Free Will to Marriage

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)

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

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....

"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

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

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.