Hakam

Hakam is mediator in syiqaq case. Syiqaq is hard dispute between husaban dan wife. Hakam consists of 2 sides 1 from husband and 1 from wife.

"And if you worry there is dispute between them, so send a hakam from man's family and a hakam from woman's family. If the two hakams intend make reparation, sure Allah help husband-wife.... " (Quran 4:35)

So if there is dispute, the problem is solved by hakam first.

Authority of Hakam

1. According to Fiqh expert:
Hakam is duty to give advice to the couple. If hakam fails to peace husband and wife, so hakam can divorce the couple although one of sides disagree. How to divorce the couple? Hakam of husband's side fall talak 1 by paying iwadl to hakam of wife's side, then hakam pf wife's side accept the talak 1 and iwadl.

2. According to Madzab Hanafi:
Hakam only duty to advise to the couple, and help to find problem solving. If hakam fails, hakam can not divorce the couple. So, the case is brought to the court because only court tahat can divorce the couple.

In Indonesia, stipulation about hakam from madzhab Hanafi is inforce.

Law of Talak

-->

Legal categories in Islam are 5, i.e : fardlu (compulsory), sunnah, halal, makruh, and haram. So does talak.

Possibility of talak law:

1. Fardlu

Fardlu meant: if done will get reward, and not done will get sin. Husband obligates to fall talak within enforcement of hakam’s decision in syiqaq. So if husband fall talak, he will get reward from God, and if he doen’t fall talak he will get sin.

Hakam: peacemaker that has duty to make husband and wife peace. Hakam consist of 2 people, 1 from husband’s family and 1 from wife’s family.

Syiqaq is hard dispute between husband and wife.

2. Sunnah (something if done will get reward, but if not done will not sin). Talak law is sunnah if wife made a sin (has love affair with other man), or if husband can not able to do his duty as husband.

3. Halal (something that permitted, no matter if it done or not). Talak law is halal if wife can not makehusband pleasure.

4. Makruh (something if done will not sin, but if done will get reward). Talak law is makruh if woman is shaleh (good) woman.

5. Haram (something forbidden, so if done will sin and not done will get reward from Allah). Talak law is haram if wife in menstruation condition when talak is fallen.

Classification of Talak

-->

There are some kinds of talak, and each talak has different consequence.

According to the number, talak is divided into:

1) Talak Raj’i : talak that fallen once or 2 times (talak 1 and talak 2).

Consequence of talak Raj’i: husband has probability to make peace with wife. Mean, husband and wife can back as family (rujuk). Example, talak 2 that fallen to wife without paid iwadl

2) Talak Ba’in Shughraa (small Ba’in talak), is talak that forbidden to rujuk, but may make new akad nikah although ex-wife in iddah period.

Talak Ba’in Shughraa consists of:

• Talak 1 or talak 2 that fallen to wife whom has been never mixed (qobla al dukhul),
• talak 1 or talak2 by khuluk. Khuluk is divorce that happen because of wife’s request and wife give ransom (iwadl) for husband. And amount of ransom is based on husband’s agreement,
• Talak that fallen by Religious Court.

3) Talak Ba’in Kubraa (big ba’in): talak that happen in 3 times. After talak ba’in kubraa is fallen, husband and wife can’t rujuk and can’t marry again, except there is certain requirement.

Certain requiremet is:

• ex-wife had married with other man and then divorced ba’da al dukhul (husband-wife relation is accured),
• and she passed her iddah period.

Except those classifications, there are still talak sunny and talak bid’i.

Talak Sunny is talak that permitted. That is talak that fallen when wife in her holly period (not in menstruation condition), and she is not mixed by her husband in the pure period.

Talak bid’i is talak that forbidden. That is talak that occur when wife in menstruation condition, or wife in pure condition but she has been mixed by her husband in the period. So it possible that wife pregnant.

Talak

Talak (thalaq) is husband’s confession in front of session of Raligious Court that become one of reasons of breaking of marriage.

Islamic law stipulates that right to fall talak exist on husband. Why? It’s based on consideration:

• a man usually thinks clearly before act,
• consequences of talak is burdened on husband.

Consequences of talak

If marriage is broken because of talak, so ex-husband has obligations:

• To give proper mut’ah to ex-wife, except the ex-wife is qobla al dukhul (has been never touched during marriage). Mut’ah is a gift from ex-husband to ex-wife whom is fallen talak. Form of mut’ah: goods or money or other that can make ex-wife pleasure.

• To give living cost to ex-wife during iddah period, except the ex-wife has been fallen talak bain or nusyuz (disobey) and not pregnant. Iddah is period that ex-wife can not marry again after her divorce.
• Paid all mahar debt, or paid ½ of mahar debt if qobla al dukhul
• Give hadhanah fee to his children whom under 21 years old. Hadhanah is cost to care and educate children.

Validity of Talak

Talak that fallen is lawful as long as fulfil certain requirements. The requirements are:

• Someone that fall talak must baligh, has sound of mind, and no coercion
• Existance of sighat (clear statement). Sighat can be said by: clear words and can be understood (sharih), satirical words (kinayah)
• Must be talked in front of 2 witnesses. The witnesses must male and fair.

Figure of Talak

Number of talak is 3 (3 times). Each talak must be fallen step by step. Why? In order that husband has chance to think clearly, divorce or not.

Breaking of Marriage

-->

Everybody almost always want s happy marriage, eternal love, and everlasting marriage. But noone can against destiny. Sometimes people make a mistake that influenced their life, including their houshold life.

A marriage can break because of:

• deadth
• divorce
• court decision.

According to Islamic Law, breaking of marriage that result from divorce, can accur because of:

1. husband’s action: talak, illa, dzihar
2. wife’s action: tajwidl, khuluk.

According to Compilation of Islamic Law article 114, divorce can happen because of:

• talak
• divorce indictment

Court Decision that result in breaking of marriage, is connected with:

• violation of taklik talak (conditional divorce)
• fasakh (revocation of marriage)
• syiqaq (quarrel between husband and wife that result in breaking of family)
• li’an (curse oath)
• riddah (convert).

When a Mother Give a Lesson to Her Son

Every parent obligates to give affection, good care and good education to their children. And sometimes, children make a naughtiness, and the parents almost always forgive them.

What about if the naughtiness tends to crime? The parents will give different reaction each other. Some people will forgive their children directly and because of shame they will try in order to no one knows about their children’s crime. But the others prefer to give punishment to the children before forgive them.

The last option maybe descripted on action of Ayu Azhari, an Indonesian actress. She has indicted her son (15 years old) of stealing her US$ 50. Accompanied by her husband, Mike Tramp, ex-White Lion vocalist, Ayu reported this case to police.

On an interview, Ayu said, “It’s not about money. That ‘s not the first time. I just want make him repent it.” She also said that she has much love for her children, but on other side she also must give strict decision.

Now, Ayu’s son is free after he regretted and promissed to not do it.

Marital Property

-->

Talk about marriage, will always talk about property. Because marriage can not be separated by marital property.

Marital property , in Indonesian Law is known as harta kekayaan dalam perkawinan (syirkah). It is all wealths that got by husband and wife during marriage, together or personally.

Marriage Law number 1 year 1974 and Compilation of Islamic Law divide marital property in:

• Harta Bawaan (brought property, original property): property that was taken in marriage. It ussually under each side. Example, before marriage a wife bought a car, so the car is included in her harta bawaan. Harta bawaan has some differential terms in some region. Like in Java, it it called gono-gawan. In West Java, barang bawa. In Bali, babaktan.
• Harta Perolehan (acquisition property): property that got by husband or wife personally after marriage. It ‘s got by special way, like inheritance, or gift that required not includen in communal property.
• Harta Bersama or harta pencaharian (communal property): property that got the couple during marriage, included benefit, profit of brought property and acqusition property. It is under control husband and wife, together. Example, X has had rice-field, after married the rice-field give some profit. The profit is used to buy a house. So the house is included communal property, although it is benefit of rice-field as brought property. In Java, harta bersama is called gono gini.

The diversification of marital property is very important. It’s connected to inheritance and divorce case. If one of the couple died, example wife, by diversification can be stipulated which goods can be shared. Which wealth can be inherited by husband, by children and other family. Included which property that must be return to clan (remember, Indonesians always obey Adat Law too).

So in divorce case. By classification, esier to stipulate which husband’s property, which the wife’s property. Included which property that must be shared into 2.

A Story in Period of Prophet Daud and Prophet Sulaiman

The old story below is a story that jugde’s consideration (qarinah) can be a proof. It happened in era of Prophet Daud and Prophet Sulaiman.

There were 2 women quarrelled each other, to get a child. The first woman was rather young, and the other was rather old. Prophet Daud decided to win the old woman because of her confession as the true mother.

Prophet Sulaiman who joined in the court, put a sword and pretended ready to split the child. He said, “It’s fair”.
The rather old woman agreed with spliting. But the rather young woman said that she gave the child to the other voluntarily providing the child won’t to split. If Sulaiman split the child, the child would die.
Prophet Sulaiman decided to give the child to the rather young woman. Because she is the true mother of the child. A mother will never let her child die.

Polygamy and Mutilation

For man that committed polygamy or has intention to do it, must be careful and must have good consideration. The polygamists really must give justice for his wives, and never make his wife/wives broken-heart. Because once a polygamist make his wife/wives annoyed, it can result in a fatality.

At least that was happened to Karyadi. The case is bomming in this week.

Karyadi, 53 years old, is a polygamist. He has 4 wives. Slice of his body was found in Kalibaru, Kramatjadi, East Jakarta. Yes, he is victim of murder and mutilation.

From investigation, police found proof that Karyadi killed and mutilated by Muryani (53 years old), his 2nd wife. And she has been arrested.

Sunday, October 12, Karyadi was struck by gas tank, then killed and his body was cut in 14 parts. Then Muryani threw away slices of Karyadi's body to some different places.

Motive of killing is heartsick. Knowing her husband married again, Muryani was jealous and very angry. She felt be betrayed. On an interview, she was asked about her feeling after killed her husband. She said, no regret.

Until now, this case is still processed by police. And all slices of Karyadi's body have not found yet.

The case above is lesson for polygamist or man intended to commit poygamy. Wife's permission is very, very important. Fair to all wives is absolute attitude. But fair for someone does't always mean fair to the other. Unfair husband can break wife's heart. And a painful woman sometimes can be very dangerous.

Li'an Oath (2)

Li’an or Li’an Oath (Curse Oath) happens because husband accuse wife commited zina (adultery) and or refuse the child in his wife’s uterus or refuse child had born by his wife. Whereas wife deny husband’s indictment and or refutation.

Li’an is regulated in Quran Surah An Nur section 6-9.

“And people who accuse their wife (zina), whereas they have no witness except themselves, so the testimony is swear 4 times by the name of Allah, actually he is included true people.” (Quran 24:6)

“And (oath) fifthly: that Allah’s curse for him, if he is included the liars.” (Quran 24:7)

“His wife is avoided from punishment by her oath 4 times by the name of Allah that actually her husband is really included the liars.” (Quran 24:8)

“And (oath) fifthly: that Allah’s curse for her if her husband is included the true people.” (Quran 24:9)

So content of Quran (24: 6-7) is husband’s oath, and wife’s oath is in Quran (24:8-9). And in Indonesia the oaths are poured in Compilation of Islamic law in article 127.

The manner of Li’an
The oath is done by husband first, then followed by wife’s oath. Husband’s oath and wife’s oath are unity. And they can not be separated.

When li’an is valid?
Li’an is legal if it is only performed in front of session of Religious Court.

Legal Consequences

Li'an, of course, has some legal consequences. They are:

• wife is avoided from punishment of zina
• the marriage is broken by Court decision, and the divorce called Talak Bain Kubro
• after divorce, they are forbidden to marry again forevermore
• the child only has nasab (relation) to mother, so has right to inherit only from mother.