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.

Why Islamic Law is Still Up to Date?

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?...

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

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?