Mahar is not Marriage Gift

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

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)

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

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)

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:

1. Wife can not do her duty as wife
2. Wife in physical defect or taken ill that irrecoverable
3. 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

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

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).