Tuesday, September 29, 2009

Bride and Bride-Groom

Bride and bride-groom are 2 of rukun nikah. There are certain requirements fulfilled for bride and bride-groom. The requirements are:
1. Bride:
  • Female
  • Islam
  • age of bride to marry at least is 16 years old
  • if she has not reaches 21 years old, she must get her parent’s permission.

    Why must there permission? Because marriage is not only the matter of the couple but also the matter of the family. Mereover, if the couple is still young. And according Adat Law, marriage is not only unite between bride and brgroom, but unite between 2 big families too.

    Is the parent’s permission is absolute requirement? Not really, because it can substituted by one else’s permission.
  • Marriage is based on agreement bride (no coercion).
    Agreement of bride can formed a clearly and real statement with written or oral or sign form. It also can quiet form as far as no clearly rejection.
    How about one who deaf or dumb is? For dumb or deaf person, agreement can state with a written form or a sign understood.
    Pegawai Pencatat Nikah (Registerer Official of Nikah), before marriage performed, will ask the couple’s agreement in front of 2 nikah witnesses. If marriage is not agreed by one-side so it can not performed.
  • no marriage obstacle.

2. Bride-groom:
  • Male
  • Muslim
  • at least is 19 years old
  • If bride-groom has not reached 21 years old yet, he must get his parent’s permission
  • No coercion
  • no marriage obstacle.

Underage Marriage

Several times ago public of Indonesia was created a sensation by controversial marriage. Syech Puji Widianto, a calligraphy businessman from Semarang, have married Lutfiana Ulfa (13 years old)as 2nd wife.

The underage marriage case boomed after a NGO surfaced it and press blew up it. Many people commented. From religious figure, activist NGO, law expert, public figure, gynecologist, until high school students. Even Komisi Nasional Perlindungan Anak (National Commission for Protection of Children) interfered with this case.

Syech Puji has accused of breaking article of underage pornography (pasal pencabulan anak di bawah umur), and breaking Children Protection Law (Undang-undang Perlindungan Anak) too. But he never feel guilty for married Ulfa, because, although still 13, Ulfa has akil baligh, has grown into an adult. And he do not want to divorce Ulfa.

Is Syech Puji guilty? Is the marriage valid?

According to Islamic Law, a marriage is valid if there are bride, bride-groom, wali nikah, 2 male witnesses and ijab kabul. In Islam, requirement of girl to marry ia akil baligh, and Ulfa has akil baligh and she said no coercion in her marriage. So that according to Islamic Law, the marriage is valid, and of course Syech Puji is not guilty. But in Indonesia requirement of akil baligh is not enough. Indonesian Law (State Law) regulates border of minimum age for bride and bride-groom. Based on Undang-undang Perkawinan (Marriage Law) and Kompilasi Hukum Islam (Compilation of Islamic Law), requirement for a bride is at least 16 years old and for bride-groom is at least 19 years old. If border of minimum age is broken so that the marriage is voidable.

The problem is the marriage performed siri (nikah siri). Nikah Siri is performed according to Islamic Law without State Law, so that no registered, no proof, so that the marriage can not voidable. To force Syech Puji to divorce Ulfa is not a wise decision. Ulfa is too young to be a widow. And I think divorce can influence Ulfa’s mental growth. Moreover, in a press conference Ulfa ever said she loved Syech Puji and she did not want separated from him.

What will happen to Ulfa and what will happen with this case? Until now this case is still processed.

Wednesday, September 23, 2009

Islamic Law with Design of Indonesia

Law in Indonesia has been influenced by many background, like ethnic group, religion and beliefs, also by Dutch colonial rule. It can understood because Indonesia is country with thousands islands and thousands ethnic groups. Each ethnic group has its rule that different from the others. There are also some religions and beliefs. And for 350 years Indonesia was under Dutch colonization. So that Indonesian Law is plural.

There are 3 important elements creating Indonesian Private Law . They are: Western Law (BW, product of Dutch colonial), Islamic Law, and Adat Law (native law of Indonesia). Sometimes Islamic Law and Adat Law are in force together, so that sometimes can’t differented where is Islamic law and where in Adat Law.

For example, in marriage ceremony in Central Java. In Adat marriage ceremony, there is siraman (showering ceremony), that a bride/groom is showered by parent and the olds of the big family. At the end of the sesion, the parent fall the water from kendi (jar) in order to bride/goom can wudhu. Wudhu is ritual washing in Islam before someone sholat.

Still on marriage ceremony. After ijab-kabul (I think it’s the true marriage), the couple do sungkeman. Sungkeman is a Java ceremony that the couple ask the parent’s blessing with squatted in front of the parent. It’s a honoring form to the parent. (Look Qu’ran, Surah Al Ahqaaf: 15).

Siraman and sungkeman are just little proofs that there are common and harmony between Islamic Law and Adat Law.

That’s why Islamic Law in Indonesia appears with special design of Indonesia. It is more reflect sistem and culture of Indonesia. So that in certain parts Islamic Law in Indonesia will show differences with Islamic Law in other countries like Saudi Arabia, Iran, Egypt and Pakistan. Nevertheless, Islamic Law in all countries, in principle are the same, because they have same legal sources, Qur’an and Sunnah. (Abdurrahman H., SH MH, Kompilasi Hukum Islam di Indonesia)

Tuesday, September 22, 2009

Peminangan (Proposal of Marriage)

Peminangan (proposal of marriage)is a process of marriage ceremony that done before getting married. It regulated on Compilation of Islamic Law in Indonesia (KHI) article 11, 12, and 13. Peminangan is made by a man or his representative.

A man can propose a girl or widow after her iddah is finish. Iddah is waiting-time for a widow.There are certain women that prohibited by a man. They are:
1. A woman who fallen talaq (divorce) by her husband, and still in iddah raj’iah.
2. A woman who has proposed by a man else and the proposal has not broken yet or the proposal has not rejected yet.

In many parts of Indonesia, enforcement of Islamic marriage is united in the Adat ceremony, included peminangan/lamaran (proposal of marriage). For example in Java. The proposal is made by the parents of boy to the parents of girl. It is usually made as a request by the one family to become the in-laws of other. Usually, it always conveyed by a representative, someone very close to the boy’s family. Today because of practicability, it is often done by the parents themselves.

The proposal has not resulted in legal consequence yet. The proposal can broken by a boy for there is a statement about broken of the proposal or on the quiet the boy keeps away from and leaves the girl.
Boy and girl have the same right. Even has been request/conection, a boy’s side or a girl’s side are free to break proposal conection. Freedom to break proposal conection is done with good ways according to religious values and custom. It is important in order to keep peace between one and the other, and to keep honor each other.

Usually before make a proposal, the parents of boy had investigated about the girl and her family, also about probability the proposal accepted. On the contrary, before accept the proposal, parents of the girl has also investigated the boy and his family. It accordings to Java idiom bibit bobot bebet, that the parents will see descended, capability and dignity before take someone become their child-in-laws. In Islam there is Sunnah Rasul that someone is married for beauty, wealth, dignity and religious.

After the proposal accepted, the result is not directly a marriage. There is a priod of engagement. The engagement is based on an agreement between the families of the future bride and groom. Thus, there are rights and duties between the couple and their families. Engagement is started by giving a special gift (money or goods) from the boy’s side to the girl’s side. In most regional language, the word for engagement gift is panjer or panganchang or pengikat (binder), and it is taken from verb mengikat (to bind). The mean, there is connection between 2 families.

Today, there is an exchange of rings by the couple themselves, and the engagement begins from the moment of exchange. Thus, the formal binding of the families has to some extent been indicated by the binding of the couple. The program of giving binder and exchange of the rings are attended by the families and certain neighbours, and then are followed by a communal feast (slametan/syukuran/tasyakuran). The slametan is given by the girl’s parents.

Monday, September 21, 2009


Nikah, or nikkah, is contract between a bride and bride-groom, and part of an Islamic marriage, a strong covenant (mithaqun ghalithun), as expressed in Qur’an 4:21.

Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman are proclaimed as husband and wife and can live together and carry on the marital duties. These are : 1) Giving free consent to the marriage personally or through a close relative like father (called Wali). A man and a woman say in clear voice three times that they accept (name of the person and his/her father name is called) as their husband/wife; 2) The amount of Haq-e-Mahr (marriage money) is agreed upon, announced, and paid to the bride at the spot or paid in the future; 3) Two adult free men witness the ceremony; 4) The nikah is publicased/advertised widely.

In some engagement ceremonies, all the above 4 conditions are fulfilled. Therefore, such engagements are full-fledged nikahs.

The nikah contract requires the consent of both parties very strictly if they are adults. There is a traditions in some muslim countries, outside of the religion, to pre-arrange a marriage for young children. However, the marriage still requires consent of the concerened man and woman when they reach adulthood when the wedding actually goes ahead. Islam allow divorce (talaq) so this contract is revocable. Marriage is seen as a necessity in Islam and is seen as helpful in avoiding zina (extramarital sex) or cruelty. A marriage which is carried out unofficially without informing the public is called nikah urfi.

(From: Wikipedia, the free encyclopedia)

Types of Marriage

Types of nikah are :
1. Nikah
Nikah (literally: contract) is the first, and most common, form of marriage for muslims. It is described in the Qur’an in 4:4.
Regulation of nikah:
· It is aimed to be permanent, but can be terminated by husband engaging in the divorce process or the wife seeking a divorce
· The couple inherit from each other
· A legal contract is signed when entering the marriage.
If a divorce date is determined in the nikah contract :
· In Sunni jurisprudence, the contract is vioded
· In Shia jurisprudence, the contract is transformed into a nikah mut’ah.
Requirement of witnesses of nikah:
· Sunni: two
· Shia: none.
2. Nikah Mut'ah
3. Nikah Misyar.
(From : Wikipedia)

Islamic Marriage Law in Indonesia

Marriage Law in Indonesia is still plural. There are more than two laws in forced. They are: Western Marriage Law, Islamic Marriage Law, and Adat Marriage Law. The pluralism is caused from dividing of the population at period of Dutch colonialization ago.

Indonesian Marriage is regulated in Law number 1/1974, The Marriage Law. Actually the matters regulated in UUP for parts is according to Islamic Marriage Law. Whereas a detailed rule on Islamic Marriage Law in Indonesia, is regulated in Compilation of Islamic Law in Indonesia Book I. Neither UUP nor KHI contravenes Qur’an, because Qur’an is legal source of Islamic Marriage Law including in Indonesia.

What is marriage?

According to Compilation of Islamic Law in Indonesia, marriage under Islamic Law, is nikaah, is a strong akad (covenant) or miitsaaqan gholiidhan to obey Allah’s order and do it mean worship, and for a purpose of created household life that sakinah, mawaddah and rahmah.

The matters regulated in Islamic Marriage law in Indonesia (next just mentioned as marriage law) are:
1. Proposal of marriage (peminangan)
2. Principle and requirements of marriage
3. Marriage gold (mahar/mahr)
4. Prohibition of marriage
5. Marriage Contract
6. Marriage cause of conceived (kawin hamil)
7. Polygamy
8. Prevention marriage
9. Void of marriage
10. Rights and obligations of spouses
11. Property aquired during marriage
12. Brought up the children
13. Guardianship
14. Dissolution of marriage
15. Consequence of breaking of marriage
16. Rujuk
17. Mourn period (masa berkabung).

To commit a marriage, the matters must be there are (Rukun Nikah, basic prinsiple of nikah) :
  1. bride-groom
  2. bride
  3. wali nikah
  4. two witnesses
  5. ijab-kabul.

Based on Compilation of Islamic Law article 4, a marriage is legal, if it done according to Islamic law, and according to article 2 The Marriage law. Every marriage must be registered so that every marriage must done in front of Registerer Official of Nikah, and the couple will get Akta Nikah (document of nikah) as a proof that they have married.

Is it mean that marriage not done in front of Pegawai Pencatat Nikah illegal?

The mean of legal in here is legal according to State Law. So that a marriage not done in front of Pegawai Pencatat Nikah (for example, it done in front of ustad or kyai) is still legal just according to Religious Law (Islamic Law), but according to State Law it is not legal because of no proof.

What must do in order that the marriage can be legal not only according to Islamic Law but according to State Law too? If a marriage can not proved with Akta Nikah, it can asked Itsbat Nikah to Religious Court.