عيوب النكاح في الفقه والقانون

Abstract

In this research, the writer has simplified that: in the case of defect in marriage within the Islamic Fiqh, which is agreed among the Fuqaha to annul the marriage is divided into three aspects. Firstly, the defects which are related solely to the man due to the truncated private part and impotent; secondly, the defect which is related solely to the women due to a growth within the private part which halts the process of intercourse between the spouses; and thirdly, defects which can be found from either of the spouses such as insanity and various diseases related to thereof. Within this research as well, it also mentioned about the defects within the modern world which have not been mentioned by the Fuqaha prior, for example AIDS and the HIV. Apart from that, the research also focuses on the comparative aspect between the Islamic Fiqh and Islamic Family Law Order, 1999 of Brunei Darussalam. The conclusion of this research is that, under the Islamic Family Law Order, 1999 of Brunei Darussalam has given the priority to the husband and wife in regards to annulling their marriage if either of them brought the matter before the Qadi and able to adduce the defect from either of them, whether it is from the disease which was mentioned before by the Fuqaha or the disease within the modern world. And as for the dissolution which is cause by impotent, therefore the law within the Islamic Family Law Order, 1999 has taken the approach of the Fuqaha which is the man who has the impotent is given a chance within the time limit of one year for the Qadi to declare that he is nit impotent.