Li'an Oath

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

".... 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:

1. Quran
2. Sunnah Rasul
3. Ijtihad.

Quran
There are sections about inheritance:
A. the principal sections:

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

B. the assistant sections:

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

Sunnah Rasul

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

Ijtihad

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

Marriage Prevention by Registerer Official of Nikah

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

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?

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

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

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:

1. era of Mataram kingdom
2. era of Dutch colonial
3. 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.