ISLAMIC MARITAL LAW REFORM IN
EMPOWERING INDONESIAN WOMEN
Siti Musdah Mulia
I. Introduction
It is no secret that religion and state “conspire” against women. The Islamic Code of Law and a number of studies on women and law in
Analyses on legal cases in
On the other hand, Indonesian society is currently facing a number of social problems that require marital law reform. Cases of exploitation and discrimination against women are rampant, including domestic violence, women and children trafficking using the modus operandi of marriage, mushrooming practice of contract marriage that harm women and children, high number of underage children marriage and unregistered marriage, and widespread practice of prostitution.
This article intends to portray the magnitude of Islamic marital law reform in
II. The Dynamics of Family Law Reform in a Number of Islamic Countries
Law is a normative rule regulating human behavior. It does not grow in the vacuum, but instead built upon people’s awareness of collective regulation. The law should progress to keep up with the values grow in the society, including custom, tradition, and religion. Islamic law theory called them al-adat muhkamat, meaning that tradition or custom in a community can become a law.[6] As the consequences, any legal product must be seen as the product of its time, and inseparable from various influences encompassing its birth. A law is a social, cultural and political product, and thus it has always been contextual.
There have been efforts to reform family law, including marital law, in the history of Islam. It began in the early 20th century[7] in
The attempts to reform the family law in the Islam world within the modern period followed the emergence of Islamic reform thoughts from Muslim intellectual reformers like Rifa'ah al-Tahtawi (1801-1874), Muhammad 'Abduh (1849-1905), Qasim Amin (1863-1908), Mustafa al-Maragi (1881-1945), Sayyid Ameer Ali (1849-1928), Tahir al-Haddad (1899-1935), and Fazlur Rahman (1919-1988). In
III. The Purpose and Issues of Family Law Reform
A number of researches conclude that there are three purposes of family law reform in Islamic countries. First, to unify law as there are different schools of Islamic thoughts or different religions. In
What are the issues of family law that need reform? Referring to the research done by Tahir Mahmood, there are 13 crucial issues: Marriage definition, age requirement to get married, the role of father or male relative legally responsible for the bride (wali), marriage registration, financial capability in marriage, polygamy, household income, limitation of husband’s right to divorce, rights and obligations of husbands and wives after divorce, pregnancy and its implication, parents’ ijbar right, distribution and allocation of inheritance, will of wajibah, and issue of religious donation.[11]
Although Mahmood suggested a handful of issues to be reformed, the content of family law, particularly marital law, in many Islamic countries have yet to be changed significantly, especially regarding to the rights and obligations of husband and wife. This, according to Anderson, who diligently observes the attempts of family law reform in various Islamic countries, is due to the following reasons. First, Muslims in general see the family law, particularly the marital law, as substance or essence of sharia. Secondly, family law has always been seen as the foundation of Muslim community establishment. Thirdly, family law is still perceived as the major guidance for the majority of Muslim in the world, and fourthly, family law is the object of harsh debate between conservatives and moderates until now.[12]
It is no wonder, or even very natural, if the attempts to reform family law always face opposition, particularly from certain groups which claim as the owner of religious authority. Altering family law is seen as an attempt to change the essence of religion, and thus very dangerous for the sustainability of religious teachings. In the history of Islam, laws on economy, politics etc. could easily be changed, but not family law. Family law is sacred and must be protected from any kind of alteration. Many Muslim even believe that changing family law, especially marital law, means changing Islamic sharia. Defending marital law, no matter irrelevant it is, means defending religion. The attempts to reform family law are disobedience upon Islam.
As the results, not all Islamic countries have reformed their family laws. Regarding family law reform, there are three categories of Islamic country. First, the country that never renews its family law and still imposes family law stipulated in the classical Islamic jurisprudence books, like
IV. The Substance of Family Law Reform in Several Islamic Countries
1) Law Reform in
The family law reform in
Later on, Majallah underwent several revisions in 1959, 1964, 1981 and 1993. The highlights of the Tunisian family law reform are the obligation to divorce in court and prohibition of polygamy. These had caused serious debates among ulemas, with the majority of them rejected the stipulation. Nevertheless, the new law passed on, holding on to the principles of defending and empowering women. The prohibition on polygamy is stipulated in Article 18: “Having more than one wife is prohibited. Anyone gets married before the previous marriage ends completely will be sentenced to one year prison or fined 240,000 malim or both sentenced and fined.”[13] There are at least two theological arguments behind the polygamy prohibition. The slavery and polygamy institutions in the Muslim society are permitted only in the early development period of Islam, and based on historical facts, the requirement to be fair to one’s wives could only be met by Prophet Muhammad. [14]
2) Law Reform in
The highlight of the family law reform in
3) Law Reform in
After its independence in 1945, Syrian government began to nationalize and reform the country’s legal system. A number of laws were issued, like the trade law in 1949, criminal code in 1950, and family law (Qanun al-akhwal al-syakhsiyah) in 1953 which was amended in 1975 to guarantee women’s rights upon the law.[16] The family law reform in
4) Law Reform in
Family law reform in
Radical family law reform in
Regarding the status of child custody, amendment No. 100/1985 Article 20 states that women (wives) have the right to foster boys until they are 10 years old or 12 years old for girls. When the foster period ends, judge can rule that the mothers can still act as guardian without payment until the boys are 15 years old and the girls are married, if the judge is convinced that the needs of the children are fulfilled.
5) Law Reform in
Family law reform in
Family law reform in
6) Law Reform in
Although family law reform in
The brief illustration of the family law reform in several Islamic countries shows that the form and the content of marital law differ from one country to another. The differences may due to various interpretations and understandings of major sources in Islam about marriage and family. However, there are three important notes in the attempts to reform family law. First, the effort to renew family law always faces opposition from traditional and radical Muslim groups. Secondly, the family law reform process in various Islamic countries always produces new law with different content than the legal stipulation in the classical books of Islamic jurisprudence. Thirdly, the motivation to reform family law is to build quality and civilized society, as well as to improve the status and position of women and to protect children.
V. Family Law Reform in
While not formally declare itself as an Islamic state,
There was another effort to renew the family law in the 1960s, which resulted in the passing of the Law No. 1/1974 on marriage. This was the first law in
On
The Code of Law compiles all Islamic laws issued during the New Order regime, and the content is based on a number of Islamic jurisprudence books mostly written in the middle age. The Law was then imposed as official guidance for religious court judges[25] all over the country. The Code of Law was government’s respond to the “social unrest” due to different verdicts from religious court on a same case. The diversity is actually a logical consequence from various jurisprudential references of the judges. However, instead of perceiving the diversity of views as the treasure of legal sources, government responded by homogenizing the law. On one hand, the Code of Law made it easier for judges to issue a verdict and for other parties looking for legal references. On the other hand, it restricts the creativity and ijtihad efforts in the legal field. In the mean time, new challenges continue to emerge within the dynamics of society and the progress of science and technology, which in turn raised dilemmas among judges.
From the perspective of gender equality and equity, a number of articles in the Code of Law marginalize women. The Law confirms the majority views in Islamic jurisprudence which rate women second grade after men, in issues like guardian, witness, nusyuz (disobedience in marriage), polygamy and rights and obligations of husbands and wives. Whereas men and women have the same role in establishing a family, and in the eyes of Allah, they both are equally appreciated for their hard works, without discrimination.
Meanwhile, data shows that domestic violence cases are rampant. Report from the state ministry of women empowerment in 2001 revealed that 11.4 percent of the total population, or 24 million women said they have experienced violence, mostly domestic, ranging from torture, sexual assault, economy violence, abuse, adultery, and polygamy. The data, however, is the tip of the iceberg as many women who undergo violence are reluctant to report their cases.
Nevertheless, there are some breakthroughs in the Code of Law in term of Islamic law reform. They include marriage definition, marriage registration, age requirement to get married, agreement from both parties (bride and groom) in marriage, divorce is valid only if it is done in court, and conditions (taklik) of divorce.[26] The Law reform the issues quite significantly compare to the jurisprudence books. The definition of marriage in the books weighs too much on the biological needs, while the Code of Law emphasizes on religious service and religious obligation. Jurisprudence books do not require certain age for marriage, but the Law limits the age to 19 year old for the groom and 16 year old for the bride. Marriage registration is strongly suggested by the Code of Law, despite for administrative reason, while jurisprudence books do not state anything about it. Islamic jurisprudence allows polygamy as long as the husband is fair, although the definition of ‘fair’ is always based on men’s perspective. The Code of Law, however, adds that aside of fairness, polygamy is allowed only with wife’s consent and court’s permission. Classical jurisprudence states that silence already means permission, but the Law says that there should be written or verbal consent from the wife. Jurisprudence allow husbands to divorce their wife (or wives) anytime and anywhere, but divorce only valid if done in court according to the Code of Law. Islamic jurisprudence does not recognize divorce taklik (an oath from the husband not to make the wife suffer), while the Law requires it. In short, compares to the traditional jurisprudence, the Islamic Code of Law has reduced male domination and authority, gives stronger protection on the rights and the status of women, and has responded on the demands of society. The law reform endorsed by the Code of Law is apparently acceptable to Indonesian Muslim community, which indicates that law reform is a certainty.
VI. Marital Law Reform in Indonesia Through Islamic Code of Law’s Counter Legal Draft
The Counter Legal Draft of the Islamic Code of Law is formulated through research and critical analysis over the Code of Law launched in 2004 by The Gender Mainstreaming Working Group Team (Tim Pokja PUG) established by The Ministry of Religious Affairs in 2001. The Draft formula is similar to the Law, which consists of marital law, inheritance law and religious donation law. It offers family law reform to Indonesian Muslim, particularly to amend the Code of Law and Marital Law. The Draft formulates new model of Islamic law and is arranged based on the principles of Islamic teachings as stated in the Al-Qur'an and Hadith. The Draft has high regard on human rights; it advocates gender equality and equity in the relations of men and women, and voices the humanistic, pluralistic and democratic views of Islam.
a. Counter Legal Draft Offers New Paradigm of Marriage
Adhering to Islamic teachings about marriage, the Counter Legal Draft of the Islamic Code of Law offers new paradigm of marriage. First, marriage is defined as a serious pact (mitsaaqan ghaliidzan), agreed knowingly by a man and a woman to establish a family, whose implementation is based on the willingness and consensus of both parties. Second, the principle of marriage is monogamy (tawahhud al-zawj). Third, marriage is based on six major tenets: Willingness (al-taraadli), egalitarianism ( al-musaawah), equity (al-'adaalah), benefit (al-mashlahat), pluralism (al-ta'addudiyyah), and democracy (al-diimuqrathiyyah). Fourth, the purpose of marriage is to achieve a blissful (sa'adah) and prosperous (sakinah) family life with the foundation of affection (mawaddah wa rahmah), as well as fulfilling biological needs legally, healthily, safely, contentedly, and responsibly. Those four paradigms are the fundamentals of the Draft over the issues of guardian, witness, registration, age requirement, dowry, interfaith marriages, polygamy, divorce and reconciliation, transitional period for woman to remarry after divorce (iddah), ihdad (mourning period), financial matter, disobedient (nusyuz), position and status of husband and wife, and rights and obligation of husband and wife.
Muslim believes Islam is the perfect religion because its teachings cover all aspects of life, including guidance over marriage. The purpose of these guidance is for human to be safe and content, physically and spiritually. Islamic teachings can be categorized into basic principles and non basic principles. The former is believed to be originated from God Almighty and thus perpetual, unconditional and absolute, unchanged and cannot be changed regardless the reason. The basic principles are none other than Al-Qur'an and Hadith. Al-Qur'an is the Commandment of Allah, written in original Arabic conveyed to Prophet Muhammad. The translation of Al-Qur'an to other languages, including Indonesian, is not the basic principle because it was a result of human’s efforts. Ditto with the interpretation and all the implementations in social life. The Hadiths that include in the basic teaching are those believed to be originated from the Prophet.
Non principle teachings are resulted from the efforts (ijtihad) of ulemas since the period of the Prophet, including translation, interpretation, and other implementations of the basic principles. Therefore, they are relative, comparative, and are possible to change or be changed. Many of the non basic principles can be found in Islamic books since the classical period of Islam, particularly on translation books and jurisprudence books.
Islamic jurisprudence is the most implemented non basic teaching in Muslim communities. It is based on the understandings of Islam dug out from Al-Qur'an and Hadith. As a brilliant product of human thoughts, there is no guarantee that the jurisprudence views are not blundered or flawed. While we have to appreciate and honor the ijtithad of ulemas, it has to be taken into account that a product of ijtihad is influenced by the socio-cultural and socio-historical situation in the society. Therefore, an ijtihad product is not perpetual. The product may be suitable in a certain period of time, but may not be in other period. It may fit certain society, but not another community with different culture and needs. These imply that we can accept a product of ijtihad, but it should not keep us from being critical nor unwilling to accept other product that is more suitable for our own good.
Islamic teachings have two important aspects: Vertical and Horizontal. The vertical aspect implies human’s obligation to God (hablun minallah), while the horizontal aspect entails relations between human (hablun min al-nas). The second aspect is deemed crucial that Al-Qur'an and Hadith are filled with principles of humanitarian values; that all human are equal regardless the gender, ethnic, race, religion, social status and even religion (Al-Hujurat, 49:13). But more often than not, the vertical aspect is out in the front in the religious life that the humanitarian dimension, which actually reflects the vertical aspect, receives less attention in daily life, including marriage. As the consequence, marital regulations in Islam are too masculine, harsh, violent and not women friendly.
Al-Qur'an discusses marriage in details in many verses. There are no less than 104 verses, whether using the phrase marriage (berhimpun) which repeated 23 times or using the word zauwi (spouse) 80 times. Understanding the real meaning of marriage in Islam means unraveling all verses stating about marriage, sorts them out by its theme and see them as a whole, before concluding the essence of the verses. Deep analysis on all verses on marriage concludes as five basic principles of marriage: Monogamy principle[27], love and affection, complement and protection[28], civilized and well-mannered relation both in sexual or human relations,[29] and the principle of freedom to find spouse for both men and women. These basic principles, along with the aforementioned four paradigms, are the benchmarks of critical analysis of articles of the Code of Law.
Al-Qur'an (Al-Ahzab, 7; an-Nisa, 21 and 154) always describes marriage contract as mitsaqan ghalidzan, or sacred and serious pact between two equal parties (men and women) enclosed with love and affection. Each party is obliged to maintain the sanctity and perpetuity of the pact. Al-Qur'an also stresses the egalitarian relationship between husband and wife in the verses of az-Zariyat, 49; Fatir,11; an-Naba`, 78; an-Nisa`, 20; Yasin, 36; as- Syura, 11; az-Zukhruf, 12; al-Baqarah, 187; and an-Najm, 53. The emphasis is also found in a number of Hadiths. All of the verses and Hadiths strongly imply that marriage in Islam is more of a contract or agreement[30], indicated by ijab (offer) and qabul (approval).
b. The Factors that Bring the Formulation of Counter Legal Draft
There are at least six reasons of doing critical analysis on the Islamic Code of Law which brings the formulation of the Counter Legal Draft. First, to support the national program to eliminate violence against women issued by the state ministry of women empowerment in 2001. Known as the Zero Tolerance Policy, the program confirms government commitment to eliminate all form of violence no matter how small. The policy is based on Law No. 7/1984 on the ratification of the International Convention on Elimination of all kind of Discrimination Against Women (CEDAW), and in respond to the United Nations Declaration on December 20, 1994 on the elimination of violence against women. One of the important points raised in the national policy is the elimination of violence against women in the socio-cultural domain by revising the Islamic Code of Law. Why the Code of Law? Because some articles are deemed as the roots of violence against women, especially domestic violence. The national policy also states that one of the institutions hoped to do the revision is religious affairs ministry. As part of the commitment to improve women’s value and dignity and to eliminate violence against women, the gender mainstreaming working group of religious affairs ministry takes the liberty to do critical analysis over the Code of Law.
Second, the draft is a respond to a number of researches showing the troubled Code of Law, as a number of articles contradict with several national legal products, like Law No. 7/1984 on the elimination of any form of discrimination against women, the 2000 Law on children rights, Law No. 39/1999 on human rights particularly on women protection and empowerment, and even the amendment of 1945 Constitution. The Code of Law also contradicts with Law No. 22/1999 on regional administration, about the decentralization process with participation of people, regardless their gender, as well as Law No. 23/2004 on the elimination of domestic violence.
The Code of Law also brushes against international policy which strongly supports women empowerment, like the CEDAW and the Anti Racial Discrimination Convention (1999). On the regional level, Islamic countries joined in Islamic Conference Organization have issued Cairo Declaration (1990) which defends women’s reproductive rights. The Child Rights Convention (1990) which is ratified by the 2000 Presidential Decree on child rights, clearly states that the maximum age of a person to be called child is 18 years old. These conventions stress the importance of eliminating discrimination against race, nationality, gender, child status and religion.
Third, as a respond to the suggestion of religious affairs ministry’s directorate of religious court, which in 2003 proposed the bill on marriage to replace the marital law in the Code of Law. Aside of proposing the change of legal status, from presidential instruction to law, the directorate also suggested the addition of new articles about sanction for every violation, like jail sentence or fine over the failure to register a marriage. The proposal is based on the data that 48 percent of marriages are not registered, which inflict a loss upon women and children.
Fourth, as a respond to the demand of formalizing Islamic sharia in the regions like West Sumatra, South Sulawesi, Cianjur in West Java and Madura in East Java. The efforts to uphold sharia do not have clear concept of which sharia to be used. The alternative then is the implementation of the Counter Legal Draft of the Code of Law, which pays more attention to essential values of Islam, like equity, benefit, equality, and more accommodative to local wisdom and values.
Fifth, as a respond to the emergence of family law reform in Islamic countries, like
Sixth, to anticipate the survey in West Sumatra, West Java,
All respondents agree on the following issues: To include marriage registration into marriage principles so that marriage is not valid without it; to increase the age requirement for women to 19 year old, just like men; nusyuz (disobedient, usually of wives, especially with regard to granting of conjugal rights) can be imposed both on husband and wife; reconciliation should have wife’s consent; and clearer regulation is needed on the rights and status of child born outside the wedlock.
Other issue that needs to be addressed is household income during the iddah (transitional) period after divorce. The Code of Law states that ex husband must still finance the ex wife during iddah period. In reality, the money is never given if the wife does not file for divorce. The Law must stipulate that husband is obliged to finance the wife during iddah period, whether she files for divorce or not. Judges cannot rule the verdict before the wife’s rights are settled. The same thing with khulu’, which should only requires if the wife wants to divorce for no apparent reason. This should be followed with the obligation to pay iwadh to the husband.
The Draft was written in several stages. First, studying a number of researches on the Code of Law.[31] Second, conducting survey in five regions wanting to formalize the Islamic sharia: Aceh, West Sumatra, South Sulawesi, West Nusa Tenggara and
VII. The Burning Issues in the Counter Legal Draft
The Counter Legal Draft reforms several articles in the Islamic Code of Law which deemed not accommodative to the Islamic views that uphold humanity and democracy as stipulated in the Holy Al-Qur'an and Hadith, and contradict with the rules and regulations in the national and international levels.
There are 14 major issues in the marital law that need to change: Marriage definition, guardian, witness, minimum age for bride, dowry, marriage registration, nusyuz, rights and obligations of husband and wife, income earning, polygamy, interfaith marriage, iddah (transitional period), ihdad (mourning period), and rights and status of children born out of wedlock. Inheritance law, meanwhile, has four crucial issues: Inheritance for people of different religions, inheritance share of daughter, inheritance for children born out of wedlock, and 'aul dan radd. There are also issues of religious donations for people of different religion and intellectual rights donation. Below is the burning issues related to Marital Law.
a. Definition of Marriage
Article 2 of the Islamic Code of Law stipulates that “Marriage according to Islamic law is a binding contract or mitsaqan ghalidzan complies with the command of Allah, and performing it is an act of devotion.” Although the definition is more progressive than stipulated in the classical jurisprudence, the Counter Legal Draft offers another definition: “Marriage is a binding contract (mitsaaqan ghaliidzan) between a man and a woman, with full awareness, in order to establish a family and based on willingness and agreement of both parties.” The Draft stresses that marriage is carried out with full awareness of man and woman, and is based on their willingness and agreement.
Why is the phrase “act of devotion” and “command of Allah” need to be erased? Because the meanings have been distorted in the context of marriage, as if not getting married is a sin. As the result, many women get married to get rid of the stigma, or to avoid another sin: Disobedience to parents. Such understanding has caused forced marriage, women and children trafficking with modus operandi of marriage, polygamy, unregistered marriage and so on.
The concept of devotion in Islam has wide meaning. It encompasses all activities merely intended to receive Allah’s blessing. Even daily meal is an act of devotion if it is aimed at getting Allah’s blessing. What distincts an act of devotion with other act is the intention or the commitment. That is why many verses and hadith suggest Muslim to affirm their intention in doing something to get Allah’s blessing, including marriage. In other word, marriage is an act of devotion only if it is done willingly, voluntarily and responsibly instead of being forced or based on lust.
Ulemas have dissenting opinion about marriage as an obligation. A small percentage of ulemas see it as an act of devotion, like the Zahiri school of thought which holds on strongly to textual meaning. They base their argumentation on Al-Qur'an verse an-Nisa 4:3 which stipulates the command to get married (fankihu), implying marriage as obligation. In Indonesian jurisprudence books,[32] the instruction to get married is based on verses al-Zariyat 49, al-Nahl 72, and al-Ruum 21, as well as the Hadith which advises young men to get married. But the majority of noted ulemas, like Imam Syafi’i, emphasizes that marriage is not an act of devotion, but part of mu’amalah (relationship between humans). Using al-Nisa',
Many Muslim perceives marriage as contract of possession, so marrying means owning. This perception brings unbalanced relation to the lives of husband and wife. Common phrases developed in the society are husband marries, wife is being married; husband gives expenses, wife is financed; husband reconciles, wife is being reconciled; husband does polygamy, wife is polygamized; husband is the head of the family, wife is a mere member, and so on. There is no equal partnership between man and wife in a marriage, leaving many women without bargaining position.
Classical jurisprudence blatantly puts women as sexual object, and a possession to be enjoyed (milk al-mut'ah, milk al-budh'). It has caused women subordination, including on the issue of sexual rights. Hanafi school of thought even states that sex is the rights of men, not women. Therefore, husband is allowed to force his wife to serve his sexual need.[35] Clearly, what are expected from women in marriage are mere physical and sexual aspects.
The essence of marriage is wonderfully described in the Al-Qur'an verse al-A'raf, 7: 189, which is the process to return to the most authentic humanity form of nafsin wahidah (one self). Allah deliberately uses nafsin wahidah to make a point that marriage is essentially a reunification between man and woman in the practical level, following the initial unification as human. Other verse (al-Rum, 30: 21) stresses the essential unification, min anfusikun, or unification on the idealistic level with practical level (marriage) that is peaceful and full of affection. Peace and affection will not exist when a party negates and subordinates the other (spouse). There should not be any domination in marriage, as it will lead to ignorance of the spouse’s rights and existence. Removing domination in husband and wife relation will create civil, well-mannered, equal and full of affection relationship (mawaddah wa rahmah).
It can be concluded that the Counter Legal Draft stresses marriage as a right, not an obligation, of every adult both man and woman with certain requirements. People have the right to get married or stay single. Getting married and have a family and children are non derogable basic rights. The Counter Legal Draft also reemphasizes marriage as social transaction or contract involving two equal parties: Man and woman. This has to be restressed as marriage has been a contract between the groom and the bride’s father/guardian, instead of between bride and groom. This may discourage women to take more responsibility in marriage because they barely have legal role in the first place. The emphasis on social contract is necessary to eliminate incorrect perception of marriage as a possession of husband. Marriage should bind both parties to the legal imperative agreed.
b. Guardian for Women in Wedding Ceremony
Article 19 of the Islamic Code of Law stipulates: “Guardian in a wedding ceremony is required to marry off the bride.” The Counter Legal Draft, meanwhile, states: “Guardian is required in a marriage ceremony only when the bride is under 21 years old.” The Draft does not rule out guardian, and 21 year old is a proper age to marks adulthood and the ability to decide for oneself as a legal subject. Eliminating the requirement of guardian in a marriage ceremony is not new as Imam Abu Hanifah had stated it in the 9th century. A number of verses and hadiths also clearly confirm the existence of women as human, equal with men. There is no essential distinction for them to carry out religious teachings.
Islamic jurisprudence requires guardian in a marriage ceremony only for the bride, and the guardian must be a man -- father, grandfather, brother of the same mother, brother of the same father, nephew from her brother, uncle from the father’s side and so on. There is no slight opportunity for women to become a guardian, which means man and woman may be God’s creature, but their level is different in term of guardianship. They are valued and honored differently, with man as super ordinate and woman is subordinate.
Jurisprudence books in
Ulemas have different opinion about the requirement of guardian in marriage ceremony. Imam Malik and Imam Syafi’i say that guardian is required and a marriage ceremony without the presence of guardian is not valid. Imam Abu Hanifah, Zafar, al-Sya’bi and al-Zuhri, however, state that a woman who gets married without her guardian’s consent but her husband meets the requirement, then the marriage is valid. Imam Dawud al-Zahiry, meanwhile, says that guardian is only required if the bride is single, not a widow.
The dissenting opinion between ulemas is due to the differences in interpreting the phrase la nikaha illa bi waliyyin... (no wedding without guardian) in hadiths. Some ulemas interpret it as at is, that a wedding is “illegal” without guardian, and guardian is a requirement of marriage (annaha min syurut al-shihhat la min syurut al-tamam). Other ulemas, meanwhile, say that a wedding ceremony without guardian is “imperfect” instead of “illegal”. Abu Hanifah, for instance, says that guardian is only a supplement, not requirement, of marriage ceremony (fa-ka-annaha ‘indahu min syurut al-tamam la min syurut al-shihhat).[39] The views requiring guardian in marriage ceremony intends to maintain good relationship between children and parents, as parents usually know better about the children’s spouse to be. Because in Islam, it is not appropriate for a daughter to freely befriend men.[40] The Counter Legal Draft wants to settle the differences by requiring guardian for women under 21 years old, as those above 21 years old are considered matured and independent, and able to take a legal decision. Guardian or parents can still give suggestion, advice or consideration regarding the marriage, but they are not entitled to force or refuse a marriage.
c. Witness in Wedding Ceremony
Article 25 of the Islamic Code of Law stipulates: "A person who is eligible to become witness in marriage ceremony is a Muslim man who is fair, mature, mentally fit, and is not deaf.” The requirement is discriminative to non Muslim, women, and disabled people. Therefore, article 11 of the Counter Legal Draft offers: (1) The position of women and men as witness in wedding ceremony is equal. (2) Marriage ceremony has to be witnessed by at least two women or two men or a woman and a man. (3) Those eligible to become witness are at least 21 years old, mentally fit, mature (rasyid or rasyiidah) and appointed agreeably by the bride and the groom.
Marriage ceremony requires witness to make sure the ceremony really occurs. A witness should be a trusted person and sees the whole procession of marriage ceremony directly. In a modern society, witness alone is not sufficient as the marriage should be registered to authorized institution, like the religious affairs office. Why the Code of Law prohibits woman to become witness? While women play major roles in preparing the whole procession of marriage ceremony. They also attend the wedding among their male relatives. The prohibition to become witness is discriminative, not just upon gender equity perspective, but upon human rights in general. Aside from women, non Muslim, blind and deaf people are not allowed to be witness either, while Al-Qur'an condemns discriminative acts. Al-Qur'an even does not require witness during marriage ceremony, but instead witness at divorce agreement (thalaq) as pointed in verse al-Thalaq, 2.
d. Age Requirement to Get Married
Article 15 of the Islamic Code of Law states: (1) For the benefit of family and household, marriage can only be held if the bride and groom reach the age requirement stated by Article 7 of the Law No. 1/1974, which is 19 years old for the groom and 16 years old for the bride. (2) Couple under 21 years old is required to obtain permission as stipulated in Article 6 (2), (3), (4) and (5) of the Law No. 1/1974.
Article 7 of the Counter Legal Draft offers: (1) Both bride and groom have to be at least 19 years old (2) A bride or a groom can marry off his/herself as long as they are mentally fit, 21 years old, mature. (3) For the bride and groom who do not meet the requirements in point (2), then the one who is eligible to marry them off is family/relative or a person who acts on behalf of the family.
Al-Qur'an and Hadith do not clearly stipulate about the minimum age to get married. Muslim usually set it based on the situation where a woman has gotten menstruation and a man has gotten sexual dream. No wonder that there are many cases of “under age” marriage in society, which are simply child abuse and violation of children rights.
Prophet Muhammad himself was married when he was 25 years old, which should become a reference. Lower age limit for women in the Code of Law confirms women subordination. Why different age requirement? Setting age limit of 16 year old for women is violating Law No. 1/1979 on Child Welfare. Article 1(2) states: “A child is a person who has yet 21 years old and never married”. The requirement also violates the International Convention on Children Rights ratified by
The 2000 research of the department of women studies at the Jakarta State Islamic University shows that the ideal age for woman to get married is on average 19.9 years old, or 23.4 years old for man. It indicates the readiness of physical, economy, social, mental and spiritual, religious and cultural stances. The minimum age of man and woman to get married should be at least 19 years old, which mean they both have at least graduated from high school. Marrying at early age for women increases biological risk, like damaged reproductive organs and young pregnancy, as well as raising psychological burden like the inability to carry out reproductive functions well. Family life requires huge responsibility and role from both man and woman.
e. Dowry
Article 30 of the Islamic Code of Law stipulates: “The groom is obliged to provide dowry for the bride. The quantity, shape and type of dowry are agreed by both parties.” Meanwhile, Article 16 of the Counter Legal Draft offers: (1) Both bride and groom must provide dowry for each other according to local custom (2) The quantity, shape and type of dowry are agreed by both parties according to each other’s financial condition.
Jurisprudence books state that dowry is required in marriage ceremony and thus an obligation. The argumentation is based on an-Nisa, 4:4: wa atu an-nisa’a sadukatihinna nihlatan. But the verse actually does not say dowry, but instead sadukatihinna or alms. The dowry also follows the tradition of Prophet Muhammad where he gave dowry or gift to his bride. It was recorded in several Hadiths.[41]
Dowry is generally perceived as a gift from the groom to the bride during marriage ceremony. The form is varied, ranging from cash, golden jewelries, a set of prayer equipments, Al-Qur'an, or property and land. In
Islam sees dowry as a symbol of respect upon women, whose dignity is lifted upon to be equal with men. However, dowry is later misunderstood as the price of woman’s body, the payment for sex. Once a man gives the dowry, he claims the ownership of woman’s body and is entitled to have sex whenever he wants. This perception is not baseless, but refers to the view of classical jurisprudence. Marriage in classical jurisprudence is always defined as “akd li at-tamlik” (contract of the ownership upon women’s body) (see the beginning of this article). The issue of dowry has also been related to dukhul (sexual intercourse), like when a couple is divorced before dukhul, then the husband has the right to return only half of the dowry. If the divorce is after dukhul, then the husband has to give the entire dowry.
Although the word “dowry” cannot be found in the Al-Qur'an, but there are several words with similar meaning, like ujrah (An-Nisa`, 4:25), shadaqah (An-Nisa`, 4:4), and faridhah (Al-Baqarah, 2: 236- 237). From the verses, we can conclude that dowry is a gift from a husband to a wife during marriage ceremony, as a symbol of love and affection, as well as a symbol of responsibility and sincerity to carry out the mandate of marriage ruled by religion. Then what about the dowry practiced by the Prophet? A number of hadiths describe as followed: “From Abdullah ibn Umar ibn Rabi`ah, from his father, states: Prophet Muhammad allows a man to marry a woman with a pair of sandals as dowry” (Hadith of Turmuzi).” “From Sahal ibn Sa’id r.a.. He said Prophet Muhammad once married off a man to a woman with steel ring as dowry” (Hadith of Hakim). “ Another hadith states: “From `Uqbah ibn Amir, he said that Prophet Muhammad uttered that the best dowry was the easiest to obtain.” .(Hadith of Abu Dawud). When the Prophet married Shafiyyah, he did not provide dowry in the form of material possession, but instead the freedom from slavery. The historical event is recorded in a hadith of Bukhari-Muslim: “From Anas ra, from Prophet Muhammad: He had freed Shafiyyah and the freedom was the dowry”.
These hadiths conclude that there is no strict rule on dowry, its shape or quantity. The more important thing is dowry should not become a burden. Dowry is a symbol of respect, love, affection, sincerity and responsibility. Its value does not lay on the shape or price, but on the intention or motivation from the person who gives it and how s/he transforms the intention into good behavior in the family life. Dowry is thus not a monopoly of men, but women may give it as well. Isn’t giving a wonderful thing?
f. Marriage Registration
Article 5 of the Code of Law states: “In order to maintain the order, marriage among Muslim must be registered.” The registration is for the sake of administrative issue, instead of marriage requirement. Meanwhile, article 6 of the Counter Legal Draft offers: "Marriage is legal when meeting the requirements: Bride, groom, ijab and qabul, witness and registration.” Article 12 of the Draft stresses: (1) All marriage must be registered (2) Government is obliged to record every marriage of every citizen.
Compare to traditional jurisprudence views on marriage registration, the Code of Law actually is more progressive as it stipulates registration in Article 5, 6 and 7. The stipulations in the articles show the importance of marriage registration, but it has yet been emphasized as the requirement for legal marriage. People in general still see registration as what stated by the classical jurisprudence, that as long as the marriage ceremony has met religious requirements, registration is not needed. As the result, there are rampant cases of unregistered marriage.
The Counter Legal Draft includes registration as the requirement for legal marriage. The theological argumentation is al-Baqarah, 2:282 which requires legal document in a debt transaction.[42] Marriage is basically an important transaction, even far more important than other transaction in human life. If mere debt agreement has to be recorded, then the more crucial marriage contract should be registered.
Another argument is the hadith stating: … never do prostitution and never do unregistered marriage” (See the Kitab an-Nikah, Sunan at-Tirmizi, Hadith No. 1008; Kitab an-Nikah Sunan an-Nasai No. 3316-3317; Kitab an-Nikah Sunan Ibn Majah, Hadith No. 1886). There are also a number of hadiths that suggest the announcement of marriage (See as-Sarakhsi, al-Mabsut; V:31; Sunan at-Tirmidzi No. 1009; Sunan Ibn Majah No. 1885; and Musnad Ahmad No. 15545) and other hadiths that require witness in a marriage ceremony to validate marriage. There is also atsar Umar ibn Khattab who does not recognize a marriage only attended by one witness. Whereas registration is legally stronger than than witness, especially when issued by state’s official institution.
Unregistered marriage inflicts big loss upon wife and children. In an unregistered marriage, a woman is not a legitimate wife upon the law because she does not own marriage certificate as an authentic document. She is not entitled for joined property when divorce occurs because the marriage is considered non existence. She does not have the rights for the income and inheritance of the husband when divorce occurs or if the husband dies. Aside of legal implications, unregistered marriage also brings social implication for women, as society sees her as mistress or as half of de facto couple.
The consequence for children in an unregistered marriage is their status become illegitimate, stated in his/her birth certificate as “children born out of the wedlock.” Children do not have civil relationship with the mother and her family, nor legal relationship with the father (Article 42 and 43 of the Marital Law). The stipulation in the birth certificate creates unfortunate social and psychological impacts for the children and their mothers. The unclear status of the child upon the law also erases the rights of the child over financial support, inheritance, and other expenses from the father.
According to Abu Hasan al-Mawardi and Ibn Taimiyah,[43] Islamic law obliges state to protect its citizen from any form of exploitation and other treatments that inflict loss, by issuing regulations that will create peace and harmony. Government functions as fi harasah al-din (protecting religion) and fi siyasah al-dunya` (arranging worldly order). In performing the two functions, government must be obeyed by society as long as it does not ask to do immoral things or any other thing that caused disadvantages. Government is allowed to issue regulations or siyasah al-syar'iyah, or a set of regulation to support the teachings of Al-Qur'an and Hadith, although it has never been previously formulated by ulemas.
g. Nusyuz within Marriage
Article 84(1) of the Code of Law formulates: “A wife is considered nusyuz (disobedient) if she is unwilling to carry out obligations as stipulated in Article 83 (1) except for legitimate reason.”
The Counter Legal Draft implies that disobedient can also be imposed on husband as stated in the Al-Qur'an. Article 53 of the Draft stipulates: (1) A husband or a wife is considered nusyuz if s/he is not performing his/her obligations or is violating the rights regulated in Article 50 and 51. (2) The settlement of nusyuz is held peacefully within family discussion. (3) When peaceful settlement fails, the party who suffers the loss can file suit to the court. (4) When violence or torture occurs because of nusyuz, then the harmed party can press criminal charges to police.
Nusyuz means disobedience or violation against command. Generally, society sees nusyuz as disobedience of wife to husband, and not vice versa. Nusyuz creates domestic violence, and the fact that it is not imposed to the husband is a double standard. As a normal human being, man has the capability to conduct nusyuz, and even Al-Qur'an blatantly stipulates that nusyuz can be imposed on men as well (an-Nisa, 4:128). The verse about nusyuz (an-Nisa,
h. The Rights and Obligations of Husband and Wife
Article 79 of the Code of Law states: (1) Husband is the head of the family and wife is the homemaker. (2) The rights and position of a wife is balanced and equal with that of a husband in a household as well as in the society. (3) Each party is entitled to do legal behavior. In a glance, the content of Article 79 is inconsistent as how could the positions and rights be equal when the first verse clearly states that husband is the head of the family?
Meanwhile, Article 49 of the Counter Legal Draft offers: (1) The position, rights and obligations of husband and wife are equal within the family or society. (2) Husband and wife have the rights and obligation to establish a good family based on mawaddah, rahmah, dan mashlahah.
As for the rights of husband, Article 80 of the Code of Law stipulates: (1) Husband is the adviser of wife and household, but important household matters are decided by husband and wife. (2) Husband is obliged to protect his wife and to meet the household needs according to his ability. (3) Husband is obliged to provide religious education for his wife and to give opportunity to learn the knowledge useful for religion, state and nation. Article 83 of the Law stipulates the rights of wife as followed: (1) The main obligation of wife is to serve his husband devotedly within the perimeters permitted by Islamic Law. (2) Wife manages and arranges the daily needs of a household as best as she can.
Meanwhile, Article 51 of the Counter Legal Draft sees the obligations of husband and wife as followed: (1) To love each other, to give respect, honor, and protection to one another, and to accept each other’s differences. (2) To support each other and to meet the needs of the family according to their abilities. (3) Both husband and wife manages the household based on their agreement. (4) Give opportunity to one another to improve their potentials. (5) To look after, to take care andto educate the children. These obligations work for both parties as long as the marriage takes place.
The phrase “head of family” implies power and authority. A husband then can become so powerful that he obliges his wife to do all the domestic chores and to serve him devotedly. This perception contradicts with the moral of Islam stipulated in the Al-Qur'an verse al-Baqarah, 2:187, where Allah stresses the equal position between husband and wife (hunna libasun lakum wa antum libasun lahunna (husband and wife gives each other’s protection).
Positioning husband as head of the family negates social reality and only accommodates one type of family, which consists of father (husband), mother (wife) and children. While there are various forms of family or household: Single mother with children, orphans with the oldest daughter in charge, and so on. Many women are in charge as the head of family, but are not recognized by law. In the condition of wars and natural disasters, like the tsunami in Aceh, or when the husband works abroad, women are forced to be the head of the family. These situations, as well as a number of international and national conventions – Universal Declaration of Human Rights (DUHAM PBB 1948), CEDAW (The Convention on the Elimination of all forms of Discrimination against Women), Human Rights Convention in Kairo, Amendment of Article 28 of the 1945 Constitution, The 1999-2004 State’s Guidelines and Article 51 of Law No. 39/1999 on human rights – can become legal reference to see the more egalitarian position of husband and wife.
Every human being is basically a leader, at least for oneself. Each and every one of us will be asked for our responsibility upon Allah. A hadith states: “Every one of you is a leader and each of you will be asked about your leadership. A maid is a leader for looking after his/her master’s possession, and will be asked for his/her work.” (Hadith of Bukhari Muslim). This hadith implies the opportunity to anyone regardless their gender to become a leader. Leadership has something to do more with ability, self confident, independency, maturity, courage, sense of responsibility, and devotion to Allah.
i. Financial Caretaker of a Marriage
Article 80 (4 and 6) of the Code of Law stresses: (4) Based on his income, husband responsible for: a. financial matters, kiswah and residence of wife; b. household expenses, medical expenses for wife and children and childcare fund. c. children’s education tuition. (6) Wife can release his husband from the responsibility stated in point (4) a and b.
The Counter Legal Draft offers that income earning is a collective responsibility between husband and wife. But it has to be noted that reproductive duties (pregnancy, labor, breastfeeding and childcare) are far more valuable than earning money. Therefore, wives who opt for reproductive duties must be released from the obligation to earn income, and must be given appreciation, like moral support, nutritious food, medical treatment and so on, according to husband’s ability and the benefit of the family. Article 52 of the Draft stipulates: (1) Being pregnant, giving labor and breastfeeding are more valuable for wives than income earning. (2) The implication of point (1) is that wife is entitled to have balanced reward based on agreement of both parties. (3) If the agreement is failed to obtain, each party may ask for settlement in court.
There are no differences between husband and wives in term of earning income to meet family needs. A job that is suitable for husband is also suitable for wife, and vice versa. Domestic chores are not only woman’s responsibility but the whole family’s. Wife may also be involved in public domain. There is no prohibition for women to have career outside home. Prophet’s wife Khadijah and daughter Fatimah are the examples of wives who work to earn family income.[44]
j. Prohibition of Polygamy
Article 55 of the Code of Law stipulates: (1) Having more than one wife at a time is limited to four wives. (2) The main condition to have more than one wife for the husband is to be fair for the wives and the children. (3) Failing to meet the condition states in point (2) means prohibition to have more than one wife.
Meanwhile, Article 3 of the Counter Legal Draft strongly emphasizes on the prohibition of polygamy: (1) The essence of marriage is monogamy (tawahhud al-zawj). (2) The failure to meet the condition on point (1) means that the marriage is invalid upon the law.
Thousands of years before Islam descended in
The spirit of the reform is strong commitment to eliminate polygamy as it goes against principle of justice which is the core of Islamic teachings. This spirit has to become guidance to reform Islamic law regarding polygamy. Strong restriction in Islam on polygamy should be seen as a noble intention to erase polygamy gradually. Alcohol and slavery were not prohibited at once, but instead gradually until society was ready to accept it, as the tradition to drink alcohol and slavery were deeply entrenched in Arab society. Every verse of Al-Qur'an uses phrases suitable for the condition when they were revealed. But the moral of Al-Qur'an is not limited by historical period. Verses on polygamy, slavery and drinking alcohol aim to make human realize its dignity as the most dignified creature of God. Humans must respect themselves and others indiscriminately, humans must not be self destructive by drinking alcohol and humans must not harm others through polygamy and slavery.
Prophet Muhammad lived and grew up in the tradition of polygamy, but opted for monogamy. He married Siti Khadijah and they lived together happily for 28 years until she passed away. The joy of the couple inspires millions of couples who say a prayer referring to the Prophet and his wife in their marriage ceremony. There were enough reasons for the Prophet to practice polygamy: He was capable of being fair since he was a prophet, he was a descendant of noted Quraisy figure, sympathetic and good looking, a respected figure in society, charismatic religious leader, and his wife Khadijah was not able to give him a son. But he was undeterred. For Prophet Muhammad, Khadijah was not mere sleeping companion, but colleague, discussion partner, a shoulder to cry on, best friend and soul mate. The death of Khadijah was a huge ordeal for Muhammad that the year of her death was immortalized in the history of Islam as “amul azmi” (the year of grief). For the rest of his life, Prophet Muhammad always mentioned the kindheartedness and compassion of the woman he really loved. Three years after Khadijah passed away, Muhammad was faced with huge responsibility of developing missionary endeavor to Yastrib and outside
Compare to traditional jurisprudence view, the Code of Law is more progressive by stating that polygamy can only be legal through court permission. But court permits polygamy with conditions: 1) That the wife is unable to carry out obligations; 2) the wife is disabled or suffering incurable disease; 3) the wife cannot bear children. All conditions allowing polygamy is only seen from husband’s perspective and does not consider the interest of women at all. What if the husband unable to carry out his obligations? What if the husband is disabled and ailing? Or what if the husband is infertile? Even the reasons go against Allah’s guidance stated in an-Nisa,
An-Nisa 4:3, the verse that has always been the theological foundation of polygamy, actually does not talk in the context of marriage, but in the context of protection for orphan. Therefore, it requires thematic interpretation (tafsir al-ma'udhuiy) in formulating a law. Polygamy law cannot be based only on one verse – even the verse sounds more prohibiting than allowing polygamy – but based on every verse stipulating marriage as mentioned earlier in this article in the part about principles of Islam.
k. Interfaith Marriage
Article 40 of the Code of Law clearly prohibits marriage between different religions. But Article 54 of the Counter Legal Draft offers: (1) Marriage between Muslim and non Muslim is allowed. (2) Marriage between Muslim and non Muslim is based on the principle of respecting each other and upholding the freedom to carry out each party’s religious teachings and faith. (3) Before conducting marriage ceremony, government obliges to gives direction to the couple about marriage between Muslim and non Muslim so that each party recognizes every possibility that may occur because of the marriage.
Article 55 gives more detail as followed: (1) In a marriage between Muslim and non Muslim, the children have the right to choose any religion freely. (2) When a child cannot pick his/her own religion, then he would have temporary religion based on parent’s agreement.
The Code of Law’s prohibition on interfaith marriage fully represents the view of traditional jurisprudence, like the book of Women Jurisprudence, which forbids interfaith marriage for leadership reason. A husband should lead his wife and the latter should be obedient to him. It is wrong for infidels to own guardian rights or power over Muslim.[45] The book Ilmu Fiqih Islam Lengkap (The Complete Islamic Jurisprudence Studies) prohibits interfaith marriage simply because all non Muslim are considered infidels.[46] Meanwhile, the Counter Legal Draft does not prohibit interfaith marriage as long as the purpose of marriage is in line with the aforementioned definition. Interfaith marriage is still prohibited if it aims at religious conversion or as a modus operandi of women trafficking and any other hideous intention. Therefore, interfaith marriage can only be held based on court authorization and court’s deep examination beforehand. The Draft refers to a number of views from ulemas that rarely being referred in the jurisprudence books in
Al-Qur'an categorized non Muslim in three groups. First, the ahl-kitab. There are various meanings of this phrase, from the literal one to the loose one. Generally, this group means people who recognize the revelation books passed by Allah to His prophets. Include in this group are Christians and Jews.[48] Muslim men may marry women from of ahl al-kitab, as clearly stipulates on Al-Qur'an verse al-Ma`idah, 5: “And you are allowed to marry women who maintain their honors, mukminah or ahl al-kitab before you.” History of Islam records apostles who married ahl al-kitab women, like Utsman ibn ‘Affan, Thalhah bin Abdullah, Hudzaifah bin al-Yaman, Sa’ad ibn Abi Waqash, and so on.[49] There is no single Al-Qur'an verse that prohibits Muslim women to marry ahl al-Kitab men. Based on the principle of jurisprudence, ‘adam al-dalil huwa al-dalil (no reference indicates no prohibition), Muslim women then are allowed to marry ahl al-Kitab men.
Second, the musyrikin. Musyrik means denying the existence of God, Prophets and the after life. According to Ahmad bin Hanbal, musyrik in the Arab society are those who worship statues.[50] Therefore, everyone who believes in Allah and does not put something before God cannot be categorized as musyrik, regardless his/her religion. Musyrik has nothing to do with religion as one can be a Muslim but inside, s/he denies the presence of Allah or believing in more than one God (syirik) that s/he can be categorized as musyrik.[51] There is a norm stating “man lan yakun lahu washf lam yusytaq ‘anhu ism”. Syirik is also a very personal thing as it involves faith, and thus cannot be identified objectively. Devout men must not marry musyrik women and vice versa because according to Al-Qur'an, “They will trick them to hell, while Allah invites people to heaven and gives mercy” (al-Baqarah, 221). Then, it is not just musyrik people who cannot be married but anyone with the intention or potential to plunge us into hell, like corruptors, terrorist, robber, and other criminal.
Third, the kafir. Generally, kafir means people outside Islam. It is categorized as kafir dzimmi, kafir harbi, kafir musta`min, and kafir mu’ahad. Most classical mufasir prohibits marriage between Muslim and kafir based on al-Mumtahanah,10 ("...And do not hold into the knot (marriage) with those kafir people”). But a number of ulemas explain that the verse, as with al-Baqarah, 221 has been nasakh by al-Ma`idah, 5. In short, the views of ulemas about the marriage between Muslim and non Muslim are either permitted, completely prohibited, or allowed with condition, that is if the non Muslim is from the ahl kitab group and women.
l. Iddah (Transitional Period) in Marriage
Article 153 of the Code of Law states: “Divorced wife has to undergo a transitional period or iddah, except for qobla al dukhul and the marriage contract is broken not due to the death of husband.” Qobla al Dukhul means divorced wife that has not done sexual intercourse with the husband. It implies that the regulation on iddah in the Code of Law relates to sexual activities or pregnancy. Islamic jurisprudence books in
Therefore, Article 88 of the Counter Legal Draft offers revision: (1) For husband and wife whose marriage contract is declared broken by the religious court, there is a transitional period or iddah imposed for them. (2) During the transitional period, former husband or former wife is entitled for reconciliation. The Draft stresses that iddah is imposed on both husband and wife instead of wife only. Husband must also has iddah period, with the timeline is in line with local tradition or agreement, while iddah period of the wife follows the stipulation of the Code of Law. There is no single text which literally mentions about husband’s iddah, but the moral obligation contained in religious teachings about iddah is imposed on husband and wife. Both parties must have empathy, tolerance and solidarity for the family of (former) spouse, especially the children.
m. Ihdad (Mourning Period) in Marriage
Article 170 of the Code of Law stipulates: (1) A wife whose husband dies must undergo mourning period equals to iddah, as a sign of grief and to avoid calumny. (2) A husband whose wife dies undergoes morning period appropriately. The Law rules that ihdad is not only for wife but also for husband. It is such a progressive idea, but has yet implemented in society as people still refers to jurisprudence stipulation stating that Ihdad is only for wife, not husband.
Article 112 of the Counter Legal Draft says: “Husband or wife whose spouse dies must undergo mourning period equals to transitional period.” Aside from imposing ihdad on husband, the Draft also erases the stereotype that a wife should mourn to avoid calumny. Why calumny should only associated with wife, while it can happen to anyone including husband. Such rule only stigmatizes women that women are fragile, and are easily seduced or fall into sexual diversion, and therefore have to be kept at home.
The Draft offers Islamic view that is humanistic and egalitarian. Islam stresses that all human, both man and woman, are God’s creature. The difference between them is the quality of devotion. Both are obliged to take care of themselves to avoid calumny. Both must restrain their sights and sexual organs to avoid sin. Both man and woman must become the moral pillars in society to establish a good society (baldatun thayyibah wa rabbun ghafur). A number of Al-Qur'an verses explicitly explain the issue, and even stresses the importance to restrain their sexual organs for men (al Mukminun, 23:5, al-Nur, 24:30-31, al-Ahzab, 33:35, al-Ma`arij, 70:29). Ihdad (mourning period) is highly suggested for psychological reason, not just for wife, but also husband. At least as a statement of grief and a symbol of solidarity for the spouse and his/her family.
n. The Rights and Status of Children Born Out of Wedlock
Article 100 of the Islamic Code of Law states: "Children born out of the wedlock only have familial relationship with their mother and her family.” It is not fair to force children out of wedlock to only have relationship with their mother and her family, while the children have biological father who must hold responsibility. Therefore, Article 47 of the Counter Legal Draft suggests: (1) The status of children born out of wedlock is related to the mother and the man who impregnated her. (2) Any doubt about the status of children can be settled at religious court. The purpose of the revision is for the children to find their biological father and to make their status equal with children born within the wedlock.[53] Islam makes it clear that children do not inherit the sin of their parents (al-Fathir,18). The children are entitled to be recognized and have relationship with the parents, to be financed, and even have the rights to get inheritance from both parents. Government is obliged to facilitate the identification process of their biological fathers. There are many verses of Al-Qur'an and Hadiths which asks to see and to treat human being not over the marital status of their parents, but over their good deeds (al-Hujurat, 13).
VIII. Conclusion
Islamic Law, including marital law, is developed and reformed in line with the dynamics of Muslim society in many regions. Islamic marital law, particularly in
Family law reform in the form of Counter Legal Draft offers an ideal, just and democratic marital law based on Islamic teachings that uphold humanitarian values. The purpose is to establish a blissful marriage filled with love and affection (mawaddah wa rahmah), civilized behavior of husband and wife (muasyarah bil ma`ruf), mutual respect and understanding, as well as completing each other to obtain happiness in life and the after life.
The Draft strives to eliminate domination, discrimination, exploitation and violence within marriage by anyone with any reason. It is hoped that there would be no more forced marriage, underage marriage, unregistered marriage, irresponsible contract marriage, and polygamy. As an alternative which is based on research and analysis, the Draft is not final nor has it to be accepted without objectikon. Instead, it has to be seen as an ijtihad to promote the Islamic teachings which emphasize on love and respect for human being and humanitarian values. The Draft is also an effort to seek solution for a number of contemporary social problems faced by Indonesian society.
Lastly, the Draft aims at empowering women and giving full protection for women as human being, as explained in the Al-Qur'an and Sunnah and also as stipulated in the Constitution and other regulations, like CEDAW. With the Draft, Indonesian Muslim community will be able to promote Islamic teachings that are women friendly and a blessing for the whole universe (rahmatan li al-'alamin). In urîdu illa al-ishlâh mastatha’tu. Wa mâ tawfîqiy illâ billâh. Wa Allah a'lam bi as-shawab.
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[1] See the research results of Tapi Omas Ihromi on Women and National Law (1997); Siti Musdah Mulia on Women’s Position in Marital Law and the Islamic Code of Law (2001); and Sulistyowati Irianto on Women Among Various Legal Choices (2003).
[2] More detailed analysis on the forms of gender inequity in
[3] Details on legal cases of gender inequity in
[4]The Family Law in Islamic literatures always include marital law and inheritance law. The term family law refers to the phrase Qanun al-Ahwal al-Syakhsiyyah, Qanun al-Usrah, Ahkam al-Zawaj, Qanun Huquq al-`Ailah which has always been used in the discussion of Islamic Law on marriage and matters pertaining to inheritance.
[5] The name Counter Legal Draft (CLD) was deliberately picked to steal public attention. This draft, like KHI, consists of three law formulas: Marital law, inheritance law, and religious donation law. CLD only revises certain KHI articles that are gender bias, filled with patriarchal values, and do not accommodate Islamic views that are more pluralistic and humanistic. CLD is the result of two-year (2002-2004) research and analysis from the Islamic Law Reform Team established by the Religious Affairs Ministry’s Gender Mainstreaming Working Group (PUG) which coordinated by the writer. The members of the team are Marzuki Wahid, Lies Marcoes, Abdul Moqsith Ghazali, K.H. Dr. Mubarok, Anik Farida, Ahmad Suaedy, Marzani Anwar, Abdur Rahman, Shaleh Partaonan, and Asep. CLD was published officially on Oct. 4, 2004 at Aryaduta Hotel,
[6] Jalaluddin Al-Suyuthi, Al-Asybah wa Al-Nazhair, t.tp. t.th., p. 63.
[7]For more comprehensive discussion, see Tahir Mahmood, Family Law Reform in The Muslim World, N.M. TRIPATHI PVT. LTD, Bombay, 1972, p. 49; and J.N.D. Anderson, Law Reform in the Muslim World, The Athlone Press, London, 1976, p. 2.
[8] Tahir Mahmood, op.cit., p. 17.
[9] Dawoud El. Alami and Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World, Kluwer Law International,
[10]Munawir Syadzali, Islamic Teachings Reactualization, in Iqbal Abdurrauf Saimima (Ed.) Polemic of Islamic Teachings Reactualization, Pustaka Panjimas,
[11]Tahir Mahmood, Personal Law in Islamic Countries (History, Text and Comparative Analysis),
[12] J.N.D. Anderson, Law Reform in The Modern World, Anthone Press,
[14]
[17] Tahir Mahmood, Op. Cit., p. 150.
[18] Ibid., p. 48.
[19] Dawoud El Alami, Op. Cit., p. 58.
[20] Tahir Mahmood, Op.Cit., p. 78-79.
[21] Ibid., p. 68-69.
[22] Khoiruddin Nasution, The Status of Women in
[23] Wirjono Prodjodikoro, Marital Law in Indonesia, Vorkink van Hoeve,
[24] Indonesian Presidential Instruction No. 1/1981, Islamic Code of Law in Indonesia, Religious Court Guidance Directorate, Directorate General of Muslim Society Guidance and Haj Pilgrimage, Indonesian Religious Affairs Ministry, Jakarta, 2002, p. 152.
[25] Indonesia has three type of courts: District Court deals with general cases of citizens regardless the religion; Religious Court to handle marital cases, divorce, marriage reconciliation, religious donation, and other issues regarding Indonesian Muslim Community; and Military Court which handles military cases. Since the legal reform in 1999, the three courts were gradually moved under the supervision of Supreme Court. Religious Court only moved in 2004.
[26] Ramlan Yusuf Rangkuti, Islamic Law Reform in Indonesia, PhD Dissertation at Syarif Hidayatullah State Islamic University, Jakarta, 2003 (it is yet published).
[27] An-Nisa`, 4:3 and 129.
[28] Al-Baqarah, 2:187
[29] An-Nisa`, 4: 19; at-Taubah, 9:24 ; and al-Haj, 22:13
[30] An-Nisa`, 4:21 and Al-Baqarah, 2:231
[31] There are 11 thesis, 9 dissertation and 23 articles found which discuss about the Islamic Code of Law. Despite the number of researches containing progressive ideas on Islamic law and recommending family law reform, there is barely any significant respond from the society, ulemas and radical groups. The religious affairs ministry’s working group opts for a Counter Legal Draft to attract public attention and responds from ulemas and Muslim scholars. It works. It gains both supporters and opponents, but at least the Draft has opened the discourse on the dynamics of Islamic thoughts which so far tend to be stagnant, or even considered final.
[32] The reference to Indonesian Islamic jurisprudence book is deliberate with the assumption that Islamic principles of marriage in
[33] A number of literatures of Syafi’iyah mention this, including Fakhruddin ar-Razi, al-Ghaib Mafatih Translation, Section 9, p. 140. Also see As-Sayyid Muhammad Syata' al-Dimyathi, Kifayah al-Atqiyaa', p. 22.; Syihabuddin al-Ramli, Nihayah al-Muhtaj, Section 6, p. 183.
[34]Abu Hasan al-Mawardi, Ahkam al-Sulthaniyyah, Dar al-Fikr,
[35] Abdurrahman Al-Jaza'iri, Al-Fikih ala Madzahib Al-Arba'ah, Vol. IV, p. 4.
[36] It is deliberate to refer to Islamic jurisprudence books in
[37] The books include The Complete Islamic Jurisprudence Studies, by Drs. H. Moh. Rifa’I, published by Karya Toha Putra,
[38] Hadith of Ibnu Hibban.
[39] For the detail explanation on dissenting opinion between ulemas, see Ibnu Rusyd, Bidayat al-Mujtahid, p. 18. Ulemas who require guardian in marriage ceremony contradict with verses al-Baqarah (2): 232 and 221. Verse 232 clearly asks guardian not to prevent a woman who has been divorced to marry other man she consider suitable. The phrase … fa-la ta’dhuluhunna.. refers to the authority of guardian. Verse 221 prohibits guardian to marry off his son/daughter to with ‘infidels’ unless the latter become faithful.
[40] Moh. Rifa’i, The Complete Islamic Jurisprudence Study, Toha Putra,
[41] Hadiths mentioning about dowry include Hadith of Anas RA recorded by Bukhari-Muslim; Hadith of Abu Dawud from Uqbah ibn Amir; Hadith of Tirmidzi from Abdillah ibn Umar; and Hadith of Hakim from Sahal ibn Sa’id.
[42] Al-Baqarah, 2:282
[43] Abu Hasan al-Mawardi, Ahkam al-Sulthaniyyah, Dar al-Fikr, t.th,
[44]Muhammad Abduh, Tafsir al-Manar, Vol. II, p. 375-78. Also see Fatawa Mu’ashirah, Section II, p. 106; Musthafa al-Maraghi, Tafsir al-Maraghi, Section II, p. 166.
[45] Anshori Umar, Women Fiqih,
[46] Moh. Rifa’i, Op. Cit., p. 472-473
[47] Advanced discussion on interfaith marriage, see Siti Musdah Mulia, Reformer Muslim Women: Women who Reforms Religiosity, Mizan,
[48] Some ulemas make a distinct between ahl al-kitab and syubhah al-kitab. Ahl al-Kitab consists of Christians and Jews, while syubhah al-Kitab are followers of Majusi and Wastani religions.
[49]See Ibnu Katsir, al-Qur`an al-‘Adhim Interpretation,
[50]Ibnu Katsir, Tafsir al-Qur`an al-‘Adhim,hlm. 297.
[51]Al-Qur'an says that Muslim who are not willing to pay tithe can be called musyrik as Allah says, “ wa waylun li al-musyrikin alladzina la yu`tuna al-zakat”. (Fushshilat [41], 7).
[52] Moh. Rifa’i, Op. Cit., p. 499.
[53] This proposal is in line with the Convention of Children Rights and Law on Children Protection.
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