Adoption in Islamic Law

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

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)

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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)

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.

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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)

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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

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?

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.