in the presence and hearing of two witnesses simultaneously present.

   (3) Where witnesses are necessary to a contract of marriage they–

   (a)   must be sane and must have attained puberty;

   (b)   must be male; and

   (c)   must be Moslems.

   Exception: According to the Hanafi school there must either be two male witnesses or one male and two female witnesses.

   (4) According to the Shiah Ithna' Asheri school the presence of witnesses is not necessary, nor is it necessary for the marriage to be made known.

10.   Proposal and acceptance

   (1) The proposal and acceptance must be in unequivocal terms.

   (2) According to the Shafi'i and Shiah Ithna' Asheri schools it is necessary that the proposal should be made by the use of the Arabic words "tazwij" or "nikah". Where, however, the parties expressing the proposal and acceptance are unable to use the Arabic terms, equivalent terms in the language understood by them may be used.

   (3) According to the Hanafi school the proposal may be expressed in words implying a sale ('bai') or gift ('hiba'), or transfer of ownership ('tamlik') or any other expression implying a permanent union; but words implying a mere hiring, lending or licence do not give rise to a valid marriage.

   (4) Words implying marriage at a future time, or depending on a future event or condition, shall not constitute a valid marriage.

PART IV
PERSONS PROHIBITED FROM INTERMARRYING

11.   Prohibition by consanguinity

   (1) It shall be unlawful for a Moslem to marry–

   (a)   his own ascendants however high or descendants however low;

   (b)   his father's or mother's descendants however low;

   (c)   the sisters or brothers of any ascendant however high.

   (2) Marriage of persons prohibited to intermarry under subsection (1) shall be void.

12.   Prohibition by affinity

   (1) It shall be unlawful for a Moslem to marry–

   (a)   the ascendants or descendants however high or however low of his spouse (whether living or deceased);

   (b)   the spouse of any ascendant or descendant:

   Provided that marriage with a descendant of a deceased or divorced wife with whom marriage was never consummated shall be lawful.

   (2) According to the Shafi'i and Hanafi schools an irregular marriage, which has not been consummated, does not, for the purpose of establishing prohibition by affinity, make the parties husband and wife.

   (3) Marriage of persons prohibited to intermarry according to the foregoing provisions of this section shall be void.

13.   Effect of illicit intercourse

   (1) According to the Hanafi school an illicit between a man and a woman intercourse shall carry all the consequences of prohibition by affinity as if the intercourse were in course of consummation of a lawful marriage of the persons concerned.

   (2) According to the Shiah school where a man has an illicit intercourse with a woman it shall be unlawful for either to marry any ascendant or descendant of the other.

14.   Effect of sodomy

   According to the Shiah Ithna' Asheri school where two men commit an act of sodomy the active participant of that act shall be prohibited from marrying any of the following relations of the other participant:

   (a)   mother;

   (b)   foster-mother;

   (c)   daughter;

   (d)   foster-daughter;

   (e)   sister; and

   (f)   foster-sister.

15.   Establishment of fosterage

   (1) Where a child, under the age of two years, has been nursed by a woman other than its mother in accordance with the conditions prescribed in section 16–

   (a)   the child becomes the foster-child of the woman;

   (b)   the woman becomes the foster-mother of the child and her husband becomes the foster-father of the child.

   (2) In this section the term "husband" means the man with whom the foster-mother had intercourse, whether lawful or otherwise, as a result of which the woman becomes physically able to nurse the child.

16.   Conditions of fosterage

    No fosterage shall be deemed to have been established unless–

   (a)   according to the Shafi'i school, the child has been suckled not less than five times from the breast of a living woman;

   (b)   according to the Hanafi school, the milk from the breast of the woman reaches the stomach of the child regardless of the quantity of the milk, or of whether the child is actually suckled or the milk is otherwise administered to the child, or of whether, at the time when the milk is taken out of the woman's breast, she is living or dead;

   (c)   according to the Shiah Ithna' Asheri school–

      (i)      the milk by which the child was nursed proceeds from a lawful intercourse; and

      (ii)   (a)   the child is nursed direct from the breast of the same woman during one whole day and night and is not, during that time, suckled by any other woman or fed with any other food or drink (including water); or

         (b)   the child is nursed direct from the breast of the same woman for not less than fifteen times and is not, during the period when he is so nursed, suckled by any other woman; or

         (c)   the child is nursed direct from the breast of the woman for such length of time as to leave no doubt that her milk substantially contributed to the growth of the child and the formation of his flesh and bones; and

      (iii)      all the acts of nursing the child are completed before the child becomes two years of age;

   (d)   according to the Shiah Ismaili school–

      (i)   the milk by which the child is nursed proceeds from a lawful intercourse;

      (ii)   the milk is from the breast of a living woman and reaches the stomach of the child; and

      (iii)   the act of nursing is completed before the child becomes two years of age.

17.   Prohibition by fosterage

   (1) It shall not be lawful for a Moslem to marry–

   (a)   his foster-mother;

   (b)   her foster-father;

   (c)   the foster-descendants of his or her–

      (i)   father;

      (ii)   mother;

   (d)   any ascendant however high or any descendant however low of either of the foster-parents;

         Exception: According to the Shiah school prohibition is not established by fosterage between foster-children of the same foster-mother unless their foster-father is the same person;

   (e)   the sister or brother of any foster-ascendant:

         Provided that where the milk is ascribed to the foster-mother as the result of an illicit intercourse, the foster-child may marry the paternal or maternal aunts or uncles of his or her (illegitimate) foster-father;

         (Note: According to the Shiah school no fosterage is established in any event where the milk is ascribed to the foster-mother as the result of an illicit intercourse);

   (f)   the foster-ascendants, however high, or the foster-descendants, however low of the spouse (whether living or deceased):

         Provided that marriage with a foster-descendant of a deceased or divorced wife with whom marriage was never consummated shall be lawful;

   (g)   the spouse of a foster-parent or a foster-child; and

   (h)   according to the Shiah school–

      (i)   a descendant or foster-descendant of his or her own descendant's foster-father; and

      (ii)   a descendant of his or her descendant's foster-mother.

   (2) Marriage of persons prohibited to intermarry by reason of fosterage shall be void.

18.   Prohibition by conjunction

   (1) A Moslem shall not–

   (a)   being a male, have more than four wives at the same time; or

   (b)   being a female, have more than one husband at the same time.

   (2) According to the Shafi'i, Shiah Ismaili and Hanafi schools a man who is lawfully married shall not, during the continuance of the marriage, marry another woman who is so related, by consanguinity, affinity or fosterage, to the wife that, had either of the two women been a male, they could not have lawfully intermarried.

   (3) According to the Shiah Ithna' Asheri school a man lawfully married shall not, during the continuance of the marriage–

   (a)   marry the sister of his wife; or

   (b)   marry, except with the consent of the wife, the niece of that wife.

   (4) For the purposes of this section–

   (a)   a man shall cease to be married to a woman–

      (i)   upon the death of the woman; or

      (ii)   if he divorces the woman, upon the expiration of the iddat:

         Exception: According to the Shiah and Shafi'i schools, where a marriage is dissolved by irrevocable divorce cessation of the marriage for the purposes of this section shall occur immediately upon the irrevocable divorce being effected;

   (b)   a woman shall cease to be married to a man upon the death of, or divorce by, the man and completion by her of her iddat.

   (5) A contract of marriage in contravention of the provisions of this section shall be void, but the marriage contracted previous to the contract by which unlawful conjunction is established shall remain valid. Where it cannot be determined which of the two contracts of marriage was the earlier, and the two conjointly have the effect of establishing unlawful conjunction, both shall be void.

   Exception: According to the Hanafi school a marriage contracted in contravention of the provisions of subsection (1)(a) or subsection (2) shall be irregular but not void.

19.   Prohibition by iddat

    It shall not be lawful for any woman who is observing iddat to enter into a contract of marriage during the period of her iddat and every such contract of marriage shall be void:

   Provided that where a marriage is dissolved otherwise than by death of the husband and in circumstances which do not make it unlawful for the parties to remarry, it shall not be unlawful for the woman to contract marriage with the same husband during the period of her iddat.

20.   Certain special prohibitions under Shiah law

According to the Shiah Ithna' Asheri school–

   (a)   if a man knowingly marries a woman who is at the time of the marriage observing iddat following dissolution of her marriage with another man and consummates that marriage, he shall be prohibited for ever after from marrying that woman:

         Provided that if the purported marriage during the period of iddat is not consummated, the parties may lawfully intermarry on completion of the iddat;

   (b)    if a man has sexual relation with a woman lawfully married to another man, or with a woman who having been revocably divorced by another man is observing iddat, he shall be prohibited for ever after from marrying such woman.

21.   Prohibition by difference of religion

   (1) According to the Shafi'i and by Hanafi schools–

   (a)   a Moslem male cannot enter into a valid contract of marriage with any woman who is not a Moslem or a kitabia;

   (b)   a Moslem female cannot enter into a valid contract of marriage with any man who is not a Moslem.

   (2) According to the Shiah law a Moslem, whether male or female, cannot enter into a valid contract of marriage with any person who is not a Moslem:

   Provided that–

   (a)   where a kitabi husband of a kitabia wife converts to Islam while married to the kitabia wife (and the wife does not so convert) the marriage shall remain lawful notwithstanding the difference in religion;

   (b)   where a kitabia wife of a kitabi husband converts to Islam while married to the kitabi husband (and the husband does not so convert) the marriage shall be deemed to have dissolved as from the date of the wife's conversion and the wife shall be required to observe iddat; but if the husband also converts to Islam prior to the termination of the iddat the marriage between the parties shall revive immediately upon his conversion.

   (3) "Kitabia" means a woman, and "kitabi" means a man, who believes in a revealed religion possessing a Divine Book.

   (4) According to the Shafi'i school no person shall be deemed to be a kitabia or a kitabi unless it is shown that that person's ancestors, dating back to the times of prophet Mohammed, were kitabis.

   (5) A woman who does not herself profess to be a fire-worshipper or idolatress shall be deemed to be a kitabia if one of her parents is a kitabi or kitabia.

   (6) A marriage in contravention of the provisions of subsections (1) and (2) shall be void.

22.   Prohibition by supervenient illegality

   Where after a man or woman has been lawfully married–

   (a)   the parties acquire such foster-relations that had the relations existed at the time of their marriage they would have been prohibited to intermarry by reason of the fosterage; or

   (b)   one of the parties converts to a faith that had that party belonged to that faith at the time of the marriage, the parties could not have lawfully married by reason of the provisions of section 21,

the parties shall cease to be lawfully married.

23.   Prohibition during pilgrimage

   (1) According to the Shiah and the Shafi'i schools it shall be unlawful for a Moslem who is within the sacred territory of Mecca and who is in the state of ihram to enter into a contract of marriage, and every such contract of marriage shall be void.

   (2) According to the Shiah school if a person purports to enter into a contract of marriage in contravention of the provisions of subsection (1) knowing it to be unlawful for him to do so that person shall be prohibited for ever after from marrying the same party.

24.   Prohibition by divorce

   (1) Where a marriage is irrevocably dissolved by pronouncement by the husband of three divorces, the husband cannot validly remarry the woman whom he has so divorced unless–

   (a)   the woman is first lawfully married to another man; and

   (b)   the marriage with that other man has been actually consummated and after such consummation has been lawfully dissolved.

   (2) For the purpose of determining whether or not the second marriage by the woman has been consummated for the purpose of this section, the assertion or denial by the wife shall be presumed to be correct.

    Exception: According to the Shiah school the assertion or denial by the husband shall be presumed to be correct.

   (3) A marriage in contravention of the provisions of subsection (1) shall be void.

25.   Certain special rules of Shiah law and Shafi'i law regarding marriage for legalising remarriage and effect of nine divorces by same man

   (1) According to the Shiah school–

   (a)   where a marriage contracted with the second husband is contracted on the express understanding that its sole purpose is the legalisation of the proposed remarriage of the woman with the former husband and with a stipulation that the second marriage shall be effectual only for the said purpose, both the second marriage and the stipulation shall be void;

   (b)   if a woman is divorced nine times by one husband (being twice intermediately married to another or others) the husband who has divorced her nine times shall, for ever after, be prohibited from marrying the woman.

Effect of "li'an"

   (2) According to the Shiah and Shafi'i schools, where a man has made a "li'an" against his wife and they have accordingly been separated, the husband shall be prohibited, for ever after, from re-marrying the wife with whom he has so separated.

PART V
AGENTS OR PROXIES FOR MARRIAGE

26.   Minors and persons of unsound mind cannot act as agents or proxies

   (1) A person who is not a Moslem, or has not attained puberty, or is of unsound mind, or is in the state of ihram, cannot validly act as an agent or proxy for marriage.

   (2) According to the Shafi'i school a woman cannot act as an agent or proxy for marriage.

27.   Authority may be specific or general

   An agent or proxy may be authorised to contract a marriage–

   (a)   with a specified person only;

   (b)   with a person answering to a specified description; and

   (c)   generally, with any person: Provided that an agent or proxy cannot, unless he is expressly authorised to do so, contract his principal in marriage either with himself or with any person who is his ward for marriage.

28.   One person may represent both sides

   The same person may have, or be given, authority to act in a marriage as proxy or guardian for both parties; or as proxy or guardian for one party, and principal on his own behalf; or as proxy for one party and guardian for the others.

29.   Subsequent ratification of marriage

   (1) Where a marriage is purported to be contracted by a person on behalf of another person without the knowledge or authority of that other person, the latter may elect either to ratify or disown the marriage.

   (2) Where a marriage is purported to be contracted by any person in the circumstances described in subsection (1) and the person on whose behalf the marriage is purported to have been contracted–

   (a)   disowns the marriage, the marriage shall be void;

   (b)   ratifies the marriage; either expressly or impliedly, before the death of the other party to the marriage, the marriage shall be valid in the same manner as if it had been initially contracted by the authority of the person ratifying.

   Exception: According to the Shafi'i school a marriage contracted in the circumstances described in subsection (1) shall be void and cannot be ratified.

PART VI
GUARDIANS FOR MARRIAGE

30.   Guardian defined

   A guardian for marriage is a person who is authorised by law to make a valid contract of marriage on behalf of a minor, a person of unsound mind, or, according to the Shafi'i school and the Shiah Ismaili school, a woman of any age.

31.   General rules as to capacity of guardian

   (1) No person who is under the age of puberty, or of unsound mind, or who is not a Moslem, or who is in the state of ihram, may act as a guardian for the marriage of a Moslem.

   (2) In addition to the disqualifications prescribed by subsection (1), according to the Shafi'i school and the Shiah Ismaili school, no woman may act as a guardian for marriage.

32.   Persons entitled to act as guardians

   (1) According to the Shafi'i school the following persons are entitled, in the order of precedence in which they are mentioned below, to act as guardians for marriage:

   (a)   the father;

   (b)   the nearest paternal grandfather;

   (c)   full brother;

   (d)   consanguine brother;

   (e)   full brother's son;

   (f)   consanguine brother's son;

   (g)   full brother of the father;

   (h)   consanguine brother of the father;

   (i)   son of the father's full brother;

   (j)   son of the father's consanguine brother:

    Provided that no person other than the father or the paternal grandfather may act as guardian for the marriage of a minor.

   (2) According to the Hanafi school, the following persons are entitled, in the order of precedence in which they are mentioned below, to act as guardians for marriage:

   (a)   the father;

   (b)   the nearest paternal grandfather;

   (c)   the brothers and remoter male paternal relatives, in the same order of preference as for inheritance by residuaries under the Hanafi law;

   (d)   the mother;

   (e)   maternal relatives (whether male or female):

         Provided that no maternal relative shall act as a guardian for marriage unless he is so related to the person for whom he is acting as a guardian that he would be prohibited from marrying that person under the provisions of section 11.

   (3) According to the Shiah Ismaili school the following persons are entitled, in the order of precedence in which they are mentioned below, to act as guardians for marriage:

   (a)   the father;

   (b)   the nearest paternal grandfather;

   (c)   a son;

   (d)   son's son;

   (e)   full brother;

   (f)   full brother's son;

   (g)   consanguine brother;

   (h)   consanguine brother's son;

   (i)   full brother of the father;

   (j)   son of the father's full brother;

   (k)   consanguine brother of the father;

   (l)   son of the father's consanguine brother:

   Provided that no person other than the father or the paternal grandfather may act as guardian for the marriage of a minor.

   (4) Where two or more persons are included in any one group of persons entitled to act as guardians for marriage under subsection (1), subsection (2) or subsection (3)–

   (a)   according to the Shafi'i school and the Shiah Ismaili schools, the nearer shall be preferred to the more remote;

   (b)   according to the Hanafi school the nearer shall be preferred to the more remote:

   Provided that amongst collaterals, a male shall be preferred to a female.

   (5) According to the Shiah Ithna' Asheri school the father and the nearest paternal grandfather are alone entitled to be guardians for marriage, and either of them may contract a valid marriage on behalf of the person for whom he acts as a guardian.

33.   Where two or more persons entitled to be guardians

    Where more persons than one are equally entitled to be guardians for marriage of any person, any one of them may lawfully contract such person in marriage.

34.   Contract by a remoter guardian

   (1) According to the Shafi'i, Hanafi and Shiah Ismaili schools where two or more persons are entitled to be guardians for marriage of any person, and the remoter guardian, without the consent or authority of the nearest entitled guardian, purports to contract that person in marriage, the contract shall be void unless ratified by the nearest entitled guardian.

   (2) According to the Hanafi and Shiah Ismaili schools where the nearest entitled guardian for marriage is at such distance that it is not possible to communicate with him without undue delay or inconvenience and there is a possibility of the opportunity of contracting the marriage being lost by delay, the person next entitled to act as guardian for marriage may contract the marriage.

35.   Testamentary guardians not permitted

    Neither the father nor any other person entitled to be a guardian can appoint, by his will or otherwise, a guardian for marriage of his ward, and every such appointment shall be void.

   Exception: According to the Shiah Ithna' Asheri school the father or, if the father has predeceased the paternal grandfather, the grandfather may appoint a testamentary guardian for the marriage of his child or grandchild of unsound mind who has attained puberty while of unsound mind, and that guardian may enter into a valid contract of marriage on behalf of the deceased's child or grandchild, if that contract is in the interest of the child or grandchild.

36.   Where no-one entitled to be guardian is living

   (1) Where no person entitled to act as guardian for marriage of any person incompetent to contract a valid marriage on his own behalf is living, or where the person entitled to act as guardian refuses or neglects to act as the guardian, or is at such distance that it is not possible to communicate with him without undue delay or inconvenience, and there is a possibility of the opportunity of contracting the marriage being lost–

   (a)   according to the Shafi'i, Shiah Ismaili and Hanafi schools, a kadhi may act as the guardian or a court of competent jurisdiction may appoint any fit and proper person to act as the guardian;

   (b)   according to the Shiah Ithna' Asheri school–

      (i)   in the case of a person who has not attained puberty or who is of unsound mind, having attained puberty while of unsound mind, no valid contract of marriage can be entered into on behalf of the person; and

      (ii)   in the case of a person who has become of unsound mind after attaining puberty, the kadhi may act as the guardian or a court of competent jurisdiction may appoint any fit and proper person to act as his guardian for marriage.

   (2) The term kadhi, when used in context of the Shiah Ithna' Asheri school, means a mujtahid or his representative.

37.   Guardian to seek consent

   (1) The guardian for marriage of a person who has not attained puberty or who is of unsound mind may contract that person into marriage without his consent.

   (2) The guardian for marriage of any person who has attained puberty and who is of sound mind, shall not contract that person in marriage without his consent; the consent may be either express or implied from conduct.

   Exception: According to the Shafi'i school the father or the paternal grandfather acting as guardian for marriage of a woman who is not a thayyaba may contract a valid marriage on behalf of the woman without her consent:

   Provided that a court of competent jurisdiction shall annul the contract at the instance of the woman if she satisfies the court that the contract is to her manifest disadvantage and that the marriage has not been consummated.

   (The term "thayyaba" means a woman who has lost her virginity as a result of sexual intercourse. In Shiah law a woman does not become a thayyaba unless the intercourse was pursuant to a valid marriage.)

38.   Right to repudiate marriage on attaining puberty or recovering reason

   (1) Where a person who has not attained puberty or who is of unsound mind has been contracted in marriage by his father or his paternal grandfather, or, according to the Shiah school, by a testamentary guardian or the kadhi pursuant to the authority vested in them by section 35 and section 36 respectively, the contract of marriage shall be valid and binding and that person shall not be entitled to repudiate it on attaining puberty or recovering reason, as the case may be:

    Provided that where the father or the paternal grandfather has acted fraudulently or negligently or to the manifest disadvantage of that person, that person may repudiate the contract on attaining puberty or recovering reason, as the case may be.

   (2) According to the Hanafi school, where a person who has not attained puberty or who is of unsound mind has been contracted in marriage by a guardian other than the father or the paternal grandfather, that person may repudiate the marriage on attaining puberty or recovering his reason, as the case may be.

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