Islamic Family Law in Indonesia

Plurality of Inheritance Law in Indonesia: Similarity and Difference

2011-12-05T07:19:00.000+07:00

Ritual of One Suro: Celebration of Javanese New Year Without Party and Fireworks

2011-11-27T17:31:00.000+07:00

A Female Migrant Worker Who was Raped Will Face Beheading in Saudi This Week

2011-11-02T07:22:00.000+07:00

The Journalists Wore Javanese Traditional Costume in The Royal Wedding of Yogyakarta

2011-10-22T16:33:00.000+07:00

The Journalists Wore Javanese Traditional Costume in The Royal Wedding of Yogyakarta

Tradition of Siraman (Bathing) in Javanese Wedding

2011-10-19T13:58:00.000+07:00

Tradition of Siraman (Bathing) in Javanese Wedding

Position Adat Law in Indonesian Legal System

2011-10-05T17:21:00.000+07:00

Adat law is one of components of legal system in Indonesia. It’s mirror of traits, culture, and values of Indonesians.

Adat Law is one of component of Legal System in Indonesia, beside Western Law and Islamic Law. Adat Law is very important, because it’s original law of Indonesia.

Adat law, or it’s often only mentioned as Adat, is unwritten law. The source of Adat Law is habits and customs that done continuously and obeyed as law by Indonesians. Because Adat is unwritten, grow, developed and maintained in social life, so can adjust to changing times and elastic.

Underage Marriage and Domestic Violence

2011-10-04T14:13:00.000+07:00

Underage Marriage and Domestic Violence | BeyondJane

Breaking Egg in Javanese Marriage and its Values

2011-09-10T11:06:00.009+07:00

Javanese marriage is marriage that fulfilled by ceremonies. Ingredients that used in the ceremonies are to much and sometimes unique. Even chicken egg is used in a ceremony.

One of unique marriage ceremonies of Javanese tribe is connected to egg is ‘ngidak endog’ (breaking egg) that continued by ‘wijik’ (cleaning). In the ceremony, the bridegroom must break a chicken egg by his feet. Then the bride cleans the bridegroom’s feet that dirty by flower water.

Those ceremonies contain traditional values. Contain good hopes. Breaking the egg symbolizes that the couple’s aura has faded sexually. Bride cleans bridegroom’s feet symbolizes wife’s submission to husband. It also symbolizes that good behavior will effect good result too. It’s a hope that from the marriage will be borne good children that will dedicate their selves to parent, family and country.

Sungkeman, A Form of Respect for Older

2011-08-29T06:54:00.002+07:00

Sungkeman is unique tradition in Yogyakarta and Center Java, Indonesia. Sungkeman is from word sungkem, activity to ask blessing by kneel down and kiss someone’s hand. It’s part of Java culture. It usually committed in marriage ritual and in Idul Fitri (Ied, Ied-ul Fitr). It’s a touching moment.

As a ritual in marriage program, the bride and bride-room commit sungkeman to their parent. They purpose to ask praying and blessing of the parent. Whereas sungkeman in Idul Fitri is done not only to parent, but to the other that older. The other that older, like older brother/sister, grandfather/grandmother, uncle/aunt, even neighbor that close.

Mudik, Gathering Time with Family

2011-08-26T08:56:00.000+07:00

Every country, every region, always has culture or tradition itself. Indonesia does too. Connected to holiday Indonesia has unique tradition that no place (I think) has it. The tradition called mudik.

Mudik is activity of migrant workers to back home to their birthplace. It usually is done in holiday, like Idul Fitri (Ied, Ied-ul fitr, Lebaran) or Christmas. The biggest mudik always happens in Idul Fitri every year. Exactly a week before until a week after Idul Fitri. It can be understood because Indonesia is a country with the biggest Muslim population in the world.

After work for months in a big city or other district or other island or abroad, after fasting a month, an Indonesian will commit mudik to gather with parent, big family and old friends. It’s a special moment, special day.

Mudik, Gathering Time with Family | Trifter

Benefits of Fasting | Healthmad

2011-08-24T06:05:00.000+07:00

Now is Ramadhan month. Fasting month for muslim. For a month, some people in the world, muslim, perform fasting as worship. Yes, fasting. Not drink. Not eat. Not sex. Not angry. Control the emotions. From sun rises until sun sets.

Some people maybe ask, why must fast? No eat, no drink, for a day, is illogical. Useless. Hmm…, I don’t think so…

Actually, since centuries ago, some people had done fasting. Except as worship, fasting is very useful for human. Even , Plato said that fasting is useful for treating sickness, both physical and mental.

The experts from some countries made researchs about usage of fasting. Alvenia M. Fulton, Director of Institute for Healthy Foods in USA, said: Fasting is the ladies best beautifier. It brings grace charm and poice. It normalizes female fuctions and reshapes the body contour.… Wow…, fasting is good for woman.

The other expert from USA, Allan Cott M.D., composed results of research of the experts from some countries. He arrange those research results in a book “Why Fast”. In the book, he mentioned the benefits of fasting.

The benefit/usage of fasting are:

to feel better physically and mentally
to look and feel younger
to clean out the body
to lower blood pressure and cholesterol levels
to get more out of sex
to let the body health itself
to relieve tension
to sharp the senses
to gain control of oneself
to slow the aging process.

So, fasting is very useful for healthy. Of course, mean of fasting here is rational fasting. Then followed by eat the healthy food.

Benefits of Fasting | Healthmad

India Porridge, Iftar in Koja Community | Socyberty

2011-08-24T05:56:00.000+07:00

India Porridge, Iftar in Koja Community | Socyberty

Cause of Inheritance

2011-08-13T09:59:00.001+07:00

There are some reasons why inheritance happen. In Islamic Law, inheritance happen one of things below:

Nasab (blood relation), like: Child, grandchild, father, mother, brother/sister from same mother/father
Marriage connection: husband and wife, include if never has mixed or has divorced but still in period of iddah talak raj’i
Walak connection is connection between ex-slave and someone free him/her. If the ex-slave has no heir so someone free him/her has right to inherit. But now, walak/wala connection cannot be used because slavery is erased.
Jihatul Islam (Islam destination): baitul mal (treasury of state). If deceased leave no heir, so inheritance will fall to baitul mal. Baitul mal is treasury of state that accommodates public wealth to use to need of society. Baitul mal receive wealth from sources like tax, zakat, booty of war, lost wealth that the owner is unknown or inheritance with no heir. Ulama syafi’iyah entered baitul mal as one of reasons of inheritance.

Debt of Deceased

2011-06-18T14:28:00.002+07:00

When one dead, sometimes he/she leave wealth and debt. In this case, although the deceased has heir, but creditor’s right is more principal than heir’s right. Mean, inheritance can not be given to heir before the debt is paid. So the heir only can receive remains of inheritance after reduced paid debt.

Fiqih Islam divides deceased debt into:

debt to God, like: zakat, haji,nadzar
debt to other human:

· debt that no relation with inheritance: mahar debt, money debt without pawn

· debt that has relation with inheritance: pawn debt.

If one dead and leave debt to God, is the debt become fall?

According to Madzab Hanafi: If no testament (wasiat) to fulfil debt to Allah, so the debt is assumed fall by his/her dead. Reason: debts to Allah is worship that to execute it needed executive’s intention.
According to other madzab (Maliki, Syafi’I, Hambali, Dhahiri): debt to Allah is not become fall by one’s dead, because the debt is obligation that related to property that the executive does not need intention to do it.

About opinion that debt to Allah must be paid, so which must be paid first, debt to Allah or debt to other human? There are differences of opinion among ulamas.

Ulama Syafi’iyah and Dhahiriyah: debt to Allah must be paid first. Reason: hadist Nabi thought that Allah’s rights are more principal to fulfil.
Ulama Malikiyah: debt to human is more principal, because human needs to receive the payment.
Ulama Hambaliyah: debt related with inheritance are more principal than debt to Allah, and debt that has no relation with inheritance are assumed as same with debt to Allah.

Rights Connected to Inheritance

2011-04-23T07:38:00.005+07:00

If one dead, he/she usually leaves some properties (inheritance) to his/her family. The properties (inheritance) then become his/her family’s right as heir. And if the heir is consist of more than one person, so it must be shared.

Can the inheritance shared directly? No. Before it split, the heirs must consider rights that connected to inheritance. The right connected to inheritance is obligation of the heirs. May be deceased has had unpaid debt when he/she lived. Or may be the deceased leaved testament connected his/her property.

Before divide the inheritance, the heirs obligate to use the property for:

pay care of deceased’s corpse, from bathing until funeral

Corpse management since bathing until funeral can use wealth of inheritance, as long as not over, and it’s not contravene with Islamic value.

As a traditional-religious society, every aspect of life in Indonesia never can be separated from tradition (adat), including death. There are ceremonies concerning death.

Like in Yogyakarta. There is Tahlilan, is ceremony that some people pray together for the deceased.They read tahlil, surah Yasin and pray in order Allah forgive and bless the deceased. The family that leaved, usually perform tahlilan in 3 days or 7 days in a row. Then perform it in 40^th, 100^th, and 1000^th days after day of death. After the the praying end, the family give some drink and food to the people. And when the people go home they bring berkat. Berkat is a gift, usually meal, as an appreciate from the deceased’s family to the people that pray for deceased.

Of course the ceremony, including drink and food, that presented before and after funeral, are not tought in Islam. So if the ceremonies done as tradition, the cost can not be burdened to inheritance. Inheritance only can be taken for caring corpse.

pay deceased’s debt

After taken for carrying corpse, inheritance can be taken for pay deceased’s debt. If the amount of the debt is bigger, so the the paying is sufficed by inheritance. If the creditor more than 1, so each creditor only paid according to comparison of amount of debts. Example, Mr. X dead and leave debts to Mr. A Rp. 2000, to Mr. B Rp 5000, to Mr. C Rp. 3000. So total debts is Rp. 10,000. Remains of inheritance after taken for caring corpse is Rp 9000. It’s not enough to pay all creditors. So all creditors are paid by comparison 2:5:3. So Mr A get Rp. 1800, Mr. B get Rp. 4500, and Mr. C get Rp. 2700.

The heir have no obligationto cover remainder of debts from their own wealth. But if the heir want to cover it, that is better. That’s assumed as kindlines of heir, not legal obligation…. But, the heir or the family should pay the debt, because if the deceased still has debt she/he will defended in akherat. She/he cannot enjoy result of her/his ibadat/amal (kindliness) before the debt is paid or the creditor sincere it.

Doing testament (wasiat)

Testament is last one’s desire relation with property that she/he leave. The last one’s desire must principal than heir’s right.

Wasiat is limited maximum 1/3 of inheritance (after taken for paid caring corpse and debts). Wasiat must be done without anyone’s permission.

How if amount of wasiat more than 1/3 of inheritance?

According to Jumhur Ulama (most ulama): wasiat more than 1/3of inheritance is legal, but implementation of surplus of 1/3 depends on permission of all heirs. If all heirs permit it, surplus 1/3 can be done. But if a part of the heirs permit it and the others not permit, so wasiat only done that agreed.
According to Ulama Dhahiriyah: wasiat more than 1/3 is null, although all heirs permit it. Reason: Hadist Nabi stipulated that wasiat by 1/3 of property is much.

What about wasiat for heir?

According to Jumhur Ulama: wasiat for heir is legal but the implementation depends on the other heir. It’s like wasiat more than 1/3.
According to Ulama Dhahiriah: Wasiat for heir is null, because Hadist Nabi teach that no testament for heir.
According Ulama Syi’ah Imamiah: wasiat for heir is legal and can be implementated without permission.

Please Help Japan....

2011-04-04T15:34:00.004+07:00

Yesterday, I opened my email after I ignored it for 3 months. I found a message from a friend. She is a Japanese. Her name is Yoshimi.

In her email. Yoshimi told about effects of earthquake and tsunami that hit Japan. She secure because she is live in Bangkok, Thailand. So do her parent that live in south-west of Japan. But she is worrying about her friends that still insecure.

As we know, because of earthquake and tsunami in Japan March ago, people of Japan get difficulties. The civilization 100 years old has destroyed. Thousands people died. Thousands lost. And the others facing effect of nuclear radiation now.

"I have never felt so insecure about Japan before in my life," she wrote.

People of Japan need help. So, we can help them via The Nippon Foundation. The donation will be very useful. Save 1 life, means save all lifes.

Hakam

2010-12-27T13:55:00.003+07:00

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

2010-11-29T09:21:00.002+07:00

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

2010-11-19T21:55:00.002+07:00

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

2010-11-12T05:46:00.003+07:00

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

2010-11-06T11:53:00.004+07:00

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:

husband’s action: talak, illa, dzihar
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

2010-11-05T08:08:00.004+07:00

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

2010-10-31T09:25:00.004+07:00

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

2010-10-26T17:04:00.002+07:00

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

2010-10-25T20:34:00.005+07:00

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)

2010-10-20T06:09:00.004+07:00

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.

Li'an Oath

2010-10-15T19:29:00.005+07:00

Li’an Oath is one of evidences in the religious court. It’s concerning divorce case, because of zina (adultery).

Before speak about the oath, it’s better to speak about breaking of marriage first.
A marriage can break because of dead and divorce. According to Islamic Law Compilation article 116, one of divorce reasons is: if husband/wife commit zina.

Zina is serious indictment. When a husband indict his wife of zina. He must be present 4 witnesses in court. The witnesses must male and muslim. If the husband can’t present them, he must take an oath that his wife commited zina. The oath is Li’an Oath.

Li’an Oath must do 5 times. The first 4 times is: 'I bear witness to Allah that I am true about my indictment that my wife commited zina.' Then at the 5rd oath, added: 'Allah’s curse of me if I was lie about my indictment.'

Whereas a wife indicted zina, if she is not guilty, she can deny by oath 5 times too. The first 4 times is: 'I bear witness to Allah that my husband’s indictment of me is lie.' Then the 5rd, added: 'Allah’s curse of me if my husband’s is true.'

From the content, Li’an Oath is extraordinary oath. It’s has horrible effect for the liar. Allah’s curse of the liar can happen everytime and everywhere. It maybe happen soon in the world, and maybe happen in the hereafter too. Noone knows.

It can understood because in Islam, zina is a big sin.

Legal Sources of Islamic Inheritance Law

2010-10-13T05:46:00.004+07:00

".... obey Allah and obey Rasul and obey ulil amri among you. Next if you have difference of opinion, return it to Allah (Quran) and Rasul (Sunnah)...." (Quran 4:59)

Why muslims must obey ulil amri? Because ulil amri follow the law that agreed by fuqahas.

So, according to Quran (4:59), legal sources of Islamic Inheritance law are:

Quran
Sunnah Rasul
Ijtihad.

Quran

There are sections about inheritance:

A. the principal sections:

Quran (4:11): contains stipulations about share of child/children, father, and mother
Quran (4;12): share of widower, widow, and brother/sister
Quran (4:176): about kalalah (no child and no father).

B. the assistant sections:

Quran (4:7): man and woman have right to inherit their parent's wealth and their families's wealth
Quran (4:1): blood relation result in right to inherit
Quran (4:8): about other families, the orphans and the poor
Quran (4:33): about people ever swore to loyal to the deceased
Quran (2:180): testament (wasiat)
Quran (2:240): teach husband to make testament to his wife about goods

Sunnah Rasul

Hadist from Bukhari and Muslim : residu of inheritance especially for heir closer to deceased
Bukhari and Muslim: about wala' (slave's inheritance that no family)
Ahmad and Abu Daud: if no heir/heiress
Al-Jama'ah except Muslim and Nasai: muslim can not inherit from non-muslim, and non-muslim can not inherit from muslim
Ahmad, Malik, and Ibnu Majah: a murderer can not inherit from someone that he killed
Bukhari: about case that heiress are 1 daughter, 1 grand-daughter (from son) and 1 sister, Prophet Muhammad shared 1/2 to daughter, 1/6 to grand-daughter, and residu to sister
Ahmad: that Prophet Muhammad gave 1/6 to 2 grandmothers.

Ijtihad

share of hermaphrodite
about residu after shared to all heirs
share of mother.

Marriage Prevention by Registerer Official of Nikah

2010-10-07T07:49:00.004+07:00

Sometimes there is a violence of marriage law but no one prevent the marriage. Can the marriage be performed? Registerer official of Nikah (Pegawai Pencatat Nikah) is forbidden to perform or help to perform a marriage if he know existance ot violence of rules, although no request of marriage prevention.

The rules that may be collided are:

Minimun limitation of age of bride and/or bride-groom
there is marriage obstacle between bride and bride-groom
connected to polygamy requirements
stipulation about the couple that divorced, then want to marry again after one side married with someone else and divorced
connected to manner of implementation of marriage that ruled by other law.

If Registerer Official of Nikah opines that on a marriage there is something forbidden by Marriage Law Number 1 year 1974, he will refuse to perform the marriage. Then the Registerer Official of Nikah gives written explanation about rejection and the reason.

Concerning the rejection, the sides can make a complain. They have right to request a decision to Court by delivering explanation letter of rejection of marriage. Court is Religious Court in legal area where Registerer Official of Nikah exist.

Religious Court will investigate the case by short procedure and will give decision.

The kind of decision are:

strongger the rejection of Registerer Official of Nikah
command perform the marriage.

What happen with the Court’s decision if the obstacles are lost? The decision will powerless if obstacles that result in rejection is gone. And the couple that want to marry can repeat information about their purpose to marry.

Prevention of Marriage

2010-10-01T08:16:00.005+07:00

Prevention of marriage is done to avoid a marriage that forbidden by Islamic Law and State Law. It can be done if bride and/or bride-groom si not fulfil requirement of marriage according to law.

Difference of social status, ethnic, wealth can not be reasons to prevent a marriage. Only difference of religion (ikhtilaafu al dien) can be reason of prevention of marriage.

Prevention can not be done by everyone. Only certain person can do it. They are:

All family in upward and downward straight line (including father)
brother and sister
wali nikah (marriage guardian)
wali (guardian)
husband /wife of bride/bride-groom
pointed employee to watch marriage.

How to prevent a marriage?

Prevention of marriage must be forwarded to Religious Court (Pengadilan Agama) in legal area where the marriage will be performed. Someone that prevent the marriage, must tell Registerer Official of Nikah (pegawai Pencatat Nikah) about the prevention. Then the Registerer Official of Nikah tell bride and bride groom about request of marriage prevention.

Revocation of Marriage Prevention

The marriage can not be performed as long as the prevention has not revoked. Marriage prevention can be revoked by revoke request of prevention in Religious Court. It also can be revoked by decision of Religious Court.

Can A Father Prevent Marriage of His Daughter?

2010-09-25T05:13:00.003+07:00

Q: Some years ago I and my husband divorced. Then I raised our daughter by myself. Now our daughter is adult and she will marry. I think it’s not important to tell my ex-husband about plan of our daughter marriage, because he has not cared about our daughter. He has not given living cost to her daughter. Can my daughter marry by wali hakim? And can my ex-husband prevent the marriage?

A: In Islamic Law, a woman can not give herself in marriage. She always needs wali nikah (marriage guardian). Wali nikah consists of wali nasab and wali hakim (magistrate guardian). A woman can not marry by wali hakim as long as wali nasab is still exist and has no obstacle to be wali nikah. In the case above, the father as the principal wali is still exists, still alive. So the daughter can not marry by wali hakim.

According to Compilation of Islamic Law article 62 section 2, a blood father that never act his obligation as head of family is not drop his right as wali to prevent a marriage that will do by other wali. So it’s clear that a father can prevent marriage of his daughter.

It’s important to tell a father about plan of his daughter’s marriage. It’s his right to be wali nikah, although he never do his duties as a good father. And if he dislikes (adlal), the daughter just can marry by wali hakim after it’s decisioned by Religious Court. That’s the rule. It’s stipulation of State Law and Religious Law.

The Principles of Islamic Inheritance Law

2010-09-15T10:25:00.005+07:00

Islamic Inheritance Law (Faraidl) is one of branch of law that in force in Indonesia. Legal source of Faraidl are Quran, Hadist, and Ijtihad.

Quran regulate faraidl so clearly, why? Because inheritance can cause quarrel easily. Fair for someone maybe not fair for the other. So that about inheritance is returned to Allah, because true fairness just from Allah.

The principles of Islamic Inheritance Law are:

Islamic Inheritance Law takes median strip between capitalism and communism, so that it regulates inheritance, also gives freedom for someone to give his inheritance by testament
The deceased can’t pevent the Heir/Heiress to get his/her right of inheritance. And the Heir/Heiress can get his/her right without statement ‘accept’ or judge decision
Inheritance is only limitated in family environment. Heir/heiress and the deceased must have family conection, because of marriage or blood conection. The closer family is more principal than the farther
Islamic Inheritance Law tend to divide inheritance to recipiens as most as possible, from the closest family until the farthest family. From child, grandchild, mother, father, sister, brother, grandfather, grandmother, nephew, niece, until great-grandmother, there’s regulation for them
There is differences part of man and woman. Part of man is two times part of woman. Why is the man get bigger than the woman? Because a man is a leader of a family who shoulder all burdens of his family
No differences of heir/heiress among adult, underage or baby just born
There are certain part of heritance, i.e. : 2/3, ½, 1/3, ¼, 1/6 and 1/8 (Look Quran, Surah An-Nisa section 11). The regulation is ta’abbudi, something must do because regulated by Quran.

Development of Taklik Talak in Indonesia

2010-09-04T20:34:00.005+07:00

Taklik Talak or Ta’liq al-talaq (Conditional Divorce) has been in Indonesia, particularly in Java island, since centuries ago. Since era of Islamic Mataram kingdom under Sultan Agung (1613-1646). That’s research of Hisako Nakamura. She is a Professor of Anthropology in the Faculty of International Studies at Bunkyo University.

Nakamura divided development of taklik talak into 3 period:

era of Mataram kingdom
era of Dutch colonial
era after independence of Indonesia in 1945.

Era of Mataram kingdom

Sultan Agung is the first king in Java that received the tittle of Sultan. During his rule, Islam penetrated deeper among the general population of Java.

In the era of Islamic Mataram kingdom, the pronouncement of taklik talak was formalizad simply, like this:

(The bridegroom is read out a promise by a religious official): “Listen Bridegroom. Do you accept the royal promise (janji dalem) of taklik? In the even you leave your wife so-and-so for seven months by land or for two years by sea, axcept if you are on military duty, and he even your wife does not want to be quietand bring the case to the religious court (rapak), then talak one will fall after the court investigation proves the case to be true.”

(The bridegroom answers): “Yes, I do.”

Era of Dutch Colonial

The Dutch Colonial Government promoted the native custom and instruction including mention of ta’liq al-talaq was issued by Herman Willem Daendels, Governor General of the Netherland East Indies (1807) to native regent (bupati) of Java
It was followed by decrees of the duties of the religious judge (penghulu) in Stb. (Staatsblad) 1835 No. 58, and on the formation of the Religious Court (Raad Agama) in Stb. 1882 No. 152
Ta’liq al-talaq appeared as part of Ordonansi Pencatatan Perkawinan (Ordinance on Marriage Registration) in Stb. 1895 No. 198, in Stb 1929 No. 348, Stb. 1931 No. 348, and Stb. 1933 No. 98 for the Solo and Yogyakarta principallities.

Era After Independence of Indonesia

About marriage of muslim including taklik talak is regulated in Compilation of Islamic Law (Presidential Instruction No. 1/1991). Standart taklik talak is here.

Adoption and Gerakan Orang Tua Asuh

2010-08-26T09:19:00.005+07:00

".... Nor has Allah made your adopted sons as your own real sons. That's only your words. And Allah said the truth and Allah guides you to the right way. Call them by the names of their fathers; that's more just in the sight of Allah, and if you don't know their fathers, call them as your religious brothers and your ward...." (Quran 33: 4-5)

That's strict stipulation about adoption in Quran Surah Al Ahzab: 4-5. Islam prohibit adoption that adopted child bring the name of the foster father and release the name of blood father. Islam permit limitated adoption, that without giving legal status to adopted child as own child.

The type of adoption in Islam is look like Gerakan Orang Tua Asuh (Foster Parent Action) that booming in Indonesia in 80-es. It's a government program to give the rich opportunity to help the poor and unlucky children. The rich families can help the children by giving school fees without separate the children from their parents. Sometimes the child can live with the foster parent, but she/he can back to her/his parent everytime they want. And for living in the foster parent's house, the child get feed, love, affection, clothes, education, etc, like foster parent's own child. Then after the child finish his/her education, the foster parent will back the child to the true parent.

And until now, Gerakan Orang Tua Asuh is still exist but individually. Some people think that unlucky children are amanah from Allah. By help them, mean make a kindness. Give useful science that its reward is not break although the foster parent died.

Adoption in Islamic Law

2010-08-19T13:50:00.003+07:00

Quran (33:4-5) is legal source that Islam prohibit adoption, true adoption. Mean adoption that forbidden in Islam is adoption that give adopted/foster child status as blood child, so adopted child can inherit from foster parent; adoption that break nasab relation between adopted child and his/her blood parent.

Alhough Islam prohibit true adoption, Islam never prohibit someone to care orphans. Not at all!... Islam, even obligate the followers to love, care give affection, feed, raise, and give good education to orphans, neglected child and other unlucky child. Even Allah's arsy will be shaken if there is an orphan cry because of hungry.

Islam only incorect if nasab (blood) relation between a child and his/her blood parent (true parent) is broken because of adoption. Islam also prohibit giving status as blood child to adopted child. Prohibit giving the adopted child same right with blood child, especially inheritance.

Why? Because of justice reason. It's connected to private relation, including inheritance.

It's not fair for blood parent, especially blood mother, if must lose nasab relation with her own child after she pregnant for 9 months 10 days. After she bet on her life to bear the child.... It's also not fair to blood child and the blood family if an adopted child has right to inherit adopted parent's property like a blood child.

The prohibition to give status as blood child, I think, because to prevent something bad that may be happen in the future. Prevent dispute about inheritance that may be happen between adopted child and blood child or blood family of foster parent. Because inheritance is about sensitive matter.

Although an adopted child can not inherit from his/her adopted parent, she/he can accept his/her adopted parent's property by wasiah (testament) or hibah (gift).

Ramadhan in Indonesia

2010-08-12T09:50:00.003+07:00

Ramadhan is one of month of Islamic Calender. It's called Bulan Suci Ramadhan (holy month Ramadhan). As long as Ramadhan, the Islamic followers are obligated to fasting. No eat, no drink, no sex, no angry, and other passions that forbidden, from sunrise to sunset.

Ramadhan is meaningfull month for the Islamic followers, including in Indonesia. Not only in angle of worship (relation between human and God), but also in angle of interpersonal relation (relation between human and other humans).

Its looked in custom in Indonesian society that traditional-religious, even before enter Ramadhan month. In Sya'ban, month before Ramadhan, people always do certain ritual/ceremony. In Central Java (particularly in Jogjakarta and Solo), there is still program 'Nyadran' or 'Ruwahan'. In the program, people cook ketan, kolak and apem, traditional foods. Then the foods are distributed to others (usually neighbour and close family), as 'sedekahan' or shadaqah (gift). And then they will commit ziarah kubur, go to cemetery of their parent or theie families to pray to God for the deceaseds.

Because Ramadhan is holy month so to enter it a muslim must be clean, body and soul. In the day of end of Sya'ban month, to clean the body, people commit 'padusan'. Padusan is take a wash to be clean. Some people do it in swimming-pool, river, even in beach. They usually do padusan together with family or friens. It's form of togetherness. But for one that prefer practicality and efficency, she/he will do padusan only at home, in the bathroom. Of course, alone.

And to clean the soul, they will apologize each other before enter Ramadahan. Apologetical statement is done by face to face, also via phone, sms, email anf facebook.

In the Ramadhan, the atmosphere look like different from other months. There are spirit, togetherness and holy.

In family area, Ramadhan is time to unite all family members. Sometimes because of daily activity all family members seldom commit breakfast or dinner together. But in Ramadhan they will eat together., in sahur (eat before fasting) and buka (eat to end the fasting). They also will go to mosque together.

Not only from mosque, from almost every house will be heard Quran reading. Everyone compete to read Quran, even to khatam it as most as posible. Everyone compete to make kindness. They compete to shadaqah, including to give foods for the fasting people in the mosque. They do that because of Allah. That's why Ramadhan is called worship month.

While, the youngs every night (after midnight) will walk around the village by hit kenthongan (traditional alarm), to make people wake up to sahur. They will shou, "Sahur..Sahuur... Sahuuur!!"

Marhaban Ya Ramadhan....

Taklik Talak (Conditional Divorce)

2010-08-06T06:30:00.007+07:00

Taklik Talak or ta’liq al-talaq (conditional divorce) is a contract said by bride-groom after akad nikah, and included in akta nikah (document of marriage). It contents promise of talak (divorce) based on certain situation/condition that may be happent in the future. On the other words, divorce comes into effect only at a time when an already specified condition has been fulfilled. Example, husband does not give livelihood 3 months in a row.

If certain situation/condition on Taklik Talak happen, is talak (divorce) fall outhomatically?

If specified condition is happen, it is not mean divorce happen directly. In order that talak fall seriously, wife must bring it to Religious Court.

Actually Taklik Talak is not a contract obligated to do in every marriage. But once Taklik Talak said, it can not be revoked in one way or another. (I think it is form of legal protection for woman).

Taklik Talak may not fill something that contravene with Islamic Law. Content of Taklik Talak is depend on bride-groom, but usually it has been standard contract. Like this:

“After akad nikah, I am Doni, say taklik talak of my wife Tina, below: One day if: 1. I leave my wife 6 months in a row, 2. Or I don’t commit my obligatory support (nafkah), body and soul, 3. Or I maltreat my wife physically, 4. Or neglect my wife 6 months in a row;

Then my wife doen’t like my conduct, and sue to Religious Court, and my wife pay RP. 5000 as iwadh, and her indictment is corrected and accepted by Religious Court, so my first talak falls upon my wife. Then to Court, I authority to accept the iwadh and to contribute it for charitable purpuses as sidkah.”

Of course conditions mentioned above are standart condition, and the wife may also add further conditions.

Adoption in Adat Law (2)

2010-07-28T07:08:00.012+07:00

In the last posting, I said that Indonesian has been familiar with adoption since centuries ago. There are some reasons why a couple or family taking one else’s child.

In Adat community, purposes of adoption are:

to continue family lineage
as a friend
to fish for the foster parent can have the blood child.

Some people believe that by adopt one else’s child they will get their own blood-child. How can? As a religious-traditional community, they believe in reward and sin. If someone make a kindness he/she will get reward from God. The form of reward can be the born of child. On the contrary, if someone make a mistake (criminal), she/he will get a sin. The sin can be difficulty to pregnant.

As a religious-traditional community, adoption in Indonesia results in probabilities:

Private relationship between foster child and his/her blood parent and blood family is broken. Here, foster child is given status as blood child
Foster child still has private relationship with his/her blood parent.

In Adat Law, adoption proceed doesn’t need written proof. It’s enough by certain actions, the child has been assumed as adopted child. These certain actions are:

care for the child and give education until adult
circumcite the child (if male)
to give the adopted child (after adult) in marriage.

Adoption in Adat Law (1)

2010-07-18T23:14:00.006+07:00

Adoption is an action to take somebody else’s child into one’s family, making him/her legally one’s child. Adoption term is not strange in a community. Since thousands years ago, community of Indonesia has known adoption. It’s done by a couple or family that has no child.

Indonesia is a country that consist of thousands islands with thousands ethnics. Every ethnic has its own law. That’s Adat Law. So Adat Law or Adat in a region may be different from the others. For example, Balinese Adat is different from Javanese Adat, including about adoption.

In Bali, adoption process must be done clearly (terang). It’ s done by religious ceremony, by announcement, and witnessed by public figure and religious figure, in order that status of child is clear. After ceremony, the adopted child become full member of foster family. So his/her private relationship with his/her blood parent and blood family is broken.

In South Sulawesi, foster child still has private relationship with her/his original parent (blood parent) and original family. So she/he can inherit from her/his blood parent. She/he has no right to inherit from foster parent. But foster child can get property/goods from foster parent by hibah (gift) or wasiah (testament). That’s Adat Law in South Sulawesi about adoption that influenced by Islamic values.

Adoption stipulation in Java is different from Bali and South Sulawesi. According to Javanese Adat Law, foster child still can inherit from his/her blood parent and foster parent too. Alhtough can inherit from foster parent but there is limitation over there. The foster child only can inherit from foster parent limitated on harta pencarian, no harta pusaka (heritage). Harta pencarian is property that get husband and wife as long as marriage. Harta pusaka is property from husband’s family or wife’s family. Harta pusaka is just for blood lineage.

So in Java, foster child called ngangsu 2 sumur, take water from 2 wells. Mean, foster child get 2 advantages, can inherit from his/her blood parent and foster parent too.

B. Ter Haar said that right to heir of foster child in Java that limitated only on harta pencarian, because in Java adoption is not family’s business, and implementation of adoption is not terang (clear). It’s done without ceremony, without witnessed by public figure and religious figure.

Human Trafficking with Guise of Adoption

2010-07-10T22:32:00.003+07:00

In Bogor, an adopted parent from Kalimantan was forced to return the baby they adopted. The returning must be done because police suspects there is trafficking case behind the adoption process from Yayasan PH. While Rohani, the blood mother’s baby, said that she was compelled to release her twin babies for Yayasan PH because she had no money to bear.

In Gunung Kidul, Sarimin and Suparti also were compelled one of their twin babies to bought by somebody else, because they could not cost hospital for bear’s fee.

Cases like Rohani or Sarimin-Suparti often happen in this country. Poor life sometimes results in someone make wrong decision, include submit her child for the other. Unfortunately, unresponsible people will always be there to take advantage from the poor. They also take advantage from the rich that has no child. They take the child from the poor by giving much money or something as compensation, then submit the child for be adopted by the rich by taking compensation.

Of course it’s a crime. It’s a human trafficking with guise of adoption…. I think this case will not happen or at least can be reduced, if there is care (much more care) from government, society, and related parties.

What’s your opinion?

Can Marriage Contract be Revoked?

2010-07-01T16:30:00.004+07:00

Q: A couple made a marriage contract. After some years, they wanna revoke the contract. Can marriage contract be revoked?

A: We must know the material of marriage contract first. If it’s about taklik talak, according to Compilation of Islamic Law in Indonesia, marriage contract can not be revoked. Whereas if the material of contract about good/property, so it can be revoked.

About revocation of contract of marriage, actually Compilation of Islamic Law in Indonesia regulates only about goods/property. It is regulated in article 50 section 2-5.

Contract of Marriage about goods can be revoked based on agreement of husband and wife. The parties obligate to register the revocation in office of Registerer Official of Nikah. And since registration, the revocation locks in husband and wife, but it does not lock in 3rd party immediately. Revocation just locks in 3rd party since date of registration is announced by husband and wife on a newspaper.

How if announcement not done by the couple is? If in 6 months announcement is not done by husband and wife, so registration of revocation is drop automatically and unlock in 3rd party.

Important. Revocation of contract may not cause disadvantage on contract with 3rd party before. So about debt of 3rd party, it must be responsiblilty of the spouses.

Why Islamic Law is Still Up to Date?

2010-06-21T11:27:00.004+07:00

A friend feel astonish knowing Islamic Law is still in force in many country until know. The age of Islamic Law is over than a thousand years old. He think it’s too old and out of date. Does legislature never work so the ancient law is still in forced? he asked.

Hmmm….

Quran and Hadist as legal source of Islamic Law, regulate many aspect of law, such: Marriage Law, Inheritance Law, Contract Law, Criminal Law, Private Law, Discipline Principle, Consultation Principle, Military Law, even International Law. Of cource, those matters are regulated in outline. Why? That’s special of Islamic Law.

Islamic Law is created by Allah, God the creator of world and its content including human. God’s knowledge include human in past time, human at present, and human in the future time. Yes, only God knows about human’s needs, time to time, everywhere. God knows human always needs rules, so God gave Quran. Needs of human in a region/country sometimes different from other region/country, that’s the reason Quran regulates in outline. In order that Islamic Law experts commit ijtihad freely to determine the rule that suitable with situation and condition of a community or region, as long as not contravene with Quran and Hadist. Ijtihad also done if there is something new that not ruled in Quran and Hadist. So is if something (rule) that out of date. Once, as long as not break Quran and Hadist. That’s why Islamic Law is elastic, always according to development of human civilization. Always up to date!

Perhaps the Imran Ahsan Khan Nyazee’s illustration is easier to be understood. Islamic Law, that live and develop in this world, is described as a tree that deeply root, has a big stem, has a lot of branchs and a lot of twigs, has a lot of leaves and a lot of fruits. The root is Quran and Hadist. The stem is developed by fugahas’ formulation all-time. The leaves and fruits are developed by state by modern legal products and jurisprudences. The leaves can be ordered, the small twigs and parasites destroying the tree can be cut. But root and stem must not discharged, because discharging them is same with discharging root and stem of Islamic Law as God’s law.

So, legislature is still work. But legislature's duties are concerned with rules that relevant to a country/region, as long as not contravene with Quran and Hadist. Legislature's law products are the leaves that can be ordered, in order that relevant to development of human civilization.

That’s I know. I’m still learning, and always will learn because God’s science is very, very width. By the way, I just found legal source of asylum (political asylum) in Quran (4:90). Wow….

Adultery is not Adultery?...

2010-06-10T21:36:00.005+07:00

This week public of Indonesia is shocked by blue videos on internet. It’s about sexual activity that probably done by 2 public figures, Mr. AP and Ms. LM. And now, public is reshocked by 2nd video on internet, that done by (probably) Mr. AP and Mrs. CT. I use word ‘probably’ because those haven’t be proved, although an ICT expert said that it’s 90% true.

If those video true, can Mr. AP, Ms. LM, and Mrs CT be indicted?

According to Criminal Law Code (Kitab Undang-undang Hukum Pidana/KUHP) article 284, adulterers can be prisoned maximum for 9 months. But, still according to this article, an action can be called adultery (perzinahan) if done by people that one of them or they all binded in wedlock. An unmarried man and a married woman, or an unmarried woman and a married man, or a married man and a married woman that they are not husband and wife. And indictment only can be done if there is complaint (pengaduan) from one that gets disadvantage because of the adultery.

On the video of Mr. AP and Ms. LM (if true they are), according to Criminal Law Code, their behavior is not adultery, because both Mr. AP and Ms. LM are not in wedlock with anyone. They are unmarried people. So they cannot be indicted with the article 284 (adulterous article).

It’s different from video of Mr. AP and Mrs. CT (if true they are). Because Mrs. CT is someone else’s wife (married woman), so can be said that she and Mr. AP commited adultery. They can be prisoned if Mrs. CT’s husband indict them. But…, on an interview, he looked not believe that his wife on the video. So, probably will not be indictment of adultery.

That’s Indonesian Criminal Law that product of Dutch Colonial. They are lucky (once, if true they are), because in Indonesia (except in province of Nangroe Aceh Darussalam) Islamic Criminal Law is not in forced. So they are avoided from 100 lashings or stoning to dead. Because, according to Islamic law, sex without marry or free-sex is adultery (zina). And Adat Law is too. And public is too….

The Importance to Come when Called by Court in Divorce Case

2010-05-29T19:23:00.006+07:00

Several times ago a friend came. She told me her marriage problem. Her husband would divorce her. And she got letter of calling from Religious Court, but her husband prohibited her to attend the trial.

Well…. Actually it is hard to understand that a husband prohibited his wife to attend the trial connected with their divorce case. It is hard to believe that he had good intention while he was commiting divorce action.

In a divorce case, Religious Court call husband and wife to ask explanation about the reasons of divorce. If a wife as respondent does not come when court called, so explanation only got from husband as claimant. How if claimant’s explanation is untruth? Who knows…. It will be unfair situation.

If a wife as respondent or her lawyer doesn’t come in court, she possible can not struggle to get her rights if divorce happen. In Islamic Law, a husband that has divorced his wife has obligation to give mut’ah and livelihood to his ex-wife. Mut’ah is a gift from ex-husband to his ex-wife, in good form or money. But the obligation can be not decided based on certain condition.

Besides, there are some matters else that connecting with divorce. They are mahar debt (maybe), and hadhonah (children care) cost.

That’s why a wife as respondent should come to court when called. Because important to judge to hear explanation from both sides before decide to give permission of talak (divorce) or refuse it.

So, why not come when called by court?

Marriage Contract

2010-05-16T18:09:00.000+07:00

Marriage Contract is right of everybody. It is permitted by Indonesian Law as far as not break limits of law, religion, moral and general discipline. In Indonesian Law it is called Perjanjian Perkawinan. It is regulated in Private Law Code (Burgelijk Wetboek), Marriage Law Number 1/1974, and Compilation Of Islamic Law in Indonesia.
And for muslim is inforced Compilation of Islamic Law in Indonesia jo. Marriage Law Number 1/1974.

Marriage Contract can done at time or before or after akad nikah performed. It must be written and must be validated by Registerer Official of Nikah. The contract locks the parties and 3rd party since date of marriage performed in front of Registerer Official of Nikah.

The kind of contract can be made by bride and bride-groom are: taklik talak, and other contract that not contravene with Islamic Law, such about legal community of goods, prevention domestic violence, contract connected polygamy.

The matters regulated in contract of marriage concerning legal community of goods are: mixing of personal property, separation of communal property, and stipulation of authority each party to mortgage personal property and communal property.

Mixing of personal property
Contract of mixing of personal property can include all properties. It can include brought property each party in marriage, and also property that got by each side in marriage. In the contract, can also be stipulated that mixing of personal property limitated on personal property that brought when marriage performed. So personal property got as long as marriage can not be entered in the mixing, so on the contrary.

Separation of communal property
If the parties make contract of separation of communal property, so the contract may not reduce or lose husband’s obligation to fulfil household necessaries. The mean, although property of husband and wife separated, the husband remains a leader of family that must give living cost for his wife and his children, that obligates to all their necessaries.

Marriage Contract and Polygamy
In connection with polygamy, contract of marriage is important. It is connected with husband’s fairness for his wifes. When marry with 2nd wife, 3rd wife, or 4rd wife, the bride-groom can make a contract about domicile, time of turn, and cost of household for bride. Once again, it is important. Very important! Because fair for someone sometimes is not fair for another one.

As long as marriage, can contract of marriage be changed? As long as marriage, the contract can not be changed except the parties have agreed, and the effect of the change must not cause loss for 3rd party.

Islam and Adat: Kawelasan and Pitulungan

2010-04-18T21:44:00.000+07:00

Several times ago, Mr Dodo gave his daughter in marriage. In Java tradition there are marriage ceremonies. One of them is ngeterke manten (accompany married couple). That is, the parent and family of the bride and some neighbours accompany newly married couple go to house of the bride-groom’s parent after 5-7 days living in house of bride’s parent. (Usually after ijab-kabul and party performed by bride side, the newly married couple live in house of bride’s parent).

Ngeterke manten is term of bride family. For the bride-groom and his family, it named boyongan, namely invite the bride entering the bride-groom's family.

In this program usually the married couple wear the marriage costume and sometimes there are re-party, but the party is performed by bride-groom family.

In ngeterke manten program, the bride family bring some gift, usually foods. Each Javanese has his reckoning about the gift, so did mr Dodo. There were 11 foods for gift. Eleven in Java is sewelas. From word sewelas take word welas (touched). “Hoping God will touch the couple with love,” mr Dodo said.

And repeatedly mr Dodo said that the team must go at 7 o’clock. Why must at 7 o’clock? Seven in Java is pitu. Pitu is taken from word pitulungan (help).”Hoping God will always help new couple,” mr Dodo said again.

That's hope, that's pray of Mr Dodo. It can be understood, because for a muslim, every word is pray. So every mr. Dodo's words in the program is his prays for the couple. Prays were symbolized by tradition.

That’s Javanese. The Javanese always keeps the tradition. As muslim, they obey Islamic Law, and the Adat Law too.

Married by Accident

2010-04-02T06:06:00.000+07:00

Someone sometimes makes a mistake. Makes a sin. Big sin. As done by Ayik and Soni (the both are not true name). They are love couple. They were blind because of love so could not think over. And the next event….it is easy to guess. Yes, Ayik was pregnant and they had not married.

Although pregnancy of Ayik had brought shame on the big family, but Ayik’s parent and Soni’s parent agreed to give their children in marriage. However their parents would not shamier anymore if the love child born out of wedlock.

The marriage done Ayik and Soni is called married by accident (MBA), marriage done because the women pregnant out of wedlock.

Ayik and Soni are fortune live in Indonesia. If they live in Islamic country that subject to Islamic Law, they would be punished stoning or lashing 100 times because of zina (adultery). (Look Quran Surah AnNisa section 6-9). Unfortunately there is no stoning or lashing punishment in Indonesia.

Indonesia law even regulate about MBA. MBA in law term of Indonesia is called Kawin Hamil. According to article 53 Compilation of Islamic Law, a woman who pregnant without husband can married with the man whom made her pregnant. The marriage can do without waiting the baby born first. After the baby born, re-marriage is not necessary.

Of course, existance of the regulation is not meant to correct sex without married. Not at all! Adultery, however, is wrong, big wrong! Big sin! Adat Law or our society has its way to punish adulterers. Sometimes the punishment is heavier, painier, shamier than State’s punishment.

Moreover existance of kawin hamil regulation, I think, to protect the women and children. You know somethings bad often happen to women, from deceit to rape.

The Importance of Marriage Contract

2010-03-23T07:09:00.000+07:00

At least that is content of my brain when I came in a NGO in Yogyakarta. The NGO made a discussion program about abuse of women.

At the program, presented a research result about abuse of new diffable women in Bantul regency, province of Special District of Yogyakarta. Yes, there are abuses of new diffable women. Diffable women! They are victim of Jogja earthquake years ago. They get abuse, even from closest one, husband. Sometimes, the abuse, physically, economically, psychologically, sexually, even mixing abuses. Really a domestic violence!

A woman with wheel chair said, that her husband left her for another woman. He left her without living cost for her and their children. And she has no job after she has paralyzed because of earthquake. Sometimes her husband come home, but he never give her some money even he take her money while hit her. Ohh….

I think a woman can prevent herself from situation like this, with make a marriage contract about no abuse or no domestic violence. An agreement about the consequence if abuse happen. At least, a woman will get good bargaining in difficult situation.

Islamic Family Law in Indonesia

2010-03-10T23:05:00.000+07:00

Based on law science, private law is divided into: Personal Law (Personenrecht, Hukum Perorangan/Badan Pribadi), Family Law, Property Law, and Inheritance Law.

Family law is part of private law that rules about connection of blood relation and marriage relation, and its consequence. Blood relation (blood family connection) is family string among some people who have same ancestor. Whereas family connection because of marriage (marriage relation) is family string as consequence of marriage, between someone and blood family of husband/wife.

The most of Indonesian Family Law is regulated in Law number 1/1974 about Marriage (Marriage Law). Actually, stipulations of the Marriage Law adopt Islamic Law. It can be understood remember the most of Indonesians is muslim. And further, more specific family law for muslim (Islamic Family Law/Islamic Marriage Law) is regulated in Compilation of Islamic Law.

Fiction: My Friend Ayik (5)

2010-03-10T22:58:00.000+07:00

Ayik’s house

“What?!” Ayik’s father look at me with suspicion as if I have slandered his daughter. Ya Alloh…, my guess is true. Why me? Ayik and Sunu should face Pak Broto, Ayik’s father. Not me…. (Pak =mr, a call for man that older or respected)
I almost have no brave to look his eagle-eyes.
“I’m so sorry pak Broto. But it’s true. Ayik conseiving now. “
Pak Broto looks very angry while his wife is crying in chair. He call off Ayik whom hiding in her room.
“Ayiik!!” he shouted harder.
Ayik come with fear in her face.
“It’s true?!”
Ayik is so tremble so can say nothing. She just can nod her head. She have not brave see her father face.
“It’s true, Ayiik?!!” Pak Broto asked with harder voice as if he want to get certainty.
“Yes….Yes, Bapak. I’m pregnant…. I’m so sorry….” (Bapak=father)
Blug! Pak broto pushed his daughter so that Ayik fall in the floor.
“Bapak….” Ayik cry.
“What a shame!! I always talk about morality, but my daughter have immoral conduct. My daughter…., has brought disgrace on my face….” Pak Broto sit in chair and start to cry.
While crying Ayik come to her father. “I’m sorry, Bapak….I’m so sorry.”
“What’s my sin until I have daughter like you?”
Ayik crying is harder because of his father words. Her repentance is so clearly.
“Istighfar…. Istighfar, Pak.” Bu Broto tried to quiet her husband whereas her heart is broken.
When Bu Broto is talking to her husband, soon I bring Ayik to her room. I worry Pak Broto can not control himself so that hit his daughter.
Ayik is still crying. “What can I do, Lintang? What will happen to me and my baby?”
I really can not answer her questions. I just can embrace her, give my shoulder to cry on. Ah, Sunu should here. He promissed. It’s 9 PM but he has not come.
Suddenly something noicy heard from living room.
Buk!! Buk!
“No!...No!...Please….” Bu Broto screamed.
What’s up? I run to living room. So does Ayik. We look Sunu has been in the living room. He looks exhaust and his face looks bruised.
Pak Broto is releasing his angry. His hits to Sunu make Ayik and Bu Broto shout and cry. And Sunu let his body hit by Ayik’s father as if Sunu want to clean his sin. The more hit he accept, the more sin erased. But it’s wrong. Pak Broto is losing his control. Sunu can died.
“Stop!” I push Pak Broto when he wanted to hit Sunu anymore.
“Don’t intervene in!!” Pak Broto shouted me angrily.
“Please, Pak Broto….”
“It’s not your business!!” Pak Broto will attack Sunu anymore.
“Ok….Ok…Kill him!!” I shouted. “If he is dead, I guarantee you will be prisoned, even sentenced to dead. And Ayik, your daughter, will bear love child. Your grandchild will never has father that you killed. Your family will broken! Now kill him!!”
I don’t know why I get my brave. I only know that it’s the way make him stop. And I think I’m success. Pak Broto just quiet. He looks hesitate.
“Please, Pak Broto! Sunu come with good intention. He come to responsible. He come to Ayik and the baby. ”
Pak Broto look at Sunu and Sunu nod his head. “That’s right, Pak.”
“Ok….You all, leave me and Sunu! We must talk. It’s man’s business.”
Man’s business? Actually I rather disturbed with those words, as if no equality in gender. But it’s urgency so no protest. At least it’s good sign. Finally I follow Ayik and Bu Broto leaving living room.

Jakarta, 2 weeks later

Today is marriage of Ayik and Sunu. The marriage is performed as soon as posible, in order that Ayik’s baby born in the wedlock. In order that Ayik and the family avoided from Adat Law. I’m happy for her although her marriage is MBA, marriage by accident. A marriage which the bride is pregnant.
And unfortunately I can not come in the marriage. I’m here. In Jakarta. I have a job interview.
Song ‘Right Here Waiting’ is sounded in my handphone. Ayik calling.
“Assalamu’alaikum.”
“Wa alaikum salam. Lintang, I’m Sunu’s wife now,” Ayik shouted happily in phone.
“Wow, congratulation! I’m Happy for you.”
“Thanks. But promise, you will see me after you come from Jakarta?”
“Insya Alloh, I promise….Hey why you phone me? You should still in your marriage party, shouldn’t you?”
“Yes. The party hasn’t finished. I’m renewing my make-up. Here is my father.”
One minute later I hear Pak Broto’s voice. “”Hello, Lintang!”
“Hello Pak Broto! Congratulation on Ayik’s marriage.”
“Thank you Lintang. It’s because of you too.”
“Pardon me?”
“Don’t pretending! I knew all. Sunu told me about prison, about lawyer….”
Tut! Tut! Tut! It’s broken. My battery handphone is empty. But I think I know what Pak Broto mean, and I laugh in heart.
“Miss Lintang Cahya….” A receiptionist call my name.
It’s my turn to interview. Bismillah….

(The End)

Inheritance for Husband

2010-03-04T06:50:00.000+07:00

Q: My mother-in law dead 2 years ago. She had some properties. She left husband, 2 sons and a daughter. Can her husband inherit her properties? How much part of each sides?

A: In Islamic Inheritance Law, a husband/wife can inherit property of wife/husband as long as no obstacle to inherit.
If a woman dead and leaft husband, a daughter and 2 sons, so they are all can heir to her property as long as no obstacle to inherit. Because his wife, deceased, has children, a husband get ¼ of property, and remain of inheritance (3/4) is right of all the children with stipulation part of man is same with part of 2 women.
So, part of husband= ¼ from inheritance= 5/20inheritance.
A daughter= 3/20 inheritance.
2 sons= 12/20 inheritance, so each son get 6/20.

Is Contract of Marriage about Property Permitted?

2010-03-04T06:46:00.002+07:00

Q: I want to marry a woman whom richer than me. Her big family has suspiciousness that I will take her money. To wipe out the souspicion I plan to make a marriage contract about it. Is contract about separation of property between husband and wife permitted in Islamic Law?

A: To make a marriage contract about property between husband and wife, including separation of communal property, is right of the parties. Of course it is permitted by Indonesian Law including Islamic Law in Indonesia as far as not contravene with Positive Law of Indonesia.

Fiction: My Friend Ayik (4)

2010-03-04T06:44:00.000+07:00

Center Post Office of Yogyakarta

After sent an application letter I sit down in the waiting chair in Center Post Office. A Have an appointment with Sunu. I said I have an order. Sunu’s father has small store of uniform fashion. I lied but I have no idea.
Five minutes later Sunu come. He sit beside me. “What kind order is?” he asked me.
“Order of responsibility.”
I see his face, exact in his eyes. He looks confuse. “Well…, to the point, Sunu. It’s about Ayik and you. I know what happen. Please marry her!”
He look at me unpleasantly, but I don’t care.
“She asked you to talk to me,” he said. I don’t like his tone. Sarcasm.
“No. I’m here of my own free will. She doesn’t know.”
“You don’t have anything else to do so you see me only talk about it?”
I started to lose patience with him. His words make me want to hit his face. “I’m jobless, so are you. But I’m better than you. At least I have good moral. And you? I don’t think so.”
He say nothing.
“How?”
“It’s not your business.”
“It’s my business too. Ayik is my friend you know. And I will help her.”
“So?”
“So…, you must responsible. Please marry her! Or….”
“Or what?”
“Make yourself ready to go to prison!”
Sunu’s face looks change. He looks tense. “Can I prisoned because of this?” he asked me. And I can see his panic from his voice.
“If you commit adultery in Islamic country, you will be stoned to dead. Stoned to dead is not included in Indonesia law. But, I know the way to get you in the jail. I have consulted a lawyer. You know I have some friends that lawyer.”
His panic is clear more and more. I laugh in heart. My guess is true. Someone has economic problem and educational limitation is easy to intimidated. Sunu is too.
Finally he only can sit and bend his face. “Maybe you don’t trust me. Again and again I regret I did it. I regret I have made Ayik cry.”
“Just regret is useless.”
He hold his head. “What can I do? I’m not ready to marry. I’m jobless you know.”
“What about the store?”
“You know it’s my father’s store. Moreover it almost bankrupts….”
“Someone tell me that Alloh will help someone make kindness. We will never know how and when Alloh’s help come. But it’s sure. Now…, the choice in your hand. To be a responsible man or to be a….prisoner.”
He looks shocked hear word ‘prisoner’. “Ok!”
“Show it to Ayik’s parent at five PM today. Ok?”
“Ok…,Ok.”
I leave the post office. Leave Sunu with his thinking. Again, I lied. I lied about prison. I lied about lawyer. And I have no better idea. I have no bad intention.
(to be continued)

Fiction: My Friend Ayik (3)

2010-02-25T23:25:00.000+07:00

My room

It’s 02.00 AM, but I am still not sleepy. My insomnia is come again. Ayik’s problem has made my brain is full. Mereover she remembered me about Partini.
Partini was a married woman. She was caught red-handed committing adultery with a man else when her husband went to work in Hongkong. (Some people of Indonesia work to abroad) People of village was so angry because found Partini and her boy-friend in bed room in Partini house. Partini and her boy-friend assumed had put to shame village. The people worried will get unlucky. They worried God will curve because the adultery. For this reason, village must be clean. Consequently, the adulterers must drove off from village. Before drove off, the people brought them in nakedness arrounded the village. As long as arrounded, Partini and her boy-friend got scorns from people saw them like a carnival. Even Partini blooded because thrown shoes.It’s a social law. Adat Law. So scare….
In this condition, willy-nilly Ayik must tell her parent about the truth. Maybe they have an solution. Everything to prevent Adat punishment to Ayik.
The problem is, Ayik afraid and she asked me to tell to her parent. How can I tell them about Ayik’s pregnant? It’s about a sensitive matter. I know Ayik’s parent. I know her father. He is a strict man and very conservative. He always keeps the tradition. For him, honor is all in all. Born of love child is a shame. Now, what will happen if he knows his daughter pregnant without married? I imagine bad things.
Ayik has put me in hard situation. Actally I was rather angry with her. She and Sunu made a sin, but now I must take the consequence. I must face Ayik’s father as if I am pregnant. Huh…. But again and again her crying has made me gave up although I has not sure.
Fortunately Alloh help me. Ayik’s father went out when we came to Ayik’s house last afternoon. Notwithstanding, we will try nextday.
(to be continue....)

Draft of Religious Justice Law: Nikah Siri is Crime?

2010-02-25T23:21:00.001+07:00

At least that is debating recently. It is about criminal stipulation in Draft of Religious Justice Law (Rancangan Undang-undang Peradilan Agama), article 143. It states that everyone consciously perform marriage not in front of Register Official of Nikah will punished fine maximum Rp. 6000,000.- or imprisoned maximum 6 months.

It means someone commit nikah siri (unregistered marriage) can fined Rp. 6000,000.- or imprisoned 6 months.

Of course criminal stipulation in the Draft receive cordial welcome from activists and people who care about women and children. All this time, nikah siri is assumed as chink entering domestic violence. Besides, no legal protection to wife of nikah siri and her children.

On the other hand, some other people refuse the criminal stipulation. The punishment threat is unreasonable stipulation. Because nikah siri is valid according to Sharia. Nikah is ibadat. Religious order. It is really not fit to crime someone because of commiting religious order. Mereover, it is Indonesia, a country with the biggest population of muslim in the world. And nikah siri does not always have tragic end.

It is quite wrong. One side, Government/State only want to give legal protection to all citizens with registered marriage. But in other side, State can not prohibit people to do religious order. So what the solution?

Until now, it still analysed by Government, Ulama, and other sides. Hopefully, there will be good solution, before Draft of Religious Justice Law field Marriage enter National Legislation Program in Parliament in 2010.

Nikah Siri (Unregistered Marriage)

2010-02-25T23:09:00.001+07:00

Nikah Siri is marriage performed just according to Islamic Law (Sharia), without registered according to stipulation of Marriage Law in Indonesia. It is usually done secretly, so just known by certain people. Even it is enough if only presented by the couple, wali nikah (marriage guardian), witness, and some close families. Because of secret, so no celebration, no party.

There are some reasons why someone commit nikah siri. From financial reason until adultery reason. From polygamy reason until job reason.

For the poor, they choose to commit nikah siri because of no choice. Marriage frankly (according to State Law) means party, and party is so expensive. And they have no money. So save method to marry is nikah siri.

Sometimes the young commit nikah siri because they are still student and have not worked. Also because to prevent from adulterous behavior. As in Jogjakarta. As a student city, there are boys and girls, studying in some universities. They come from all region of Indonesia, even from other countries. And most of them are muslim. As wanderer, young, of course there are so many temptation. So to protect and prevent from adultery (zina), they commit nikah siri. And after graduate, some of them continue their marriage by registration, and the others choose to separate (divorce).

Sometimes nikah siri is also done because the bride-groom has had wife before. So for 2nd marriage, he commit nikah siri. Mereover if he is a civil servant who prohibited to commit polygamy. If broken the rule, he will get punishment.

Except those above, there are some jobs that require marital status single for employee for certain period.

Because of no registration, nikah siri has negative effects. It is about children resulted from nikah siri. Although nikah siri is valid according to Sharia, but no marriage according to State Law. Because no registration means no document of marriage. It is same with no proof of marriage. It is influenced to legal status of children. According to State Law, they are born out of wedlock. Illegitimate children. Consequently, they just have legal connection with their mother, not their father.

Other effect is if divorce happen. Wife can not sue to livelihood (mut’ah) if she divorced by her husband. She also can not inherite from her husband if her husband is dead, and her children can not too.

That’s why nikah siri is always be controversy. Because of no legal certainty. No legal protection from State to women and children.

Fiction: My Friend Ayik (2)

2010-02-03T07:18:00.000+07:00

I hope I mishear. I see her. She bend as if try to conceal her face. “Yes. Syaithon defeated me, Lintang. I did it. And I’m pregnant now….”
I can’t say anything. Reality that Ayik pregnant is shocked me. I know her. She has not married. It’s mean…, she committed adultery. Zina! It’s a big sin.
“Lin….” I hear Ayik called me but I don’t care. I’m still not understand. How can she do it? She teached me about good and sin. She teached me how to sholat, how to near Alloh. She teached me to read Quran and how to understand it.
“Lintang, please say something….”
I hear her voice, but I still can say nothing. I respect her. She introduced me to Islam. I have learnt a lot from her. Learn how to be a muslimah. The reality is really hurt me. She should be a good example for me.
“I can understand if you don’t want to talk to me anymore. I can understant if you disgust at seeing me. I’m dirty….” Ayik started to cry.
Her crying is touched me. Ayik is just a human. Every human can make a mistake,but the most important is how to correct it and never repeat it. I realize that she needs help.
I hold her hand. “It’s ok, Ayik. You always be my friend, what you are.”
“You’re not disgusted at seeing me?”
“Of course not.”
We embraced. Ayik is still crying while I can not against my teardrop.
Ten minutes later I asked her. “Who is he, Ayik?”
Ayik is silent.
“Please, Ayik! You might not pregnant without a man. You’re not Siti Maryam. Please, your problem must be solve as soon as posible! But it can’t solved if you hide him. Is he Sunu?”
Ayik nod her head.
“Sunu know about it?”
“He does’nt want my baby. He command me to have an abortion.” She erased her teardrop.
“What’s your plan? You will do it?”
“Of course not. I ever committed a big sin, and I don’t want to do a sin anymore. I’m not a murder, Lintang. I will not able to face Alloh’s curse.”
I can see Ayik’s repentance so clearly.
“But I’m scare….I don’t want like Partini.” Ayik cried mentioned Partini, a women Ayik’s neighbour that punished by Adat Law because of zina.

(to be continued)

Free Will to Marriage

2010-01-25T11:23:00.000+07:00

According to definition of marriage on Compilation of Islamic Law in Indonesia, marriage is a covenant, a contract. Existance of agreement of the couple results in it as a contract.

In Private Law, agreement is requirement of validity of contract. The mean of agreement is free will. There must be free will from bride and bride-groom.

What is free will?
Free will is happen if :
* There is no coercion (dwang) that breaking the law,or
* There is no error/misunderstanding about identity (error in persone/dwaling in persone); concerning in marriage is about identitiy of bride/bride-groom.

If agreement is got without free will, it can said there is defective will (cacat kehendak/wilsgebrek). And if there is no free will in performing marriage, thus the marriage is voidable. Husband or wife can ask annulment in court.

How if husband/wife not use their right to ask annulment and still living together as husband and wife is?
According to aricle 27 Marriage Law number 1 year 1974 (Undang-Undang No 1/1974 tentang Perkawinan/UUP), if coercion has stopped, misunderstanding is realized, but on 6 months after it still living together as husband and wife, and they do not use their right to ask annulment, consequently the right is drop.

Fiction: My Friend Ayik (1)

2010-01-25T11:11:00.002+07:00

My room

I just sent my e-mail when I heard a motor cycle stopped in front of my house.
“Good morning Bu Danu,” I heard Ayik said. (Bu = mrs, a call for a woman that older or respected)
“Morning, Ayik. Direct to Lintang’s room. She is over there,” my mother showed Ayik where I am.
“Thanks, Bu.”
Three minutes later Ayik has been in my room and to be resting on my bed. “You busy?” she asked me.
“ Not anymore. I finished.” I turn off my computer.
“Job application again?”
“Yeah.” I recline in Ayik side. Actually I rather shame to answer it. As if I reclear my jobless. It’s really disturb me. I am not as lucky as Ayik. She has got a job before graduated while I am still jobless for more than a year.
I remember this day is Monday suddenly. “Hey, why you here? You should work.”
“I’m absent today. I’m in a bad mood.”
“Bad mood? It’s not a reason to not work….It’s ironic. You are absent because of bad mood while many people are jobless,including me….”
“Please!” Ayik hold my hand. “I mean no harm. You know…I just…” She looks so sad.
“Hey, it’s ok. You didn’t hurt me.”
“Really?”
“Yeah.”
She looks happy. “Let’s we go! Anywhere. Searching a fresh air.”
“You’ll treat me?”
“Yes.”
“Ok! I’ll take a bath first.” I run to the bathroom.

Malioboro, center of city

Two hours later we have been in a mall, in Malioboro area. Malioboro is heart of Jogja city.
We just take a walk, around the mall. Yes, we usually do it if one of us sad or in the bad mood. Sometimes we buy something, sometimes buy nothing.
I and Ayik are friend since over ten years ago. Since we were in Junior High School. Therefore I always know if Ayik in problem, and so does Ayik. I know she is not only in a bad mood now. It’s more than a bad mood. I think she is in problem. But I don’t want to ask. I just wait until she ready to talk. She always only tell her problem if she has readied.
Finally she said,”I want to tell you about something.” Then we walk to a restaurant.
“About what?” I really want to know. But she looks confuse.
“Let…eat first!”
Then we eat gado-gado we ordered. After we finished, Ayik has not told anything. She always looks so confuse when she started to talk. I worry about her.
“What happen, Ayik?”
Again and again, she nervous. “I can’t….This place is so crowded.”
I see around. This restaurant almost empty. “Ayik, there are just 4 visitors including us. They can’t hear we talk.”
She shake her head. “No. I can’t.”
I just can take a deep breath. I’m sure it’s serious. Very serious. “Well….come quick! We haven’t sholat Dzuhur. It’s 1.15 pm now.”

In a mosque, in Gadjah Mada University area

Ayik is still praying when I finished my sholat. I go out to the terrace of the mosque. It’a almost 2 years since my last sholat in this place. Many years ago I often sholat in this mosque, a campus mosque.
“Mosque always be comfortable place for a broken heart,” Ayik said while sat beside me.
“For the happy heart too,” I added.
“It’s suitable place for a regret human to go.”
“For a human to thank to God too.”
Silent for a moment.
“I’m pregnant….”
“What??!!”

(to be continued)

Akad Nikah

2009-12-06T13:04:00.000+07:00

Akad nikah is series ijab said by wali nikah and kabul said by bride-groom or his representative, and seen by 2 witnesses. Ijab is a wali’s statement of place bride on bride-groom’s hand to marry. Kabul is bride-groom’s statement of acceptance of marriage (ijab answer).

Compilation of Islamic Law regulates akad nikah in article 27-29.
Ijab and kabul between wali and bride-groom must clear, in a row and no interval. Wali nikah can commit akad nikah by himself, and can representative to somebody too. The representative usually is Registerer Official of Nikah (Pegawai Pencatat Nikah) from Religious Affairs Office (Kantor Urusan Agama, KUA).

The bride-groom personally rightful say kabul. But in certain matters, kabul statement can done by a representative, with stipulation the bride-groom give letter of authorization that acceptance of akad nikah by representative is for bride-groom. And the bride or wali nikah is not agree about representative, so that akad nikah may not comitted.

If Mahar is Lost or Defect or Reduce....

2009-12-06T12:55:00.001+07:00

"My husband gave me a ring with pearl as mahar when we married. After delivered, I and my family saw it. Unfortunately, the pearl had dropped. Maybe it dropped under way to my house. But I didn't care about it because I love him.... Actually I want to know if the same case happen, can the bride complain?" Rani asked.

Well, sometimes what we plan can not do perfectly. So do delivery of mahar. Perhaps everything looks perfect but before delivered mahar losts. Or also happen, mahar defect or reduced before delivered, because it is too fragile for instance.

In Indonesia, about those all are regulated in Compilation of Islamic Law (Kompilasi Hukum Islam,KHI) article 36-38.
If mahar (marriage gold) is lost before handed in, it can changed by :
· The same another good in form and kind
· Another good with same value
· Money that same with cost of the lost mahar.

And if there is difference of opinion about kind and value of certained mahar, so that it solved in Religious Court.

What about mahar defect or reduce is?
If delivered mahar conceives defect or reduced but bride is willing accept it unconditionally, so giving mahar is assumed cash. On the contrary, if wife refuse to accept mahar because defect so husband must change it with undamaged mahar. And as long as the change has not given, mahar assumed still has not paid.

Marriage Witness

2009-12-05T14:49:00.000+07:00

Marriage witness (Nikah witness) in Islamic Marriage Law in Indonesia is regulated in Compilation of Islamic Law (Kompilasi Hukum Islam/KHI) article 24-26. Requiremets as nikah witness :
· 2 men
· Muslim
· Fair ( do no much sin)
· Akil baligh
· Memory undisturbed
· Not deaf or not dumb
· Must be present, and see akad nikah directly and unrepresented
· Must sign akta nikah at the time and at the place marriage performed.

Mahar is not Marriage Gift

2009-11-17T06:22:00.000+07:00

Mahar is not same with marriage gift although the both given to bride. Mahar is bride-groom’s obligation, and it connected to Islamic Law. Whereas marriage gift is from family or parent of bride, and it connected to Adat Law. In Adat law, it can entered as supply to the couple. Marriage gift is given at time marriage performed. It usually connected to inheritance

Mahar

2009-11-17T06:14:00.000+07:00

Mahar (mahr, marriage gold) is a gift given by the bride-groom to bride, formed good, money or service as long as uncontrovene Islamic Law. Mahar is regulated in Compilation of Islamic Law article 30-38.

Bride-groom obligate to pay mahar to bride. Amount, form and kind of mahar are based on agreement of both sides. Islam urge to certain mahar based on simple and easy principle.

Usually bride-groom gives a series of sholat tool as mahar, or money adapted with special date for instance date of marriage. Indonesians are not care about cost of mahar, cheap or expensive. They prefer to special or sentimental things , memorable mahar. Although very cheap as for content memorabilia, they will take it. On the contrary, although expensive as long as content memorabilia, they will take it too.

That’s why Yenny Wahid, daughter of ex-President of Indonesia Abdurrahman Wahid, got 10 cows as mahar from her husband. Cow as mahar is uncommon in Indonesia today. In a press conference after married, the couple said that beside unique, the reason of choice of mahar form was reanimate their ancestors tradition.

Mahar is given to bride directly, and it become her personal right sence then. It is handed in cash, but it can delayed all or partly as long as bride agree. Delayed mahar become bride-groom’s debt.

Is marriage valid if there negligence of mention kind and amount of mahar at akad nikah?
Obligation to give away mahar is not rukun nikah. So that negligence of mention kind and amount of mahar is not result in void of marriage. And existance mahar debt is not reduce validity of marriage.

How about bride and mahar if the marriage break is?
Breaking of marriage is caused by talak (divorce) and death. If a husband divorce his wife qobla al dukhul (without touch his wife), so that he obligate to pay ½ from mahar certained in akad nikah (look Quran 2:237). And if husband dead qobla al dukhul, so that all certained mahar become wife’s right.

Wali Nikah (Marriage Guardian)

2009-11-08T07:16:00.000+07:00

In Indonesian Islamic law, a woman can not give herself in marriage. She can marry if only there is someone given her in marriage. Someone is Wali Nikah (Marriage Guardian).

Requirements to be wali nikah must: muslim, akil and baligh, has right to be wali nikah, no obstacle to be wali nikah.

Wali nikah is divided into wali nasab and wali hakim.

Wali Nasab

Wali nasab is wali that has blood connection with the bride. Wali nasab is divided into 4 groups in sequence of position. A group is more formered than the others according to closeness of relative with the bride. Those groups are :
1. Group of relative in upward stright line, i.e. : blood father, grandfather (father of father), etc.
2. Group of relative : blood brother or brother (from one father) or descent of them
3. Group of relative uncle, i.e. : father’s blood-brother (uncle), father’s brother one-father, and their descent
4. Grandfather’s blood-brother, grandfather’s brother (from one father), and their descent.

If in one group there are some people have right to be wali, so that the most rightful to be wali nikah is someone closer relative to bride. Example, if there are blood father and grandfather, so that wali nikah is blood father.
If in one group there are some people in same relative degree so that the most rightful is blood relative than one-father relative. Blood brother is more rightful than brother one-father.
If in one group there are some people with same relative degree i.e. similar blood relative degree or similar one-father relative degree so that they all have equal right to be wali nikah. In this case, especially to older person that fulfilled requirements as wali nikah.
If wali nikah that rightful, his sequence is not fulfilled as wali nikah, or because he is dumb, deaf or udzur so that right moves to the other according to next degree.

What about a women have no wali nasab is?

There is wali hakim for her.

Wali Hakim (Magistrate Guardian)

Wali Hakim is wali nikah that pointed by Minister of Religious Affairs or by official pointed the Minister, that given right and authority to act as wali nikah. (Kompilasi Hukum Islam/compilation of Islamic Law)

When is wali hakim can act as wali nikah?
Wali hakim can act as wali nikah just if there is no wali nasab, or it is impossible to presence wali nasab, or wali nasab’s address is unknown, or wali nasab is gaib or adlal or dislike. In case wali nasab adlal or dislike, wali hakim just can act as wali nikah after there is decision from Religious Court. (Compilation of Islamic Law article 23).

In case that wali nasab adlal or reluctand, Wali Hakim just cant act as wali nikah after there is decision from Religious Court.

Married without Presence of Blood Father

2009-11-08T07:09:00.000+07:00

Someday and someplace in Jogja, most guests could not hold their teardrop when Fika (not her true name), in front of Petugas Kantor Urusan Agama (Employee of Religious Affair Office) whom act as Petugas Pencatat Nikah (Registerer Official of Nikah), directly stated that she could not really persence her blood father and she did not really know where is he live.

“What can I do anymore? I never can phone him. The number he gave is not registered, may be expired,” Fika said 2 weeks ago before married. “I sended him some letters but always return. I don’t know where is he.”

Fika just can wipe away her teardrop. She almost never feel what is father’s afection. Her father went to work since Fika still 5 months. Fika just met him twice after she adult. And she has no one else as wali nasab.

Fika story above just an example how importance of father. Blood father. A daughter always need her father. Especially when she will marry. Because a woman can not give herself in marriage. She needs wali nikah. And the main wali nikah (marriage guardian) is the blood father, even if he never do his duties as a father or a leader a family.

In case that blood-father’s whereabout is unknown, wali hakim as such can not act as wali nikah. The bride must really, really search out her father first. And if she really can not find her father and no wali nasab else, she must make a statement about it, then wali hakim can do as wali nikah. It is important. Because the blood father that never done his duties as leader of family, is not lost his right as wali to prevent a marriage that will do by wali nikah else(Compilation of Islamic Law article 62 section 2).

Polygamy (Having More than One Wife at the Same Time)

2009-10-29T06:35:00.000+07:00

Actually I have planned to write about polygamy later, not in the close time. But I change my mind because existence of polygamy club, Global Ikhwan, recently has got public attention including me.

Polygamy in Islam has existed since thousands years ago. Prophet Ibrahim and Prophet Muhammad are polygamist. In Indonesia, polygamy has existed at kingdoms period centuries ago, since Islam had not yet entered in Indonesia. Having more than one wife was common for kings, high officials and the riches. But present day, there are certain rules to have more than one wife.

Polygamy in Indonesia is regulated in Marriage Law number 1/1974 (Undang-Undang Perkawinan No. 1/1974) article 3-5, Compilation of Islamic Law (Kompilasi Hukum Islam) chapter IX, and Government Regulation number 9/1975 (Peraturan Pemerintah No. 9/1975) chapter VIII.

Main requirement to polygamy is fairness. A poligamist must fair to all his wives and children. The problem is how many people can fair like Rasululloh, or at least get near Rasululloh? Even Ali bin Abi Thalib, cousin and son-in-law of Rasululloh, just had one wife, Fatimah. Ali did not marry again because he did not sure can fair to his wives.

A polygamist is restricted having only until 4 wives. Yes, Alloh in Quran prohibits a man has more than 4 wives.

To commit polygamy, a husband must get Court permission, so that he must ask application to Religious Court. And to ask application, must fulfil requirements:

1. Existence agreement of wife/wives

Agreement can given in written or oral form. But although ther is written agreement, it must more resoluted with oral form on Religious Court.
What about the wife is crazy or the wife has gone and her adress is unknown? Someone crazy can not give agreement, because everything she said can not responsible. So that if wife/wives is/are impossible giving agreement and can not be a side on contract, or no news from wife/wives at least 2 years or because other reason that necessary getting Judge attention, the agreement is not necessary.

2. Existence sureness that husband can guarantee life necessaries of his wives and their children
It can proved by letterof explanation of income; or letter of explanation of income tax; or the other can accepted Court.

Religious Court just will give polygamy permission based on certain reasons. The reasons are:

Wife can not do her duty as wife
Wife in physical defect or taken ill that irrecoverable
Wife can not bear children.

What about polygamy without Religious court permission is?
Marriage with 2nd wife, or 3rd wife or 4rd wife without Religious Court permission, it is mean marriage performed siri (Adat/Islam). Registerer Official of Nikah is prohibited to do his duty concerning polygamy without Religious Court permission. So that the marriage not have power of law. It means 2nd, 3rd, 4th wife and their children have no law protection if something bad happen. It concerning in legal community of goods, inheritance and parental authority.

Controversial of Polygamy Club

2009-10-29T06:31:00.000+07:00

This week public of Indonesia is shocked by a polygamy club, Global Ikhwan, established in Bandung, West Java. The club original from Malaysia is controversial. It has 300 members from some countries, including 39 members from Indonesia. A famous ustadz and a restaurant businessman are mentioned as member of the club.

Many people especially women and activists disallow this club. Some people anxious about social perception as if polygamy is common and easy. As if there are persuasion to commit polygamy by the club. As if polygamy is campaigning. They worry because establishment of the club is performed openly.

The worry of women and activists is understood. They just want to protect women and children. Because many domestic violence cases are backgrounded by polygamy. The victims are not only women but children too. As happen to Budi (not true name, a true story) many years ago. Budi must worked when he was very young. He must worked because his father after having a new wife did not give living cost to Budi, his mother and his younger brothers. So that Budi worked to help his mother, to cost his school. Actually Budi ever asked his father responsibility, but he only got physical violence from his father.

Actually not all polygamy result in bad effect. There are also happy families with polygamy. Notwithstanding polygamy has become a sensitive matter for Indonesians. Mereover too many cases backgrounded by polygamy presented press. Divorce, domestic violence, even murder.

Concerning with restless caused the polygamy club, Moslem Canonist Council of Indonesia (Majelis Ulama Indomesia, MUI) has not decided about it. Meanwhile Minister of Woman Affairs, Linda Agum Gumelar said it better returned to Marriage Law.

Underage Marriage 2

2009-10-18T01:28:00.000+07:00

October 13, 2009, in Pengadilan Negeri (District Court) Syech Puji has freed. Syech Puji is accused in enderage case. He accused of breaking Children Protection Law because has married Ulfa. (Read Underage Marriage)

He has freed because Judge agreed his exeptio. Exeptio is defence not including the main case.
In Putusan Sela (chink decision), Judge of District Court valued accusation is not accurate, not clear, and indistinct (obscure libel), so that null and void.

Of course freedom of accused resulted in many protests. Some people worry about appearing the same case with the other young girl in the future. It is not about marriage law anymore, but also about protection of children. Yes, Ulfa is still a child. Still 13 years old.

This case is still processed. Public Prosecutor will appeal to Pengadilan Tinggi (Appellate Court).

Marriage Obstacle

2009-10-14T07:26:00.002+07:00

There are marriage obstacles so that the couple can not marry. Those are:
1. Nasab connection (blood relation)
A man is prohibited to marry:

His mother, his grandmother and so forth in upward stright line
His daughter, granddaughter, and so forth in downward stright line
His sister, his niece, and so forth in downward stright line
His aunt.

2. Semenda connection/Mushaharah connection (familial relationship because of marriage)
A man is prohibited to marry:

His mother-in-law or his ex-mother-in-law
Ex-wife of his father , ex-wife of his grandfather, and so forth in upward stright line
Daughter of his wife or daughter of his ex-wife (step-daughter), granddaughter of his wife or granddaughter of his ex-wife (step-granddaughter), and so forth in downward sright line; except the marriage with his ex-wife broken qobla al dukhul
His daughter-in-law, his granddaughter-in-law, and so forth downward stright line.

3. Radla’ah connection (suckling relation)
A man is prohibited to marry:

A woman suckled him (suckling mother), mother of his sukling mother ,and so forth in upward stright line
His suckling sister, daughter of his suckling sister, and so forth in downward stright line
Sister of his suckling sister and so forth in downward stright line
Sukling aunt
A women whom sukled on his wife and her descend.

4. Certain situations
A man is prohibited to marry a woman whom in certain situations. Those situation are:

The woman is still in married with another man
The woman is still on iddah period with another man
The woman is not Islam
The woman is his ex-wife with talak 3 times. (The prohibition drop if ex-wife had married with another man the 2nd marriage is broken ba’da dukhul and her iddah with her 2nd husband is finish)
The woman is his ex-wife with li’an.

5. Polygamy reason:

A man is prohibited to commit polygamy with a woman whom has blood relation or sukling relation with his wife/s. The prohibition is in force although his wifes have been raj’i talak but still in iddah period.
If a man has had 4 wifes, he is prohibited to marry again. The prohibition is in force as long as 4 wifes all in wedlock or still on iddah raj’I or one of them still in wedlock and the others are on iddah period of talak raj’i.

Bride and Bride-Groom

2009-09-29T08:01:00.001+07:00

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

2009-09-29T07:54:00.000+07:00

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.

Islamic Law with Design of Indonesia

2009-09-23T06:05:00.000+07:00

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)

Peminangan (Proposal of Marriage)

2009-09-22T05:21:00.000+07:00

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.

Nikah

2009-09-21T07:24:00.000+07:00

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

2009-09-21T06:59:00.000+07:00

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

2009-09-21T05:29:00.001+07:00

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) :

bride-groom
bride
wali nikah
two witnesses
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.