THE NEGLECT OF POST-DIVORCE IDDAH ALLOWANCE
(A COMPARATIVE STUDY OF INDONESIA’S POSITIVE LAW AND
MALAYSIA’S ISLAMIC FAMILY LAW ACT 1984)
Undergraduate Thesis
Submitted for partial fulfillment of requirements
for the Degree of Shari’ah (S.Sy)
By :
DEWI SARAH
NIM : 1111047000010
DEPARTMENT OF INTERNATIONAL COMPARATIVE SCHOOLS OF FIQH
FACULTY OF SHARIAH AND LAW
STATE ISLAMIC UNIVERSITY SYARIF HIDAYATULLAH
JAKARTA
1437 H / 2016 M
ABSTRAK
Dewi Sarah. NIM 1111047000010. PENGABAIAN PEMBERIAN NAFKAH IDDAH PASCA PERCERAIAN (STUDI KOMPARATIF : HUKUM POSITIF INDONESIA DAN ISLAMIC FAMILY LAW ACT 1984 MALAYSIA)”. Konsenterasi Perbandingan Mazhab Fiqih Khusus Internasional, Fakultas Syariah dan Hukum, Universitas Islam Negeri Syarif Hidayatullah Jakarta, 1437 H / 2016 M. ix + 96 page + 6 page attachment. Skripsi ini bertujuan untuk mengetahui peraturan pemberian nafkah iddah setelah perceraian di Indonesia dan Malaysia. Dalam penerapan aturan pemberian nafkah iddah ini di Indonesia dan Malaysia memiliki persamaan dan perbedaan. Dalam beberapa aspek terdapat kesamaan, seperti halnya landasan hukum, pelaksanaan aturan dan lain-lain. Namun di Malaysia terdapat perbedaan yang cukup terlihat, yaitu dalam hal pemberian sanksi bagi mantan suami yang tidak menjalankan putusan pengadilan untuk memberikan nafkah selama masa iddah bagi mantan isterinya. Sedangkan di Indonesia suami memiliki kewajiban untuk melakukannya namun tidak ada sanksi bagi yang melakukan pelanggaran. Pelitian ini menggunakan metode penelitian analisis deskriptif komparatif, dengan metode pengumpulan data dengan menggunakan jenis penelitian library research yakni mencari data-data dari referensi berupa buku- buku hukum islam maupun hukum positif, artikel, jurnal, dokumen-dokumen lain dari perpustakaan, koran, internet, dan lain sebagainya. Dan sebagai tambahannya, wawancara pribadi dengan pihak kedutaan besar Malaysia untuk memastikan kebenaran data dan referensi mengenai negara tersebut.
Hasil penelitian menunjukan bahwa penerapan sanksi bagi suami yang mengabaikan kewajibannya untuk memberikan nafkah iddah yang berlaku di Malaysia merupakan salah satu upaya menjamin hak isteri setelah perceraian. Selain itu kebijakan ini juga didukung dengan dibentuknya sebuah unit pengawas yakni BSK (Bahagian Sokongan Keluarga) yang bertugas untuk memastikan kepentingan golongan yang berhak menerima nafkah melalui perintah nafkah yang dikeluarkan oleh pengadilan. Sedangkan Indonesia yang tidak memberlakukan sistem sanksi untuk perkara ini. Indonesia menerapkan hukum yang lebih fleksibel dan bersifat hanya memberikan saran kedua belah pihak untuk berdamai. Meskipun hakim dapat memerintahkan bahkan mengeksekusi perkara ini, namun sejauh ini banyak isteri yang pasrah dan tidak melanjutkan kasus tersebut. Kata kunci : Undang-Undang Perkawinan, Indonesia, Malaysia, Sanksi, Nafkah, Iddah. Pembimbing : Drs. H. Ahmad Yani, M. Ag.
Ummi Kultsum, M.Pd. Daftar Pustaka : 1974 - 2015
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ABSTRACT
DEWI SARAH. NIM 1111047000010. THE NEGLECT OF POST- DIVORCE IDDAH ALLOWANCE (A COMPARATIVE STUDY OF INDONESIA’S POSITIVE LAW AND MALAYSIA’S ISLAMIC FAMILY LAW ACT 1984). Department of International Comparative Schools of Fiqh, Faculty of Shariah and Law, State Islamic University Syarif Hidayatullah Jakarta, 1437 H / 2016 M. ix + 96 page + 6 page attachment. The purpose of this mini thesis is to know the rules of giving iddah allowance post-divorce, especially in Indonesia and Malaysia. In application of the rules of providing iddah allowance in Indonesia and Malaysia, both countries have similarities and differences. In various aspects, there are similarities in the application of the law as well as the legal basis, implementation and etc. However, in Malaysia there is a significant difference i.e. in giving sanction for former husband who does not fulfill his obligation to provide iddah allowance during her waiting period. Meanwhile, in Indonesia the husband has the obligation to do it but there is no sanction for who did violation. Data collection of this research used library research and used desciptive comparative analysis. It is reference from book of Islamic law and positive law, article, local and interntional journal, and other document from library, news paper, internet, etc. As addition, interview with Religious Division of Malaysian Embassy for Indonesia to seattle the validity of data and reference about Malaysian. The result of the research showed that enforcement sanction Neglected of Iddah Allowance after Divorce that applicable in Malaysia was one of effort to ensure woman’s due to after divorce. Furthermore, this policy was supported by the establishment of a monitoring unit that called BSK (Bahagian Sokongan Keluarga) or Family Support Division. The duties to ensure the right of divorced wife to receive iddah allowance ordered issued by the court. Meanwhile Indonesia that enforce the law more flexible and merely suggested and reconcile the both parties. Although the court may order to execute this case, but so far many wives are resigned and did not continue the case.
Keyword : Marital Law, Indonesia, Malaysia, Sanction, Allowance, Iddah.
Supervisor : Drs. H. Ahmad Yani, M. Ag. Ummi Kultsum, M.Pd. Bibliografi : 1974 - 2015
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ACKNOWLEDGMENT
In the name of Allah, the Beneficent, the Merciful
All praises be to Allah, the Lord of the Universe, for saving the writer from embezzling sins and mistake. For blessing the strength and guidance to the wtriter so this undergraduate thesis can be finished well. May God constantly bless peace upon Muhammad, our dear prophet, for saving us from darkness to the light for all mankind.
Many people have assisted me in writing this thesis. Therefore, I would like to deliver my sincerest gratiude to her dearest parents Mubasir and Tuti Murdiyaningsih, and her brothers Rahmat Aditia W.P. and Dimas Bagus S. and also to her sister Dewi Amelia, for their supports, understandings, and contributions.
I also wants to consign her honoreble gratitude to Mr. Drs. H. Ahmad Yani, M. Ag, And Ms. Ummi Kultsum, M. Pd, as the supervisor for their time, thorough guidance, patience, kindness, and all contributions in advising me for finishing this undergraduate thesis.
I would like to utter thanks and appreciation to:
1. Dr. Asep Saepudin Jahar, MA, the Dean of Faculty of Syariah and Law. 2. Fahmi Muhammad Ahmadi, M. Si, the Head of Comparative Schools of Islamic Law Department. 3. Hj. Siti Hana, Lc. M.Ag, the Secretary of Comparative Schools of Islamic Law Department. 4. Dr. H. A. Muhaimin Zen, M.Ag, the Tahfiz Advisor who guided me patiently. 5. The lectures and the staffs of Faculty Syariah and Law. 6. Librarians of the Library of the faculty Shariah and Law of UIN Syarif Hidayatullah Jakarta.
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7. All of my classmates in International Study Program of Comparative Schools of Fiqh; Farrah Nabilah, Rofiqoh Laila, Hayatun Nufus, Debby Amalia, Alfian Muhammady, Abdul Gopur, Momon Satria, Abunidal Alkahfi. Muhammad Kurniawan. 8. My beloved frieds, miss Ulya that always helps me write in English, Dian, Mila, Nana, Nabil, Dina, Dirga and all friends who give motivation to finish this undergraduate thesis.
Finally, I hopes this thesis will be useful especially for me and those who are intrested in it. May Allah bless us. Amin.
Jakarta, June, 2016
The Writer
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TABLE OF CONTENT
COVER TITLE ...... i
APPROVEMENT ...... ii
LEGALIZATION ...... iii
ABSTRAK ...... iv
ABSTRACT ...... v
ACKNOWLEDGMENT ...... vi
TABLE OF CONTENT ...... viii
CHAPTER I : INTRODUCTION
A. Background of Study ...... 1 B. Problem Identification and Research Question ...... 7 C. Goal of Study ...... 7 D. Impact of Study ...... 8 E. Research Methodology ...... 8 F. Systematics of Writing ...... 10
CHAPTER II : THEORETICAL FRAMEWORK
A. Divorce ...... 12 B. Kind of Talaq ...... 15 C. Waiting Period after Divorce (Iddah) ...... 17 D. Woman Rights In Iddah ...... 21 E. Neglected of Iddah Allowance by Husband ...... 33
CHAPTER III : GIVING IDDAH ALLOWANCE IN INDONESIA AND MALAYSIA
A. Allowance of Iddah in Constitution of Indonesia
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1. The Brief History of Indonesian Marital Law ...... 36 2. The Regulation of iddah Allowance in Indonesia ...... 50 B. Allowance of Iddah in Constitution of Malaysia 1. The Brief History of Islamic Family Law Act 1984 ...... 52 2. The Regulation of iddah Allowance in Malaysia ...... 60
CHAPTER IV : COMPARATIVE ANALYSIS OF GIVING IDDAH ALLOWANCE RULES IN INDONESIA AND MALAYSIA
A. The Execution of Iddah Allowance in Indonesia and Malaysia ...... 65
B. The Analysis punishment of neglected iddah Allowance ....72 CHAPTER V : CONCLUSION AND SUGGESTION A. Conclusion...... 90 B. Suggestion ...... 92
BIBLIOGRAPHY ...... 93
APPENDICES ...... 96
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CHAPTER I
INTRODUCTION
A. Background of Study
Marriage covenant in Islamic law is not only a civil case but also a holy bond (mitsaqan ghaliza) that has relation to faith to Allah Almighty. Therefore, marriage must be maintained well, so it can stand everlasting and reach the purpose, that is love and care (mawwadah and wa rahmah).1
Every spouse must dream about a harmonious life in a household as idealized by marriage purpose. However, life goes to unpredictably. Different direction, in some case the purpose of marriage is not reached that brings marriage to a divorce.
Actually, divorce is normal, because the basic meaning of marriage (aqad nikah) is a contract.2 Therefore, the consequence it can be ended. Sayyid Sabiq stated that talaq is an effort to discharge the marriage relation and then ended it.3
According to Marital Law in Indonesia, the divorce can be enforced with certain process in court session and with clear reasons.4
Although marriage is a holy relation, yet it cannot be considered absolute.
Marriage in Islam is not regarded a sacrament as like in the other religions. It must
1 Amiur Nuruddin dan Azhari Akmal Tarigan, Hukum Perdata Islam di Indonesia, (Jakarta : Prenada Media, 2004) page 206. 2 Ahmad Kuzari, Perkawinan Sebagai Sebuah Perikatan, (Jakarta : Rajawali Pers,1995). 3 Sayyid Sabiq, Fiqh al-Sunnah, Juz II, (Beirut : Darl al-Fikr, 1983). 4 Marital Law 1947 in article 38 and Islamic Law Compilation article 117.
1 2
be regarded something natural, that can stand happily until death do it apart or ended whenever.5
In the Hadith, the Holy Prophet (peace be upon him) explained that talaq is :
أَﺑْﻐَﺾُ اﻟْﺤَﻼَلِ إِﻟَﻰ اﻟﻠَّﮫِ ﺗَﻌَﺎﻟَﻰ اﻟﻄَّﻼَقُ
“Something is halal (allowed) but hated by Allah is talaq” (HR. Abu Dawud, Ibnu
Majah, al-Baiahqi, al-Hakim and number of teller from Abdullah bin Umar).6
Allah determine talaq as the last solution for family conflict when there are no other ways to solve it. However, It is hated because the consequences are bad for widows and widowers especially for their children.7 Although it is hated by Allah, still many spouses chose divorce as the last resort to resolve their relationship problem.
Therefore, if divorce occurs between a husband and a wife there would be legal consequences that must be noticed by the parties.8
One of the legal consequences of divorce is that the wife through waiting time that is called ‘‘iddah period.9 Islamic Law Compilation explains that the legal consequence of divorce is that the former husband is obliged to give living allowance (nafkah), home (maskan) and clothes (kiswah) to his former wife
5 Asghar Ali Engineer, The Right of Women In Islam, (Yogyakarta, Yayasan Bentang Budaya, 1994), page 169. 6 HR. Abu Daud, kitab “an-Nikah” chapter “Karahiyah ath-talaq”, Ibnu Majah, kitab “ath-thalaq” chapter “Haddatsana Suwaid bin Sa’id” jilid I, page 650. 7 Mohammad Daud Ali, Hukum Islam Dan Peradilan Agama, (Jakarta : PT. Raja Grafindo Persada, Jakarta 2002), page 49. 8 Ahmad Rofik, Hukum Islam di Indonesia (Jakarta: Raja Grafindo Persada, 2006), page282. 9 Marital Law article 11 verse (1). 3
during ‘‘iddah period, except she is in talaq ba’in or in pregnancy period.” 10
Furthermore, according to Marital Law, the court can decide the obligation that he must do.
Actually, the obligation of ‘iddah in Islamic law has been known since jahiliyyah period. After Islam came, ‘iddah has not been removed because there is goodness (maslahah) in it.11
‘Iddah means waiting time for a divorced women before she remarry to another man. The purpose of ‘iddah to know condition of her womb, so if she is pregnant, the husband can consider about reconciliation. Scholars agree about
‘iddah obligation as it is mentioned in the surah Al-Baqarah : 228
وَاﻟْﻤُﻄَﻠﱠﻘَﺎتُ ﯾَﺘَﺮَﺑﱠﺼْﻦَ ﺑِﺄَﻧْﻔُﺴِﮭِﻦﱠ ﺛَﻠَﺎﺛَﺔَ ﻗُﺮُوءٍ ۚ وَﻟَﺎ ﯾَﺤِﻞﱡ ﻟَﮭُﻦﱠ أَنْ ﯾَﻜْﺘُﻤْﻦَ ﻣَﺎ ﺧَﻠَﻖَ اﻟﻠﱠﮫُ ﻓِﻲ أَرْﺣَﺎﻣِﮭِﻦﱠ
إِنْ ﻛُﻦﱠ ﯾُﺆْﻣِﻦﱠ ﺑِﺎﻟﻠﱠﮫِ وَاﻟْﯿَﻮْمِ اﻟْﺂﺧِﺮِ
Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah and the Last Day. 12
Indonesian Marital Law article 11 refers to goverment rules number 9 year
1975 article 39 verse (1) and article 153 of Indonesian Islamic Law Compilation regulate that ‘iddah period is as long three quru’ (time after menstruation) or at least 90 (ninety) days.
10 Islamic Law Compilation article 149 verse (b). 11 Ali Yusuf As-Subki, Fiqh Keluarga, (Jakarta : Amzah, 2010), page 349. 12 Al-Baqarah: 228, see for translation in Abdullah Yusuf Ali, the Holy Qur’an, (Kuala Lumpur: Saba Islamic Media, 1999). 4
‘Iddah period is was given talaq raj’i by her husband. Talaq raj’i is the first and the second talaq, the husband can make reconciliation (rujuk) to his wife before ‘iddah period ends without bride price (mahar) and new aqad.13
The law status as wife is not lost in this kind of talaq. Therefore, he still has obligation to give living allowance to his wife. Moreover, they must mutually inherit are to the other if one of them died in ‘iddah period.
Fiqh scholars agree that woman who had been divorced by talaq raj’i has right to recieve ‘iddah allowance. Abu Hanifah stated that “allowance and comfort is for wife whose divorced by talaq raj’i, because she is burdened with
‘iddah in her household. She is restricted by the rights of her husband. Therefore, she has right to recieve her living allowance. This allowance is legally considered as debt since talaq, and ended with sincerely and without the judge verdict. The debt does not disappear except with fulfill or released by her wife.”14
However, often the husbands ignore their responsibilities to fulfill their obligations after divorce, in fact it still found husbands who are unwilling to give
‘iddah allowance in divorce cases in Indonesia. Moreover, there is no written sanction for husband who does not give ‘iddah allowance to his former wife.
While the wife does not recieve her right that is appropriate with the rules.
‘Iddah period is a difficult time for a woman, because she is responsible for her self and her children it depans on who takes care of children.15 It can be an obstacle for women whose right is ignored, one of them is an economic factor
13 Ali Yusuf As-Subki, Fiqh Keluarga, page 336. 14 Ali Yusuf As-Subki, Fiqh Keluarga, page 358. 15 Amiur Nuruddin dan Azhari Akmal Tarigan, Hukum Perdata Islam di Indonesia, page 258. 5
where they can fall on criminality only to fulfill her economic needs. Increasing criminality involving women such as prostitution, drugs dealer, and other criminal crimes might be caused by the ignored right of woman. Hence, religious court should observe and give protection to divorced women.
Rules of marriage in Malaysia also adopted Islamic law as element and materials to enact marital law in Malaysia. As a country that cognate with our country, there are similarities in one hand, i.e. a country with the largest Muslim majority, has Malay indigenous,race and they also use Islamic law that is derived from the Qur'an and Hadith in the application of the law in each state.
The next similarities for both countries are that Indonesia and Malaysia have a fairly high divorce rate. It can be seen from amount of divorce cases that had accumulated in the religious court in each state. Type of divorce that is mostly tried is the divorce by talaq. Even in some of the Malaysian states, talaq case have reached 90% of all cases in the religious courts.16
Malaysia also has marrital law for Muslim citizen, that is Islamic Family
Law Act 1984. This law contain rules on marriage, divorce, reconciliation (rujuk), living allowance for wife and children, guardianship, until sanction breaking the rules.17
They also have religious court that is called Mahkamah Syariah. Religious court is Indonesia and Malaysia are similar. Their authorities are the same i.e
16 Raihanah Abdullah, Wanita dan Perundang Islam,(Kuala Lumpur : Ilmiah Publishers, 2001), page 97. 17 Dedi Supriyadi, Perbandingan Hukum Perkawinan Islam, (Bandung : Pustaka Al- Fikriis, 2009). 6
islamic family law and islamic civil cases and they also regulate about ‘iddah allowance.
‘Iddah allowance in Indonesia is often ignored by husband because of many reasons and there is no written firm sanction. On the contrary, mahkamah syariah has the authority to give punishment even firm sanction for the husband who does not give ‘iddah allowance as judge ordered.18
In contrast, according to marital law of Malaysia (Islamic Family Law Act
1984) there is sanction if the husband ignores judge’s order to give ‘iddah allowance. The sanction can take physical punishment or imprisonment as long one month until one year.19
The goal of this rule to regulate sanction for the husband who ignores to give ‘iddah allowance is the goverment effort to protect womans rights who was divorced. As an effort to minimize the rate of husbands ignoring this obligation and also to reach goodness (maslahah).
Based on the explanation above, the writer will analyze and criticize the comparative study about Marital Law on both country by doing the research and writting the undergraduate thesis under the title: “The Neglect of Post-Divorce
‘Iddah Allowance (A Comparative Study of Indonesia’s Positive Law and
Malaysia’s Islamic Family Law Act 1984)”
18 Islamic Family Law Act 1984 section 66 – 67. 19 Islamic Family Law Act 1984 section 132. 7
B. Problem Identification And Research Question
1. Problem Identification
a. This undergraduate thesis will describe urgency of ‘iddah allowance
from women rights perspective. Especially the rights that must be
accepted by wife in ‘iddah period.
b. This undergraduate thesis limited to the study comparative law between
Positive Law in Indonesia and Malaysia (Marital Law Number 1 of 1974,
Islamic Law Compilation and Islamic Family Law Act 1984).
2. Research Question
Based on the background of study above, the problems which will be
researched is limited as below:
a. How the rules of the ‘iddah allowance applicable in Indonesia and
Malaysia?
b. Can the religious court in Indonesia and Malaysia execute who ignore
‘iddah allowance?
C. Goal of Study
a. To know enforceability the rule of ‘iddah allowance in Indonesia and
Malaysia.
b. To know how the rule protects women's right in ‘iddah period in
Indonesia and Malaysia.
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D. Impact of Study
In this study, the writer would like to divide the usage of study into two
parts, they are:
a. The theoretical usage: to develop the study of Islamic family law, especially
in protecting women right, as the university literature.
b. The practical usage: to be the contribution of resentful though to understand the
concept of ‘iddah allowance. And as the contribution for the institute and as the
partial fulfillment of requirements for degree in Faculty of Shariag and Law,
Department of International Comparative Schools of Fiqh.
E. Research Methodology
This study is literature study, which uses the comparative approach analysis. The writer will analyze the comparative rules the neglect of ‘iddah allowance in Indonesia and Malaysia, then the writer will use some approaches methods of study to make it easier, there are:
1. Type of Research
Type of research that used in this research is library research. Searching
data from reference relating with the theme of thesis. References from books
on Islamic law and positive law, article, law and islamic law journal that
relevant with this undergraduate thesis.
2. Research approach
In this thesis, I approach to the problem with “normative method” that is
law research usely library research. Certainly it discusses about topic
researched based on Islamic law and enactment. 9
3. Research data
a. Type of Data
Type of data that is used for this research is qualitative. i.e.
research will describe and explain about the problem from data which is
obtained, thus in the end will get conclusion from the problem.
b. Methods of Data Collection
There are two methods of collecting data used in the research, they
are:
1) Primary Source, they are prime in research i.e. search data from
Marital Law No. 1 of 1974, Islamic Law Compilation, and Islamic
Family Law Act 1984 (‘iddah allowance rules in Indonesia and
Malaysia).
2) Secondary Source, they are data that giving the explanation and
strengthen prime data i.e. serach data from literature, documents,
enactment, journal, article, and others in library, news paper,
internet, etc that relevant source with this thesis.
4. Data Analysis Method
Analyzing and processing data method is using descriptive analysis
method by describing, interpreting, and analyzing data about these
enactments‘iddah allowance in Indonesia and Malaysia. Must are completed
with findings from literature or the other documents that discuss this rule in
both countries.
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F. Review Previous Studies
1. Nurulhuda Binti Abdul Razak/ 2009, Nafkah Masa ‘iddah Menurut
Prespektif Fiqih dan Implementasinya dalam Enakmen Keluarga Islam
(Mahkamah Rendah Syariah Perak Malaysia). She is explained the
stats of scholars about ‘iddah allowance and how the rules in Malaysia
protect the woman right. I will research ‘iddah allowance in
Indonesian and Malaysian law and analyze the sanction of the neglect
‘iddah allowance in Malaysia.
2. Fitri Rahmiyani Annas,Unhas 2014/ Nafkah ‘iddah dan Mut’ah pada
Perkara Cerai Talak di Pengadilan Agama Makasar. She is explain
about implementation of ‘iddah allowance and mut’ah in Makassar
religious court. How many wives does not recieve their rights. She said
that will be better if in Indonesian law there is punishment for the
violator. I agree with her opinion, I will researchs sanction of neglect
‘iddah allowance, to reach goodness and to protect the woman right
with analyze the rules in Indonesia and Malaysia.
G. Systematics of Writing
This undergraduate thesis is compiled according to “Pedoman Penulisan
Skripsi Fakultas Syariah dan Hukum Tahun 2012” with the systematic
divided into five chapters. Every chapter consist of, they are based on the
discussion and materials of the research, they are: 11
Chapter One About introduction, background of study, problem
identification, research question, goal, impact of study,
research methodology, and systematics of writing.
Chapter Two General description of divorce, ‘iddah in islamic law,
women right in ‘iddah period.
Chapter Three History of Marital Law number 1 of 1974, Indonesia’s
Islamic Law Compilation and Malaysia’s Islamic Family
Law Act 1984
Chapter Four Description about ‘iddah allowance in both law and the
enforceability in both countries.
Chapter Five Conclusion and Suggestion CAPTURE II
THEORETICAL FRAMEWORK
A. Divorce
The purpose of marriage is to create a long-lasting happy family (sakinah), but the history shows that not every marriage goes as what its purpose. In fiqh munakahat literature, it is known as ‘inhilal az-zawaj’ which is the meaning of a marriage conclusion (ending). Inhilal az-zawaj can be applied on husband’s willingness through talaq declaration that he has. However, it also might apply based on judge’s decision (hukm al-hakim/al-aqdhi) through talaq or divorce in court.1
Inhilal az-zawaj, commonly called al-furqah, means a separation or a conflict (al-iftiraq). In fuqaha viewpoint, al-furqah is formulated by : “The disengagement of marriage bond and a separation of relation between husband- wife caused by one of many causes.2 Generally, furqah is divided into two kinds, i.e. firqah fasakh (a separation because of marriage cancelation) and firqah thalaq
(a separation because of talaq declaration).
The root of thalaq is al-itlaq which means releasing or leaving.
Meanwhile, in Islamic syariat, talaq means disengage of marriage bond or ended it. Talaq is the all-kind of divorce which either burdened by the husband, and will
1 Muhammad Amin Summa, Hukum Keluarga Islam di Dunia Islam, page 101. 2 Wahbah al-Zuhayli, al-fiqh al-islami wa-adilatuhu, page 3447.
12 13
be settled by judge, or caused by the decease of husband or wife. 3 Although divorce is allowed, but Islam insists to maintain marriage as Ibnu Umar said,
Prophet said:
أَﺑْﻐَﺾُ اﻟْﺤَﻼَلِ إِﻟَﻰ اﻟﻠَّﮫِ ﺗَﻌَﺎﻟَﻰ اﻟﻄَّﻼَقُ
“Something is halal (allowed) but hated by Allah is talaq” (HR. Abu Dawud, Ibnu
Majah, al-Baihaqi, al-Hakim and number of teller from Abdullah bin Umar).4
According to Sayyid Sabiq, Islam has given talaq to men as their right because they have an ambition to maintain their expensive marriage. Therefore, they will pay as much as their expensive marriage if they got divorce. They also have responsibility to make living and talaq gift to their former wife.
Among fiqh scholars there are some views about talaq. Talaq is forbidden except followed by syariah reasons. Two of them are Hanafi and Hambali. Their foundation is the Prophet’s utterance :
ﻟﻌﻦ اﷲ ﻛﻞ ذواق، ﻣﻄﻼق
“Allah curses every man that likes having woman and like divorcing (her wife)”
(HR. As-Sakhrawi)
Divorce is a part of refusing Allah’s grace because marriage is one of
Allah’s graces. Arguing of Allah’s grace is forbidden. Therefore, divorce is forbidden except for emergency condition.5
3 Sayyid Sabiq, Fikih Sunnah, Jilid 6, (Bandung : PT. Al-Ma’arif, 1987), page 59. 4 HR. Abu Daud, kitab “an-Nikah”chapter “Karahiyah ath-talaq”, Ibnu Majah, kitab “ath-thalaq” chapter “Haddatsana Suwaid bin Sa’id” jilid I, page 650. 14
According to Hambali, the verdict of talaq can be a mandatory, haram
(forbidden), halal, mubah and sunnah. The obligation talaq is a talaq which given by two hakams (mediators) because the conflict and the discord occurred between husband and wife. That will be the time when hakam evaluates that divorce is the last way to solve the conflict between them.
In addition, talaq haram is talaq without a distinct reason. Talaq is forbidden because it will harm one of them and there is no advantage on it. This talaq can destroy the marriage, which actually the marriage consist of goodness and insisted by Islam.
Talaq mubah is talaq with syaria reasons. Wife did a reprehensible behavior and showed bad attitude. In addition, she has been reminded but she did not attend to. Talaq sunnah is talaq for wife because she neglects her responsibility to Allah. She declined to enforcing her pray or other responsibilities. Meanwhile, the husband does not have capability to force her to do so, or when she does not have shame any longer. As his reason he says, “it is not worthy maintaining wife that is refuse fulfill her responsibilities to Allah.”
According asy-syifa book, Ibnu Sina states that the possibility of divorce should be opened and may not be closed at all. The reason is that it can cause damage. One of the spouses, for instance, can not give affection. If they still live together, their condition will get worse. Their lives will be fall apart. Therefore, chance of divorce is still given, but it is under control and followed by the rules.
5 Sayyid Sabiq, Fikih Sunnah Jilid 4, (Cakrawala Publishing, Jakarta : 2009), page 4. 15
B. Kind of Talaq
Talaq does not occur immediately, it take place into three phases. The first and second talaq is called talaq raj’I, while the other phase is the third talaq, called talaq ba’in. Furthermore, talaq ba’in is divided into two kinds, ba’in shughra (revocable divorce) and ba’in kubro (irrevocable divorce).
1. Talaq Raj’i
Talaq raj’i is talaq from husband to wife after sexual intercourse, in the real meaning, without give wealth and being preceded by any talaq before. 6 Talaq which has given once or twice is allowed to reconcile. The reconciliation must have taken before ‘iddah period is over. It is based on surah Al-Baqarah: 229
.
“A divorce is only permissible twice: after that, the parties should either hold together on equitable term, or separate with kindness.”
In one hadith stated to Umar, Prophet said,
ﻣﺮه ﻓﻠﯿﺮاﺟﻌﮭﺎ
“Order him (Ibnu Umar) to take her wife back” (HR. Bukhari and Muslim).
2. Talaq Ba’in
6 Sayyid Sabiq, Fikih Sunnah Jilid 4, page 46. 16
Meanwhile, talaq ba’in or third talaq is making wife separated permanently. This talaq is forbidden for both to reconcile except she is married other people and having sexual intercourse.
Ibnu Rusyd states that, “The scholars agreed that talaq ba’in only happened to divorced wife before sexual intercourse, the third talaq and talaq with paying compensation from wife to husband for khulu’ she wanted.7
Furthermore, talaq ba’in is divided into two, ba’in shughra and ba’in kubra. Talaq bain shughra is damaging the marriage bond between husband and wife immediately after talaq being announced. Hence, a divorced wife becomes
‘outor’ for her husband (spouses status is damaged). Therefore, she cannot have a relationship nor inherit if one of them passes away before ‘iddah period is over.
Husband who gives this talaq to his wife still have a chance to reconcile, but he must renewal his akad and marriage dowry. Besides that, she also have not married yet.
On the other hand, talaq ba’in kubra has the same rule as talaq ba’in shughra, both may detach their marriage bond. However, the effect of talaq ba’in kubra is not allowing the former husband to marry his former wife except she is married with other man and has a relationship. The wedding is also not intended to reconcile with the former husband (nikah tahlil). Allah has decreed in surah Al-
Baqarah: 230
7 Ibnu Rusyd, Bidayah al-Mujtahid, Jilid II, page 60. 17
“So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and she has divorced him. In that case there is no blame on either of them if they re-unit, if they feel that they can keep the limits which ordained by Allah. Those are the limits which ordained by
Allah, which He made it clear to those who understand.”
Herewith, Allah has determined talaq rules so that the umat are not fallen into a failure. However, talaq becomes a solution for unsolved household problem with the rule in His decree to achieve any benefits for Moslem for and as a sign of
Allah’s almighty which rahmatan lil alamin.
C. Waiting Period after Divorce (‘iddah)
‘Iddah is taken from al-‘add and al-ihsha’ which means the days and menstruation period that counted by women. According to the terminology,
‘iddah is a period in which women are forbidden to have a marriage after her 18
husband decease or she divorced before.8 ‘iddah may applied based on fetus birth or quru’ waiting period (based on the counted-month).
Basically, ‘iddah has been recognized since jahiliyah era. At that time, they almost never left the tradition. ‘Iddah was still defended and acknowledged as one of shariah doctrine which contain many advantages when Islam come.
The scholars agreed that ‘iddah is an obligation. It is based on Allah’s decree in surah Al-Baqarah: 228
“Divorced women shall wait concerning themselves for three months period. Not allowed for them to hide what Allah has created in their wombs, if they have faith in Allah and the Jugdement Day.”
Prophet says to Fatimah binti Qais,
اﻋﺘﺪي ﻓﻰ ﺑﯿﺖ ام ﻣﻜﺘﻮم
“Undergo your ‘iddah period in Ummu Maktum’s house”
Kinds of ‘iddah, they are:
8 Sayyid Sabiq, Fikih Sunnah Jilid 4,page 118. 19
1. ‘Iddah for a pregnant woman. The applied term is for the divorced
women either died or divorce living. It is based on surah At-Thalaq: 4
“...for those who carry (life within their wombs), their period is until they
deliver their burdens...”
2. ‘Iddah because of the demised husband is four months and ten days. It is
based on surah Al-Baqarah 234
“If any of you die and leave widows behind, they shall wait concerning
themselves four months and ten days...”
3. ‘Iddah for istihadhah woman, if she has the routine days of menstruation
period, she must notice her menstruation period and her holy period (the
period in which she is not in menstruation). If she had menstruation three
times, it meant her ‘iddah is over. If she has not gotten menstruation any
longer, her ‘iddah is three months-ten days.9
9 Sayyid Sabiq, Fikih Sunnah Jilid 4, page 128. 20
4. ‘Iddah for a menstruation woman, if the wife has sexual intercourse and
still get her menstruation, her ‘iddah is three quru’. It is based on surah
al-Baqarah: 228
“Divorced women shall wait concerning themselves for three months
period.”
The word ‘al-quru’’ is plural form of qar’u, means menstruation. Ibnu
Qayyim strengthened this view while saying “Al-quru is only used in Islam, which mean menstruation.” Therefore, a deep comprehension to this term in that verse with following a customary meaning in Islam is more important, even it is an obligation.
Generally, mufassir (Al-Quran interpreter) stated that the verse contains a prohibition of hiding menstruation and pregnancy. Basically, embryo in the womb exists during a menstruation period. This statement is agreed by the salaf and khalaf scholars.
A woman who is in ‘iddah period should stay in her husband’s house until it is finished. She is forbidden to leave the house or her husband is forbidden to ask her to leave the house. If talaq has been given and the wife is not in her husband’s house, a divorced wife must come back there when she knows. As
Allah’s decree in surah at-Thalaq: 1 21
“O Prophet! When you do divorce your women, divorce them (facing) at their prescribed periods, and count it (accurately), their prescribed periods: And fear
Allah your Lord: and don’t let them out of their houses, nor (allow) them leave, except in case they are guilty of doing some open vicious behaviors, those are the laws set by Allah: and any who transgresses of Allah’s laws, that they did cruel thing to themselves. You might not know perhaps Allah is about to conduct some new clauses thereafter.
D. Woman Rights In ‘iddah
Based on the definition above, there are some rights which it must be
accepted by a divorced woman. Herewith, it will be explained based on the
scholar’s views and the law views. 22
1. The Scholars Views
Etymologically, nafkah (living) is from root ‘nafaqah’ meaning ‘cost’. The
word means cost of living. Ahmad Warson Munawwir in Al-Munawir Arabic-
Indonesian dictionary the meaning of the word is living cost, expense, and
outcome, spent.10 Terminologically, the subsistence is a husband duty to give
his occupation salary to himself, wife and his children.11
The subsistence itself here is all the primary needs and necessities which
suit to the condition and place, such as food, clothes, house and others.
Subsistence is mandatory for husband to his wife. In this case the scholars have
the same idea. Even Allah obligates this through surah at-Thalaq: 7.12
“Let the man who has vastness in spending his living allowance according to
his capability, and the man who his income is limited, let him spend according
to what Allah has given to him. Allah puts no burden on any person beyond
what He has given to him. After a difficulty, Allah will soon grant relief”
10 Ahmad Warson Munawir, al-Munawir Kamus Arab Indonesia, (Yogyakarta : Pustaka Progresif), page 1449. 11 Ash-Shabuni, Hidayyatul Afraa lil’ Aruusain, Hadiah untuk pengantin, (Jakarta : Mustaqim), page 229. 12 Syaikh Hasan Ayyub, Fikih Keluarga, (Pustaka Al-Kautsar), page 38. 23
Also in surah an-Nisa: 5
“...but feed and clothe them therewith (from the substance), and speak to them
words of kindness and justice.”
As well as Prophet’s hadith
ﺇﻥ ﺃﺑﺎ ﺳﻔﻴﺎﻥ ﺭﺟﻞ ﺷﺤﻴﺢ ﻭ ﻟﻴﺲ ﻳﻌﻄﻴﲏ ﻣﺎ ﻳﻜﻔﻴﲏ ﻭﻭﻟﺪﻱ ﺍﻻ ﻣﺎ ﺍﺧﺬﺕ ﻣﻨﻪ ﻭﻫﻮ ﻻ ﻳﻌﻠﻢ (ﺭﻭﺍﻩ
ﺍﻟﺒﺨﺎﺭﻯ)
“O Prophet! Actually Abu Sufyan is a stingy man. He gives living that not
enough for me and my children. Except I take his money by myself without his
knowledge.” Then He said,
ﺧُﺬِي ﻣَﺎ ﯾَﻜْﻔِﯿْﻚِ وَ وَﻟَﺪَكِ ﺑِﺎﻟْﻤَﻌْﺮُوْفِ
“Take his money until it can suffice for you and your children in a good
way.”(muttafaq alaih) 13
Based on hadith above, Prophet has ever allowed Hindun binti Utbah to
take her husband property to fulfill her and her children needs properly.
13 Hadith number 1623 see M. Nashiruddin Al-Albani, Ringkasan Shahih Bukhari, (Jakarta : Gema Insani), Jilid 3, page 846. 24
Besides, from Nafi’ from Ibnu Umar, Umar bin Khattab sent a letter to the
commandant about people who neglected their wives. Umar ordered
commandant to instruct the soldier in order to give them their living cost or
divorce them. If they divorce their wives, they must give the living during they
restrain their wives. This is based on the narration from Imam Syafi’i.
Thus, the obligation of giving the subsistence is not only when she became
his wife but also when she got divorced. Nursing the child and mother’s
prosperity are husband responsibilities. A separation may not lessen proper
living for mother and children. 14 In surah at-Thalaq: 6
“Let the women live (in ‘iddah) in the same style as you live, according to your
capability: Don’t distress as you restrain them. And if they carry (life in their
wombs), then spend (your substance) on them until they’re having birth their
child...”
14 A. Rahman I Doi, Penjelasan Lengkap Hukum Allah (Syariah), (Jakarta : PT. Raja Grafindo), page 270. 25
The verse explains that divorced woman either raj’i or ba’in should get
maintenance and residence. Imam Nawawi stated that there was no different
view among the scholars that divorced raj’i woman gets the living cost and a
home. However, the scholars have different view in ‘iddah of talaq ba’in.
Imam Ahmad stated that a woman get talaq ba’in will not get the
maintanance and a home. Ibnu Abbas, al-Hasan, Atha’ bin Abi Ribah and Asy-
Sya’bani conveyed this matter earlier. This view also explained by Ahmad and
Ishak. As hadith Fatimah binti Qais stated that she has divorced three times by
her husband, and then Prophet said to her;
ﻟﯿﺲ ﻟﻚ ﻋﻠﯿﮫ ﻧﻔﻘﺔ
“You do not have right of living from him (her husband)” (HR. Muslim)
Based on that hadith, Imam Syafi’i and Malik conveyed she has a right to
get home and not to get the living except she was pregnant. Imam Malik stated
that he ever hears Ibnu Syihab said, ‘A women who get three talaq may not
leave the house before her ‘iddah period is finished. She does not have the
right to get the living. However, if she is pregnant, she would get the living
until the infant was born.15
Abu Hanifah argued that she would get subsistence and residence, 16 as
woman who get talaq raj’i because she must stay at her husband house. It is
similarly as she was restrained, so she will stay with her husband. Therefore,
15 The group who was agree with this states is az-Zuhri, Malik, Laits bin Sa’ad, al-Auza’I, Ibnu abi Laila dan Syafi’i. 16 Sayyid Sabiq, Fiqh al-Sunnah, (Dar al-Kitab al-Islami), page 258. 26
she will get the living cost. The living is being considered as a debt and
counted since talaq is conveyed. The obligation of giving nafkah will not
loosen just because of wife’s agreement either the court verdict. Husband is
considered free from his debt when he has fulfilled his obligation or when the
wife states it is free. 17
Related to the residence, Allah decrees in surah At-Thalaq: 1
“...and don’t let them out of their houses, nor (allow) them leave, except in
case they are guilty of doing some open vicious behaviors...”
It is also attached in surah At-Thalaq: 6
“Let the women live (in ‘iddah) in the same style as you live, according to your
capability: Don’t distress as you restrain them”
17 Narrates by Umar bin Khathab dan Abdullah bin Mas’ud. Also to be Ibrahim an- Nakha’i states. 27
Taken from al-Qasim bin Muhammad and Sulaiman bin Yasar, both of them conveyed that Yahya bin Sa’id al-Ash has separated Abdurrahman’s daughter, then Abdurrahman moved her. Then, Aisyah took her to Marwan, as a governor in Madinah. “Be devouted to Allah and send her back to her house.”
(Muttafaqun Alaih).18
There are different interpretations of Prophet’s hadith purposed to Fatimah binti Qais. One stated that no right for women to get residence based on riwayah of asy-Sya’bi from Fatimah binti Qais, from the prophet about three times-divorced woman. So, he stated, “she does not have the rights on getting home and living.” He also suggests to undergoing her ‘iddah in Amr bin
Ummu Maktum’s house, the blind man. So, she did it there.
Other view about the hadith interpretation was saying that women have the right on getting the residency, it became a majority of scholars view. The controversy among them is about Fatimah’s moving. As recounted from Urwah that Aisyah denied it while saying, “In the fact, Fatimah is in wild animals place, so environment safety is worried.” That was the reason why Prophet gives her compensation.
It is told from al-Qasim from Aisyah that he said, “The matter which occurred to Fatimah binti Qais, she should be obeyed to Allah, e.i. in her utterance. The residence and living are not applied.” (H.R. Bukhari).
18 Syaikh Hasan Ayyub, Fikih Keluarga, page 388. 28
Sa’id bin Musayyab said, “Fatimah’s moving is due to her intimacy with her husband’s kin.” As told from Amr bin Maimun bin Mahran from his father, from Sa’id bin Musayyab he said, “She fascinated many people because her utterance is full of fluency. So, she is close to her husband’s kin. Therefore,
Prophet ordered her to enforce her ‘iddah in Ibnu Maktum’s house.
Furthermore, Ibnu Abbas said, “It is embarrassing thing to say a reprehensible thing to her husband’s kin. Hence, if she has said a reprehensible thing, she has been droven from her husband’s house.” There is also an interpretation ‘al-fahisyah’ with fornication. Therefore, if she has been fornicated, she must have left it and endured the punishment. As recounted from Ibnu Mas’ud.
Aisyah’s and Ibnu Musayyab’s rejection on Fatimah binti Qais because she hid the reason of Prophet’s order to enforce her ‘iddah out of her husband house. She said that Prophet did not give her right to get living and residence, so it caused a slender, e.i. people considered that a woman who got three talaq can apply ‘iddah everywhere they want.
In the crucial condition, it is allowed for woman to move in enforcing her‘iddah, such as fear of wild animals, sink and fire. If it is being forced to do so, but only to get out of house to do other activities, in talaq raj’i, it is forbidden to do so. If she is on third talaq, she is allowed to leave the house in the day not in the evening. 29
Abu Hanifah stated, “As woman who got talaq raj’i, a woman who got three talaq may not allowed leaving the house in the morning and evening.
Meanwhile, a woman whose her husband passed away can leave the house in the day if she will.”
In addition, a woman whose her husband passed away, she does not have the right to get living whether she is pregnant or not. In this case, the scholars do not have difference. Allah decree in surah Al-Baqarah: 240.
.
“Those of you who will die and leave widows behind should make a will for their widows, a year allowance without move her out from the residence; but if they leave (by herself), there is no blame on you (for what) they do for themselves in the good things. And Allah is the almighty, the most-wise.”
Ibnu Abbas stated, “That verse has been replaced (nasakh) with a legacy verse, which is stated that they get one fourth and one eighth. The limit time, one year, has been replaced with four months-ten days. As told by Abu Dawud 30
with sanad (way) hasan. Jabir said, “A woman who her husband passed away
will not get nafkah, but only get inheritance.”
2. Law Views
The explanation about nafkah‘iddah in the positive law is almost as same
as fiqih rule, which is ruled by Positive Marital Law and Islamic Compilation
Law. Perhaps, it is caused by the characteristic of ‘iddah, normatively, as stated
in some verses in al-Qur’an.19
The term about obligation of giving allowance to former wife because of
separation in positive law has been managed in some articles:
1. Marital Law No.1 of 1974 Article 41 (c): “The court can obligate former
husband to finance living cost and or assign an obligation for former
wife.”
2. Islamic Law Compilation Article 81 Verse 1: “A husband must provide a
residence for his wife and children or former wife during ‘iddah period.”
3. Islamic Law Compilation Article 152: “Former wife deserves the right to
get allowance from her former husband, except she is nusyuz.”
4. Islamic Law Compilation Article 149 a and b: “when marriage is damaged
because of talaq, a former husband required to: a) give a proper mut’ah to
his former wife, it can be money or goods except the qobla dukhul wife. b)
give her living, maskan, and kiswah to the former wife during ‘iddah
19 Amiur Nuruddin dan Azhari Akmal Tarigan, Hukum Perdata Islam di Indonesia, (Jakarta : Prenada Media, 2004), page 258. 31
period, except the former wife has been burdened talaq ba’in or nusyuz in
pregnancy.”
Based on those requirements, the court can obligate the former husband to finance the living cost and or determine an obligation to his former wife, so that the court can control secure former wife’s rights. This rules also means to avoid the divorced wife from suffering because unable to fulfill their needs.
The matter of giving allowance is based on the requirement which applied in Indonesia, i.e. valid only for the former wife who got talaq raj’I, not for the talaq ba’in wife. It can be seen in the article 149 b. Whereas, some scholars view to allow the talaq ba’in wife to get allowance after the separation.
As mentioned before, a wife in ‘iddah period deserved the right to get the living cost, a residence (maskan), and clothes (kiswah) which become her husband responsibilities.
Islam law compilation explained about the allowance from former husband which written in article 152, i.e.: the former wife will get allowance from her former husband except she was nusyuz.
Meanwhile, the matter about the residency (maskan) laid in article 81
Islamic Law Compilation:
1. A husband must provide a residence for his wife and children or his former
wife during her ‘iddah period.
2. A residence is a proper place for a former wife as long as still in marriage
bond, or in ‘iddah talaq period or descend ‘iddah. 32
3. The residence is provided to take care of the wife and children from other
destructions, so they feel safe and secure. The other function of a residence
is a place to save wealth and properties, a place to arrange and manage the
household utilities.
4. A husband has to fulfill the residence which suited with his capability and
the environment condition, it means all of the households or other
supporting entities.
Meanwhile, an Islamic Family Law Act in Malaysia provides that the wife who has been divorced by talaq has the rights to receive living allowance and a residence during her ‘iddah period.
The rules of giving ‘iddah allowance is mentioned in article 65 verse 1 i.e.: “The right of a divorced wife to receive allowance from her former husband under any orders from the court, shall cease at the end of her‘iddah period or the wife is being nusyuz”
Afterwards, another right that should be received by a divorced wife is a residence. As mentioned in article 71, the court guaranteed the right of the divorced woman to get her right of the residence during her ‘iddah period.
“(1) A divorced woman deserves to stay in the house where she used to live when she was married, as long as her husband is not able to get other suitable accommodation for her.
(2) The rights for accommodation that provide in subsection (1) shall cease— 33
(a) if the period of ‘iddah has expired; or
(b) if the period of guardianship of the children has expired; or
(c) if the woman has remarried; or
(d) if the woman has been guilty for openly vicious (fahisyah), then the
husband may apply to the court to get the house back.
These matters also organize the demand for the wife who does not receive her
right after divorce. The demand after divorce can be an ‘iddah allowance, the
debt of bride dowry (mahar), mut’ah, and also the joint-property.
Thus, it can be known that the rule about the right she should receive,
arranged clearly and systematically either in syaria law, positive law in
Indonesia and Malaysia. If this rule is being applied well and properly, there
should be no cheated party because the allowance is addressed to create
goodness between the two-divorcing sides.
E. Neglected of ‘iddah Allowance by Husband
The giving of ‘iddah allowance has been set as a duty of the husband after he divorced his wife by way of talaq. It has been explained in a great detail by the religion law and the state law. In case of the husband omission or leaves these obligations deliberately then he should receive punishment for his action. 34
In an effort to guarantee the right for a divorced wife, the Religious Court as the holder of the authority in the family law sector provides a solution for a wife who is not given the right for her ‘iddah she may submit a petition to the
Religious Court. This matter also applies in Malaysia’s Islamic family law.
Indonesia and Malaysia Religious Court addressing the omission in giving the ‘iddah allowance that committed by a husband, they have similarities in the legal basic term but different in the implementation of giving punishment.
We can see in the Indonesia regulations that the obligation is stated clearly in the Islamic Compilation Law in article 149 point b explained that one of the consequences of a divorce husband is obliged to provide a nafkah, maskan
(home), and kiswah (clothing) for the former wife in her ‘iddah period except he has been sentenced to talaq ba'in or nusyuz and non-pregnant condition. Then, the
Islamic Compilation Law put pressure on Article 152, which written as "the former wife deserves to get ‘iddah allowance from her former husband except she nusyuz".
Similarly, the regulation in Malaysia of giving ‘iddah allowance listed in the article 65 number 1 of Islamic Family Law Actt 1984 as followed, “The right of a divorced wife to receive the allowance from her former husband under any orders from the court shall cease on the expiry of ‘‘iddah period or the wife is being nusyuz”
Furthermore, there are the opposite in terms of the implementation of punishment for those who violate these rules. In Malaysian law ie Article 132 35
verse 2 Islamic Family Law Act 1984 clearly stated that for those who violate these rules will be charged to penalties at least one month up to one-year imprisonment.
Meanwhile, in Indonesia there are no strict penalties for the violators who neglect the obligation for the wife after divorce. However, the Religious Court provides a way for the wives who do not receive the right to file a lawsuit for the right of her ‘iddah allowance to the court. Because, basically the court has the authority to order the husband to provide the living cost after divorce. As it is written in the Marital Law Number 1 of 1974 on article 41 c as follows. “The court may oblige the former husband to provide living costs and / or determining any obligation to the widow.”
CHAPTER III
‘IDDAH ALLOWANCE IN INDONESIA AND MALAYSIA
A. Allowance of ‘Iddah (the waiting period) in Indonesia’s Constitution
1. The Brief History of Indonesian Marital Law
The acts No. 1 of 1974 in Indonesia has been chosen as the
guidelines for the Marital Law related to marriage rule in Indonesia. This
act has several historical stages in its development process, the stages are
as follow:
a. The Islamic Empires Period
The history of marital law in Indonesia mostly based on the
Islamic law values can illustrate clearly that the beliefs of moslem
in Islamic law are very strong. It can be seen from the Islamic
empires which established in Indonesia had been implemented the
law in each of their respective powers, including in the marriage
sector.
It proved in the 13th century AD (Anno Domini), the
Kingdom of Samudera Pasai in North Aceh adhered to the Islamic
law based on the Syafi’i Mazhab. Then, there are Islamic
kingdoms, as the Kingdom of Demak, Jepara, Tuban, Gresik and
Ngampel in the 15th and 16th century AD in the north coast of
36 37
Java.1 As for the function to maintain the religion is assigned to the
moslem leader and their officials who in charge to serve the
community needs in the field of Islamic ritual prayer and all the
matters which included in the family law or marriage.2 Meanwhile,
similarly the Islamic empires also established such as Gowa,
Ternate, Bima, and others in the Eastern part of Indonesia. Moslem
communities in that region are also expected to adhere the Islamic
law based on the Syafi’i Mazhab.3
Daniel S. Lev. (1972) noted that there are some models of
the court at that time, ie. firstly the judges are appointed by the
local authorities. It applied in Aceh and Jambi in Sumatra, South
and East Kalimantan, Sulawesi and some other places. Second,
there is no position itself for a religious court, but the religious
leaders carry out the judicial duties. This term applied in the area
of Tapanuli, North Sulawesi, in Gayo, North Sumatra, and Alas,
Aceh and also South Sumatera. Third, there were already a certain
court in each district and the judges are certain people who were
appointed and called the headman (of marriage) at that time. It was
found in Java since the 16th century. Usually the court has
1 Hamka, Sejarah Umat Islam Jilid II, (Jakarta: Bulan Bintang, 1976), page 53. 2 Amrullah Ahmad SF et al, Dimensi Hukum Islam Dalam Sistem Hukum Nasional, (Jakarta: Gema Insani Press, 1996), page 70. 3 Mawarti Djoned Poesponegoro et al, Sejarah Nasional Indonesia Jilid III, (Jakarta: Balai Pustaka), 1984. 38
implemented on the porch of mosque so it is known as the porch
court.
b. The Colonial Period
Before the Independence of Indonesia, the written laws
about the marriage for the certain groups were already existed. But
not for the Bumiputera Moslem (Malay race and the other
indigenous peoples in Southeast Asia, and particularly being used
in Malaysia), there was no law which can be used as standard in
their Islamic marriage implementation.4
In the early days of Dutch colonial, the marital law that
applied is the Islamic marital laws especially those from the fiqh
books in Arabic or based on the law book made by some Islamic
empires. Then it translated into the Dutch language. They called it
Compedium Freijer, a law book which contained the legal rules of
marriage and the inheritance laws according to the Islamic law.5
Meanwhile, in 1750, there were made a separation of the
Compedium which almost similar with the Muharrar book in
4 Abdul Manan, Aneka Masalah Hukum Perdata Islam di Indonesia, (Jakarta: Kencana Prenada Media, 2006), page 3. 5 Yayan Sopyan, Islam Negara; Transformasi Hukum Perkawinan Islam dan Hukum Nasional, (Jakarta: UIN Syarif Hidayatullah Jakarta, 2011), page 79. 39
Landraad, Semarang. And VOC passed a separate Compendium in
Makasar area.6
However, according to the state journal number 55 year
1982, the Compendium Freijer which largely refurbished, it has
then lifted gradually in the 19th century. This was the end of the
Islamic Marital Law history which has been written and adequately
under the Article 131 paragraph (2) sub b IS (Indische
Staatsregeling) which is a continuation of the old Article 75
Regelings Regrement (RR) of 1954, which only regulate the issues
of marriage registration, whereas the basic of marriage law used
the customary law.
The withdrawal of the Compendium Freijer in August 3,
1828, textually the valid marital law is the customary law. Except
for the Christian people, the valid law was HOCI (Huwelijk
Ordinantie Christian Indonesiers Java Minahasa an Ambon) i.e.
the Marital Law of Christian-Java, Minahasa and Ambon.
Indonesian society demanded to have its own marital law
and regardless to the existing law. Because the marital law which
made by Dutch considered incompatible with the spirit of justice of
the Indonesian nation. Even the demand was long before Indonesia
declared its independence. It is during the Indonesian Women's
6 Arso Sostroatmodjo & A. Wasit Auliawi, Hukum Perkawinan di Indonesia, (Jakarta: Bulan Bintang, 1978) 40
Congress in 1928 which announced the hope in the form of improvements of women's position in marriage.
Then the Marital Law contained in the state journal of 1929 puts the headman of marriage (penghulu) as a civil servant under the control of the regent. Then, the state journal issued number 53 of 1931. This law gave a serious effect on the existence of the
Islamic law. The three new rules offered within this law are:
1. Priesterraaden will be abolished and replaced with the
headman (of marriage) court, where a single judge will sit to
solve the cases of Islamic law,
2. The headman (of marriage) will have a status and salary as a
civil servant,
3. An appeal court will be constructed to review the decisions that
have been issued by the headman court.
However, this regulation has never been implemented with the reason of financial difficulties problems faced by Dutch government, especially to hire the headman.
The Dutch government in 1937, the General Governor, Mr.
A. W. Tjandra van Starkenbrough made a preliminary design of list marriage ordinance which offered to the public. In this ordinance is proposed to abolish the polygamy. 41
Some Islamic organizations rejected the draft of this
ordinance, as well as the women's organizations.7 However, This
plan eventually failed to be discussed in the House of
Representatives (Volksraad). Moslem came out as the first to reject
which successfully stopped the interference of Dutch government.
c. The Post-Independence Period
In the early of Indonesia’s independence, the ambition to
make our own marital law was still remain, i.e. the Act No. 22 of
1946. That was the first law which made by the Indonesian people.
Unfortunately, this law only applied in Java and Madura areas.8
Therefore, aiming to expand the coverage area of this act,
they made a new law ie. the Act No. 32 of 1954 which concerned
the establishment of the enactment of the Act No. 22 of 1946 in all
regions outside Java and Madura. Then, the Department of
Religion issued the regulation about wali hakim, marriage, divorce,
and reconciliation in the Religious Court.
Furthermore, in 1950 the Government of the Republic
Indonesia has tried to fulfill by established an investigation
7 Maria Ulfah Soebadjo, Perjuangan untuk Mencapai UndangUndang Perkawinan (suatu pengalaman) Cerama tanggal 28 Februari 1981 di Gedung Kebangkitan Nasional Jakarta. (Jakarta: Yayasan Idayu, 1981). 8 Amrullah Ahmad SF et al, Dimensi Hukum Islam Dalam Sistem Hukum Nasional, page 80. 42
committee for regulations of the marital law, divorce, and
reconciliation who is assigned to review any regulations of
marriage.9 However, the committee cannot work properly because
a lot of obstacles in performing their duties.10
The committee believed that this rule must be applicable to
all Indonesian citizens without any distinction of class, religion,
and ethnicity. On December 1st 1952, the committee delivered a
new design of the marital law. The content is that the marriage
should fit with the willingness of both parties. The limit age was
set from 18 years for men and 15 years for women, and the
regulation of polygamy, property and the prerequirement of
divorce.
Then on May 1953, based on the committee meeting
decided to prepare the short bill and were applicable for public and
was not interfere to any religions, to arrange bill on marriage
according to their perspective religion, whether if they were Islam,
Catholic, Protestant and arrange bill for groups who are not
included to one of those groups.11
9 This committee was established based on the Determination of Minister of Religion Letter No. B / 4299 dated October 1, 1950. 10 Abdul Manan, Aneka Masalah Hukum Perdata Islam di Indonesia, (Jakarta: Kencana Prenada Media, 2006). 11 Maria Ulfah Soebadio, Perjuangan untuk Mencapai UndangUndang Perkawinan, page 89 43
On April 1954, the committee delivered the bill on Moslem marriage to the Minister of Religious. However, they were given a very slow response. Only in 1957, they proposed a bill on Moslem marriage to the cabinet, but still had to wait for the new amendments. Until the beginning of 1958 there were still no response from the Department of Religion.
As for Mrs. Soemari, the Indonesia House of
Representative member and Women’s movement, was proposed an initiative bill to the House of Representatives. Soemari and the women movement composed some principles of the contents such as: “Every citizen has the right to marry according to their own religion, the basis of marriage is monogamous, every marriage should be based on the consent of both parties, and the age limit into marriage is 18 years for men and 15 years for women.”
Thereafter, the government proposed a bill on Moslem marriage to Indonesia’s House of Representative (Dewan
Perwakilan Rakyat). Notably in the bill of polygamy is allowed with certain requirements which must be approved by the previous wives, should be fair, and supportive to more than one family.
In 1960, the Social Department held a National Family
Welfare deliberation. Then in 1961, the committee completed the bill of Islamic marital law through the Decree of Minister of 44
Religious No. 16 of 1961, the result of recommendation from the
Cabinet Meeting on May 18, 1960.
Then, the Department of Religion held the Conference of
Marriage and Divorce Advisory Board (BP4) in 1962. The discussion was about the possibility of proposing bill on marriage.
In 1963, the Institution of Development of National Law (LPHN) along with the union of Bachelor of Law Indonesia (PERSAHI) held the Seminar of National Law. The result of the seminar urged the government to design the marital law which has been a long proposed to the House of Representative to be discussed again.
According to the MPRS provision No. XXVII of 1966 agreed to legalize the marital law immediately. Furthermore, in the same year the Department of Justice charged the Institution of
National Laws to prepare the marriage bill which is based on
Pancasila. The results was presented on September 7, 1968 in the form of a bill concerning on the Moslem marriage with the
President Commission No. R.02/PES/5/1967 on May 22, 1967 and the bill within the principal provisions of marriage through the
President Commission letter No. R.010/P.U/HK/9/1968.
As the bill of Moslem marriage and the bill of the basic marital law have not been resolved by the House of Representative, together with the government had stranded in a half way as same 45
as the fate of the previous proposed bill of marriage. This failure
triggered because of the crisis which occurred on the House of
Representative meeting in 1968 where one faction has refused, the
two factions abstained, and the thirteen other have agreed.
Furthermore, the efforts to produce the marital law has
seriously pursued after the general election in 1971 on stable
political condition. In one symposium on January 29, 1972, the
Women's Scholar Association Indonesia (ISWI) gave an advice to
fight for the marital law to be applied to Indonesian citizens.
At that time, the new regime of Soeharto started designing
a development with codification and unification of law in the field
of marriage as mandated in TAP MPR No. IV / 1973 concerning
the guidelines related to the archipelago insight, stated that the
whole archipelago is an entity which means there was only one
national law to serve the national interest.
There were several issues that need to be accommodated by
the government in formulating the marital law, i.e. development of
national law by codification and unification of the national laws,
the population issues, the human rights, the prestige protection of
women, and the development of family welfare.12
12 Yayan Sopyan, Islamic Islam Negara ; Transformasi Hukum Perkawinan Islam dan Hukum Nasional, (Monograph on Plenary Session: August 30, 1973) 46
Furthermore, the issue of women's rights loudly announced as well. The most persistent fight for women's rights was Kowani.
On 19 and 24 February 1973, the chief of House of Representative held a poll with Kowani. According to Maria Ulfah Subadio, it has reached some agreements in some aspects during the meeting, they were:
1. There was an agreement from the candidate spouse to prevent a
forced marriage.
2. Specified of the minimum age to get marry, with the increase
of the national interests on Family Planning (KB). The
proposed age for men was 21 years on the grounds that a man
on that age can stand alone, and be able to earn a living, while
the women age set of 18 years.
3. Based on the monogamous marriage with the very tight
exception.
4. The equal rights between husband and wife in proposed
divorce.
5. The equitably to divide the shared-property in divorce.
Those such legal development turned into a workload for the Justice Department. Then the Justice Department formed a team to formulate the marriage bill, and once it completed, the 47
draft shall be submitted to the House of Representative for a
discussion.13
However, President Soeharto with the authority pulled back
the both of marriage bill which has submitted to the DPR.14 The
reason was the resistance which came from the Islamic circles
itself. They argued that the marriage bill was contrast to the
religion so as with Pancasila and the 1945 Constitution of
Indonesia.
The resistance of the marriage bill came from various
communities, the citizen, the scholars and the government itself.
The big reaction came from the chairman of PPP (Partai Persatuan
Pembangunan) faction of KH. Yusuf Hashim15 who noted some
errors in the marriage bill and contrast to the marital law, which
based on Pancasila stated that believe to one and only God, then
marriage has a very close with the elements of religion and
spirituality.16
13 According to the Jubir Liani, draft bill submitted to the Department of Justice is a design or a description of the ideas of Prof. Sudargo Gautama, a Professor of Civil Law, Universitas Indonesia, the secular wing. See Yayan Sopyan, Islamic State; Transformation Islamic Marital Law and National Law, p. 92. 14 The Mandate of President No. Q.02 / PU / VII / 1973 dated July 31, 1973, concerning a bill on marriage. 15 Governess of Islamic Boarding School of Tebu Ireng Jombang which also become the members of the House of Representative from PPP faction NU element. 16 " Suara Sugiarto Paralel Dengan Doktrin Komunis RUU Perkawinan Bertentangan Dengan UUD 1945,” Surat Kabar Harian Abadi. (Jakarta, August 20, 1973). 48
What was delivered by KH. Yusuf Hasyim was not without
any reasons. It was precisely the rejection to the President mandate
No. Q.02 / PU / VII / 1973 which has disscused more attention to
the citizen’s benefit (kemaslahatan umat). Buya Hamka also firmly
rejected the draft of marriage bill which considered as a
contradiction to the teachings of Islam. In his opinion, the basic
teachings that tasyriul Islamy which Shariah was maintained in
five cases, i.e. maintaining the religion, soul, intellect, generation,
and wealth.
The Christian groups argued that between the state law and
the religion should be separated based on their view. In other
words, they did not approve the religion to change the legal norms
into a state legislation norm. This view was according to the
doctrine of the church, which adhered to the ideology of separation
between the religion matters (church) with the state affairs.17
A fierce debate about the marriage bill, because the
discussion itself was being a hot topic at that time, from all circles
either it from Islam, Christian, communities, youth organizations,
feminine organizations and the high-level figures who put a great
attention before the bill was becoming into the law.
17 Mohammad Daud Ali, “Perkawinan Campuran” dalam majalah Panji Masyarakat, No. 709, February 1-10, 1992, page 20. 49
After some amendments were included into the charging
committee then the marriage bill which proposed by the
government on December 22 1973 was forwarded to the plenary
meeting of the House of Representative. During the session, all of
the factions expressed their opinions, as well as the government,
represented by the Minister of Justice. On the same day of the
marriage bill passed after the discussion which took three months.
On January 2, 1974, it was assigned the Act no. 1 of 1974 Marital
Law. LN No. 1 of 1974, additional LN No. 3019/1974.
The government issued the Government Regulation No. 9
of 1975 as the enforcement regulations of the marital law. For the
next years, it turned out to be The Religious Courts as judicial
institutions which handle any marital problems between Moslems.
Evidently in the decision there are some disparities in applying the
law because some things that were not covered by the marital law.
In the way to handle this matter, through the Presidential
Instruction No. 1 year 1991 about the implementation of Islamic
Compilation Law as a standard reference for the judge of Religious
Court to determine the case.
2. The Regulation Allowance of ‘iddah in Indonesia 50
We need to realize that Indonesia as a state of law (rechstaat), where the law has an important position for the constitutional life. The logical consequence of this fact is the necessity of the legal appliance which able to regulate the life of society and the whole nation.
The law has a duty to ensure the legal certainty in the community.
The law is maintaining and preventing every people from any vigilantism acts. Any conflicts must be resolved through the legal process on the court, according to the applied law. Therefore the law bounds everyone and any acts must be accord to the applied law.
Similarly, a husband who had divorced his wife should be take the responsible to the legal consequences of divorce. It has been noted in the marital law No. 1 of 1974 on article 41 as follows.18
The consequences of divorce are due to:
a. A mother or father are supposed to maintain and educate their
children, solely based on their benefit; if there are any conflicts
in controlling their children, the court will carry their decision.
b. A father takes responsible for all the required allowances and
education of his children; if in the fact the father cannot fulfill
these obligations, the court can decide that the mother will be
liable of these costs.
18 Marital Law No. 1 of 1974, (Yogyakarta: Rona Publishing) page 24. 51
c. The court may oblige the former husband to provide living
costs and / or determine any obligations for his former wife.
Based on the law, it means that the husband still has an obligation to provide the living cost for his former wife after they are divorce though in different intensities.
This such obligations are clearly stated in the Islamic Compilation
Law in article 149 paragraph B which explained that one of the consequences of talaq is the husband oblige to provide a living, home, and clothing to his former wife during in the prescribed period unless she has sentenced to talaq ba'in or nusyuz and in non-pregnant condition. The
Islamic Compilation law is also put pressure in the article 152, "The former wife deserves the allowance of ‘iddah from her former husband unless she is nusyuz."
In the article 11 paragraph A, the marital law clearly mentioned that "for a person who broke up the marriage applied a time period". The duration (waiting period) described in more details in the Government
Regulation No. 9 of 1975 article 39 that the waiting time for a divorced woman is 3 times of her sacred period by at least 90 days.
According to Mohammad Zain in his book entitled Building the
Humanist Family (Against the Controversial Legal Draft of the Islamic
Compilation Law) legal materials of the Islamic Compilation Law must be added and refined. Among the legal matter which needs to be added is 52
about the rule of allowance during the waiting period. A wife in ‘iddah
period deserves to get allowance from her husband according to the
regulations. But in fact the allowance will never be given if the wife is not
requesting. He expected, the Islamic Compilation Law should implement
the obligation of the husband to keep providing the allowance for his wife
during ‘iddah period, whether she requested or not. The judge should not
impose the divorce before the wife’s rights is settled.19
Thus, the regulation about ‘iddah allowance for the divorced wife
has been clearly regulated. Unfortunately, the implementation still happen
the negligence, where the husband do not provide the allowance. Less
controll and no more action from the Religious Court to the violator are
causing this matter still happened.
B. Allowance of ‘iddah (period of waiting) in the constitution of Malaysia
1. The Brief History of Islamic Family Law Act 1984
As can be seen from the history, then the arrival of Islam and the
Islam transmission process took place through the trade route on the role
of Moslem traders and the preachers from Arab and Gujarat. The
Islamization process was going well with the establishment of the first
Islamic kingdom in the Malay Peninsula ie. Kalantan Islamic empire in the
19 Muhammad Zain Alshodiq Mukhtar, Membangun Keluarga Humanis; Counter Legal Draft Kompilasi Hukum Islam yang Kontroversial itu, (Jakarta: Grahacipta, 2005) 53
middle of 12th century. Then in the 15th century, the Islamic kingdom of
Malacca stood with Parameswara Iskandar Shah as the first king, who
embraced Islam in 1414 AD by the title of Sultan Muhammad Shah. This
kingdom was recorded as the first royal in Malaysia which has a law
called the "Law of Malacca".20
Malaysia presented a unique Islamic experience. Malaysia is a
multiethnic and multi-religious country, but has the political power and the
dominant culture. Since the initial period, Islam has a close relation to the
politic and society. Islam is a source of legitimacy for the Sultan who held
the role as a religious leader, the faith protector, and the defender of
Islamic law, as well as the education and traditional values.21
Islam has become a part of the territories of traditional Malay
sultanate since the Malacca era. The Islamization process of the Malays
took gradually, uneven but with the dynamic running since the colonial
times until the achievement of their independence. This is due to the
influence of the British’s rule. In addition, the influence of modernization
has brought at least a pro-colonial attitude both among those who are
educated secular or religious way.
20 Dewan Redaksi Ensiklopedi Islam, Ensiklopedia Islam (Cet. III; Jakarta: Ikhtiar Baru Van Hoeve, 1991), page 138. 21 See John L. Esposito and John O. Volt, Islam and Democracy, translated by Rahman Astuti entitled Demokrasi di Nagara-Negara Muslim Problem dan Prospek (Cet. I; Bandung: Mizan, 1999), page 166. 54
As with the first figure who succumbed to the pressure of modern
Western civilization and easily collaborate with the colonial government
was Abdullah Munshi (1796-1854). He not only helped the British
authorities, but he also helped the priests and Christian missionaries to
translate the Bible into Malaysian language.
Surprisingly, the attitude of the pro-colonialism also shown by
those that have a basic religious education and famous in the history
because of the anti-colonial attitude. Such as Sayid Sheikh al-Hadi who
sometimes did an extreme action in supporting England.22
However, the influence of Islam on the lives of the Malay family is
pronounced. Even the presence of Western colonization was unable to
separate family affairs in the Malay community from the Islamic
influences.Thus, the rules which pertain to the Islamic family cannot be
separated from the Malay community because the application to the law
itself was a personal matter that did not impact on the colonial interests –
or even on the non-Moslem community when compared to other areas of
Islamic law, such as the contracts, the loss, criminal penalties, and the
trading.23
22 Abdul Rahman Haji Abdullah, Pemikiran Islam di Malaysia Sejarah dan Pemikiran (Cet. I; Jakarta: Gema Insani Press, 1997), page 151. 23 Rihanah Abdullah, 2007“A Study of Islamic Family Law In Malaysia; A Select Bibliography”, International Journal of Legal Information, http://Schollarship.law.cornell. edu/ijli/vol35/iss3/8, November 4, 2015. 55
In the 1970s and 1980s, the Islam resurgence in Malaysia can be
more visible where the mixture between having the religious interests,
economic and cultural grew simultaneously. At that time, the government
ran a program of economic reformation with the goal to increase the effort
of the Malays and Bumiputera population. Although the main focus of the
program was the Malay socio-economic development, the promotion of
the language and cultural values of Malay, but it also strengthened the
bond of the religion and the culture.
Since the 1980s, Islam in Malaysia experienced a revival which
marked by the greatness of missionary activities and Islamic studies by
intellectuals.24 It was initiated by a Canadian anthropologist, Judith Nagata
in her work entitled The Reflowering of Malaysian Islam.25 As well as
some other works such as the Islamic Resurgence by Chandra Muzaffar,
and Islamic Revivalism in Malaysia by Zainal Anwar.
As known since their independence from Britain on September 16,
1963, the government ruled by the National Front, a coalition of several
parties which the strongest is UMNO (United Malaya National
Organization), 26 who led the National Front enjoyed the political
24 Dewan Redaksi Ensiklopedi Islam, Ensiklopedia Islam, Islamic Encyclopedia, page 289. 25 See Umar Farouk, " Penelitian Sosial dan Kebangkitan Islam di Malaysia ", In Zaiful Muzani, Development and Revival of Islam in Southeast Asia (Cet. I; Jakarta: LP3ES, 1993), page 289. 26 UMNO (United Malays National Organization) is the ruling party in Malaysia, initially tend to emphasize its role as defender of Malay nationalism, but because the pressure is so great, began to show its policy on the Malay Islamic solidarity. See Abdul Rahman Haji Abdullah, Malaysia Islamic Thought in History and Thought, page 183. 56
graduation and inserted selectively Islamic values into the government
policies and uphold the Malaysia constitution.
The political role of Islam in Malaysia was more visible around the
1980s. Then PAS27 which every political campaigns called to establish an
Islamic nation and fight for the realization of a society and a government
which took place in which there were any Islamic values, the law towards
Allah's pleasure, to maintain the sanctity of Islam, as well as the
independence and sovereignty of the country. The PAS leaders also often
promoted the vision and mission of an Islamic State of Malaysia to
implement the Islamic law based on the Qur'an and the Sunnah of the
Prophet. Because of their vision and mission, PAS branded as a
fundamentalist Islamic party even as an extremist in Islam. This party has
a lot of support from the community which mostly nominated by the
Moslem such as in Kelantan, Trengganu, Kedah and Perlis.
Although Malaysia previously already has a number of leading
organizations, but the political developments in the post-1961 brought
Islamic organization which referred not only attempted to convert the non-
Moslem, but also made for the Moslem itself to be more observant of the
religious teachings. The organization was Darul Arqam, founded in 1968
by Ustadz Ashaari Muhammad where emphasized the importance of
27 PAS (Islamic Party Entire Malaysia) is the oldest and largest Islamic political opposition parties in Malaysia, was founded in 1951 by the Muslim clerics who get out of UMNO, began to participate in the elections in 1955. Furthermore see Asep Syamsul M. Romli, Islamic Demonology Western efforts to eradicate the Islamic Forces (Cet. I; Jakarta: Gema Insani Press, 2000), page 85. 57
building an Islamic society before establishing an Islamic country.
Meanwhile, the missionary movement of the leading and the most
effective and successful politically in the 1970s and early 1980s was
ABIM (Islamic Youth Force Malaysia). Established in 1971-1972, it was
the result of the struggle of various events, issues, and concerns to grow a
spirit of revival of religion in general and mobilizing the youth in
particular. It was under the charismatic leader of one of the founders,
Anwar Ibrahim (1974-1982).
As well as the former state of British colony, then the dominant
issues were secularism. ABIM firmly rejected by all of the elements of
secularism. According to Anwar Ibrahim that the consequence of the
occupation of mind and the application of secularism in Malaysia, Islam
was only a mere of religion ritual which far from the social and political
aspects.28
Like the Islamic movements in many parts of the moslem world,
ABIM supported the Islamic-oriented country as a correction of
secularism and western-oriented development. Although it has not issued
yet an official statement regarding the establishment of an Islamic country,
he called for the implementation of the laws and values of Islam. However
ABIM remained consistent in the recognition and acceptance that
Malaysia is a multi-ethnic and multi-religious country.
28 Abdul Rahman Haji Abdullah, Pemikiran Islam di Malaysia Sejarah dan Pemikiran, p.304. 58
The Prime Minister, Mahathir Muhammad, who was elected in
1981 placed UMNO or the government in a more Islamic-oriented path,
with greater emphasis on Islam both domestically and in an international
forum. Mahathir was able to cleverly bring together the past and the
present, holding and co-opt the Islamic opposition, making use of political
Islam in the domestic, regional, and international. UMNO has called for
the need to develop a more modern moslem societies and Islam should be
competitive if wanted to thrive in the modern world.
The situation of the Islamic community in Malaysia was constantly
changing, and this matter posed challenges to the colonial-era family rules
in addressing several problems which occurred in the Malaysia’s Islamic
families. Thus, a detailed Islamic family law is needed. Finally, in the
early 1980s, Malaysia introduced a special law referred the Islamic family.
It was more precise and detailed than its predecessors. This effort was not
a new one. Several Islamic countries had already created and applied a
complete system of Islamic family law, where several improvements have
been made. These laws provide for the administration of marriages, the
rights of a wife, protection for those who are victimized in the family
institution and the punishment for those who commit matrimonial
offences.29
29 Rihanah Abdullah, 2007“A Study of Islamic Family Law In Malaysia; A Select Bibliography”, International Journal of Legal Information, http://Schollarship.law.cornell. edu/ijli/vol35/iss3/8, November 4, 2015. 59
As well as the Islamic Family Law Act 1984 which applied in
Malaysia to the part of fellowship area (Federal Territories), Kuala
Lumpur and Labuan. This rule was a reference of the Islamic citizen in
scope of marriage, divorce, division of joint property, and so on. The law
not only regulated the administration of the marriage and divorce, these
rules are also set the penalties for anyone who violated this law.
But from the various laws that apply in each of the state generally
have in common and in this case most of the legal experts and the
literature suggested that the laws of Islamic family union territory in 1984
was a model and representation for material Islamic family law in
Malaysia.
Although Malaysia is a federation which has fourteen states and
each one of them has the rules regarding to Islamic family law in each
state. But since 2000, there has been a uniformity of the laws for the whole
of Malaysia. Previously it has been a discussion to avoid the problems that
will occur because of these differences.30
2. The Regulation of Allowance of ‘iddah in Malaysia
30 Rihanah Abdullah, 2007“A Study of Islamic Family Law In Malaysia; A Select Bibliography”, International Journal of Legal Information, http://Schollarship.law.cornell. edu/ijli/vol35/iss3/8, November 4, 2015 60
Based on the above discussion that Malaysia is a country that runs
the values of Islam in all of the states, this can be proved by the Islamic
family law, where in the establishment of this Islamic law took place.
The regulation of Islamic Family Law Act 1984 governed all
matters related to the family law for the federal territory in Malaysia.
Moreover this law was as a model and material representation of the
family law legislation for other states. The content of this law certainly are
given a good rating by the Malaysian society.31
The rules regarding the provision of giving allowance of ‘iddah
listed in article 65 No. 1 of this law as followed, "The rights of a wife who
had divorced her husband for receive allowance than her previous under
the order of the court let it stopped when the wife completed the entire her
‘iddah period or if she becomes a nusyuz wife."
Under these laws assigned that the provisions of giving allowance
of ‘iddah to the former wife during the prescribed period under the
supervision from the court as long as she did not nusyuz.
Then in article 71 of this law, the court also ensured the divorced
wives who have earned the right place to stay during the waiting period as
follows:
31 Interview result with Abang Zainal Abidin (Religious division of Malaysian Embassy for Indonesia). Jakarta, 5 Oktober 2015. 61
"(1) A divorced woman deserves to stay in the house where she used to live as long as her husband does not get another place to life. (2)
The right for place to stay which regulated in the paragraph (1) discontinued- (a) If the waiting period has expired; or (2) If the child care period has ended; or (c) If the woman is remarried; or (If the woman has been guilty doing inappropriate act publicly (fahisyah); and after that, the husband can request the Court to returned the house.”
From the articles of the Islamic Family Law Act, it can be seen that the Islamic family law in Malaysia is quite assertive and detailed in regulating the right of post-divorce allowance. Even, the aspects of the shelter has also discussed explicitly and in detailed. The regulation already guaranteed the right for a divorced wife during the waiting period.
Unfortunately, it also found many cases when the husband divorced his wife who has no desire to fulfill his responsibilities to the former wife intentionally for various reasons they had. But the court saw this as an act that should not be done by a husband to his former wife.
Therefore, the legislation is also equipped with the provisions of the penalty or punishment for those who violate this law.
One of the rules that concern the authors in this law is the punishment for a husband who violate or deliberately ignoring his obligation to provide a living for the prescribed period. As stated in the 62
Article 132 regulation of Islamic Family Law Act 1984 which also mentioned the penalties in the form of imprisonment or fines to be paid.
“(1)Without prejudice to the right of any person interested under any orders made under this act to enforce the order of this act or under any other laws, the court that made the order, in case of a wilful failure to comply, therewith, may, where such order required the payment of any amounts, the direct amount will be collected in the manner of the provided law for levying fines which imposed by the court or may be sentenced the person that wilfully failed to comply, therewith will be imprisonment if the order of the monthly payment is remaining unpaid, or, in any other case, to one year’s payment remaining unpaid.
(2) The court may—
(a) if an order made under subsection (1) provides for payment to be made monthly, sentence the person that wilfully failed to comply therewith sentenced to imprisonment not exceeding one month for monthly payment remaining unpaid; and (b) in any other case, sentence the person wilfully failed to comply with the order made under subsection
(1) sentenced to imprisonment not exceeding one year for any payment remaining unpaid.32”
For the husband who deliberately ignored against the allowance after divorce, they have to be caution with one of this article. This article
32 Islamic Family Law Act 1984 article 32 63
will become the ex-wife's weapon to get their rights after divorce. In addition the Religious Court of Malaysia has a separate unit in the matter of the allowance after divorce, the institution works as a supervisor in the provision of the allowance and the welfare of the divorced wives and children. The institute named after BSK (Courant Support Family) established under the position of Syariah Judiciary Malaysia.
BSK is a new institution established under a barrage of problems, implementation and enforcement the payment of allowance order. Started since April 2009, so far it operated through three main units i.e
Enforcement and Implementation Command Unit (UPPP), Legal Advisory
Unit (UKNP) and Fund Management Unit (UPD). This is based on the content of the Prophet Muhammad’s hadith, which means: "Help your brother who is oppressing and oppressed."
The BSK chairman of the bureau work power, Datuk Kamilia
Ibrahim said, "The help to the people who oppressed referred to the institution's role in case to improving the attitude of the husband who is oppressing his children, and his wife to give a living. While, the aid for those who oppressed referred to the role of the allowance to restore their rights that deserved to get. Our goal at the BSK is becoming a family support organization that is superior to embody a compassion society, a qualified population and a progressive nation. We want to make sure the 64
group interests are eligible to receive the allowance through the allowance
orders issued by the court."33
The implementation of giving allowance after divorce is also
supported by the quite large judge’s authority. Because Malaysia adopts
the Anglo-Saxon, which provide a large space enough for the judge to
decide one case. The influence the judge to direct the law becomes better
to protect the women.
The rule of law and the efforts to support the protection of women
in general can be categorized as a gender responsive. And the criminal or
the civil sanctions that exist in Islamic family laws in Malaysia are
definitely one of the interesting features.
33 Meran Abu Bakar, “BSK bantu leraikan kemelut nafkah”, the article is accessed on November 9, 2015, http://www.utusan.com.my/utusan/info.asp?y=2010&dt =1209&pub=Utusan_ Malaysia&sec=Keluarga&pg=ke_01.htm CHAPTER IV
COMPARATIVE ANALYSIS OF ‘IDDAH ALLOWANCE RULES
IN INDONESIA AND MALAYSIA
A. The Implement of ‘Iddah Allowance in Indonesia and Malaysia
The Religious Court is a judiciary institution that has a duty and
authority to examine, execute and resolve any civil cases specifically in the
first instance for Moslem citizen. One of the duties and the authorities of
Religious Court is to assign the‘iddah allowance for the divorced wife. This
issue is a series of civil cases as a result of a divorce process.
It is proved by the judgement :
NO. JUDGEMENT NOTES OF IDDAH ALLOWANCE ORDER 1. Nomor:0089/Pdt.G/2008/PA.Wno 2. Nomor :----/Pdt.G/2009/PA.Slw 3. Nomor:0054/Pdt.G/2009/PA.Slk 4. Nomor 50/Pdt.G/2011/PAJP 5. Nomor 1164/Pdt.G/2011/PA.Skh 6. Nomor 144/Pdt.G/2011/PAJP 7. Nomor 400/Pdt.G/2012/PA.Jmb 8. Nomor 1153/Pdt.G/2013/PA.JP 9. Nomor 0089/Pdt.G/2015/PA.JP 10. Nomor : 158/Pdt.G/2013/PA.Pbr
Actually, the Religious Courts will encounter the case of the former
husband who did not obey his obligation during ‘iddah period. But it came
65 66
back to the former wife itself, whether she submitted her case of not to the
Religious Court.
As mentioned in article 66 paragraph (5) Act No. 7 of 1989 “The
petition for the children custody, children sustenance, wife sustenance, and
spouse’s joint properties can be submitted along with the divorce petition or
when the talaq vow is being announced”. Then, in the article 34 paragraph
(3) Act No.1 of 1974 article 77 paragraph (5) from the state’s Islamic
Compilation Law if both of the spouses neglect their obligation, each one of
them can file a petition to the Religious Court. Therefore, based on those
clauses, the above issues can be resolved by the Religious Court.1
Followed by Act No. 1 of 1974 Article 41 paragraph c stated that
“the Religious Court can oblige the divorced husband to providing living
sustenance and/or determine an obligation for the divorced wife”. By this
authority, the Religious Court can assign the divorced husband to fulfill the
divorced wife’s right during her ‘iddah period. The amount of allowance
that should be providing to the divorced wife can be discussed by both
sides. If they can not reach a deal so the Religious Court can determine the
amount of ‘iddah allowance based on the divorced husband’s capability.2
The Religious Court try to reconcile both sides if the divorced wife
who filed the petition to claim her right to the Religious Court, because the
1Moh.Mahfud, dkk.,Pengadilan Agama dan Kompilasi Hukum Islam dalam Tata Hukum Indonesia (Yogyakarta: UII Press, 1999) page 159. 2MohMahfud, dkk.,Pengadilan Agama danKompilasiHukum Islam dalam Tata Hukum Indonesia, Page 155. 67
former husband did not fulfill his responsibility. As declared on article 58
verse 2 Act No. 7 of 1989 is “the Courts try to make a big effort to help the
justice seeker who facing the obstacles to achieve the justice with simple,
fast, and low cost”
The articles above showed that the Religious Court tend to help the
cases which filed by the divorced wife because the former husband disobey
his responsibility. The Religious Court will encounter this case to give the
decision and oblige the divorced husband to fulfill his responsibility to his
former wife.3
The procedure that usually taken by the Religious Court to handle
this case which according to the Article 55 Act No. 7 of 1989“ every
investigation in the Religious Court will start from the submitted petition or
lawsuit and the litigants sides will be called according to the provisions”.
It explained that after the petition or lawsuit are submitted and the
divorced husband did not take his responsibility, the Religious Court will
call both side and asking about the problem to do a reconciliation.
The Religious Court advise the former husband to solve the case
peacefully.4 The reconciliation for both sides is one of the principles of the
court. If the reconciliation is achieved to the both sides, the Religious Courts
will make a deed peace (akta perdamaian). The deed gives equally the same
right with a legal enforceable decision.
3 Ny. Soemiyati, HukumPerkawinan Islam danUndang-undangPerkawinan Islam, cet. 2, Liberty, Yogyakarta, 1986, page 124. 4Act No. 7 of 1989 about Religious Courtarticle 56 verse (2). 68
Therefore, if the reconciliation has reached by the both side, The
Religious Court can cease the case. If the former husband disobey the court’s decision about the ‘iddah allowance and her former wife acquiesce this case, the Religious Courts cannot sue the divorced husband.
If this case is not claimed by the spouses, then the Religious Courts does not have the authority to process this case. In according to the principle of civil justice to prohibit the judge to make a decision on the matter that has not prosecuted yet, and give more than the demand by the litigant, as regulated on Article 178 paragraph (3) HIR.
So, the justice seeker should be active to demand their rights.
Because all of the cases that handled by the Religious Court should be based on the petitions or lawsuits itself.
The last option the divorced wife can take if the husband deliberately ignores the obligation is to submit execution request to the
Religious Court to get her rights back. An execution in the Religious Courts is based on 196 a 1 HIR and Article 206 a 1 R.Bg, the authorization to held the execution is the court who decide the case which correspond to its relative competency. Before the execution, firstly the Chairman of the
Religious Court issued a determination which is addressed to the clerk of the court or a bailiff to do an execution under the authority of the Religious
Court.5
5 Abdul Manan, Aneka Masalah HukumPerdata Islam di Indonesia,page 187-188. 69
As well as in Malaysia, problem solving to the ‘iddah allowance
violation by the former husband, Mahkamah Syariah (Syariah Court) have
to wait to the petition or lawsuit from the divorced wife. The Islamic Family
Law Act in Malaysia stated that the divorced wife have the right to submit a
lawsuit after the divorce. The lawsuit might claim for her ‘iddah allowance,
the postponed dowry, mut’ah, and the joint properties.6
Islamic Family Law Act also describe that a spouse who want to
apply a divorce petition should include the issues related to the divorce,
such as ‘iddah allowance, children sustenance, child custody, mut’ah, and
joint property. In other words a divorce petition should include those
matters.7
In Malaysia, a lawsuit resolution about ‘iddah allowance solved by
Mahkamah Syariah, advised both parties to end the petition peacefully or
conveniently.
Assignment to provide ‘iddah allowance for the divorced wife is
ordered by Mahkamah Syariah after the lawsuit has submitted by the
divorced wife or made by the both parties when the divorce processed in the
court.
The Islamic Family Law Act will determine the amount of ‘iddah
allowance that should be provided. Mahkamah Syariah will consider the
6 Raihanah Abdullah, WanitadanPerundangan Islam (Kuala Lumpur: Ilmiah Publisher 2001), page 108. 7Raihanah Abdullah, WanitadanPerundangan Islam, page 109. 70
husband capability and the wife necessity without assuming her position and
income.
If the both parties agreed their lawsuit, therewill be a letter for the
divorced husband to pay the ‘iddah allowance and other sustenance after the
divorce process. The judge will also decide the residence for the divorced
wife during her ‘iddah period.8
Based on the interview with the Religion Division of Malaysian
Embassy for Indonesia said that usually there is a payroll deduction for each
month automatically to the divorced husband who has a permanent job for
wife and child sustenance. This deduction will be supervised by mahkamah
syariah. If the husband does not have a permanent job, the court cannot do
further monitoring.9
If the husband remains reluctant to fulfill the assignment,then the
article 132 Islamic Law Act stated that if the case of the ignorance has
occured, the divorced wife may submit a petition for law enforcement to the
court. The husband obligated to fulfill it.If he remains negligent the
assignment, mahkamah syariah will precede it according to the applied law.
In paragraph 2 stated that “The court may: (a) if an order made
under subsection (1) providing for payment to be made by monthly, penalty
to a person who wilfully fail to comply will be imprisonment which not
exceeding one month for each month’s payment remaining unpaid; and (b)
8Article 71 Islamic Family Law Act (Federal Territories 1984). 9Interview result with Abang Zainal Abidin (Religious Division of Malaysian Embassy for Indonesia). Jakarta, 5 Oktober 2015. 71
in any other case, a sentence to a person who wilfully fail to comply with the order that under subsection (1) will be imprisonment not exceeding one year for any payment remaining unpaid.”
Based on article above, if the divorced husband deliberately ignores to pay ‘iddah allowance for the divorced wife, the judges will take a strict punishment. The punishment can be one month to less than one year imprisonment.
Mahkamah syariah behave accordance the Article 59 paragraph 1 stated that the court has the authority to obligate the divorced husband to feed his wife or his divorced wife.
The judge’s responsibility is not done by issuing the penalties, but also to release an execution letter. This letter can be released by mahkamah syariah if the divorced wife made a petition for an assignment violation.
In the previous chapter has been described about an institution unit in Mahkamah Syariah called Family Support Division (Bahagian Sokongan
Keluarga) which under the Departements of Syariah Judiciary of Malysia.
In this case, this institution has the authority to monitor the payment of
‘iddah allowance and the divorced wife and the children welfare. This institution should manage and monitor the payment of ‘iddah allowance and the other divorce consequences. The main task of this institution is to ensure the groups that deserve to receive the living sustenance through the obligation issued by the court. 72
B. The Analysis Punishment to Neglected of ‘Iddah Allowance
Islam is essentially made up by two basic teachings. First, absolute
and permanent teachings (Qath’i). Second, the relative and unstable
teachings, it can be changed and modified (Dzanni)10. Ijtihad belong to the
two teaching types. This indicates that the development and renewal in
Islamic teaching is possible for the relative Islamic teachings, including in
law sector.
Islamic law in this sense gives the epistemology opportunities in
every moslem region respectively to apply their law in a different way. This
fact shows the trends in moslem countries’s law system. It is not only
because of the adopted political system but also by many factors of history,
sociology, and culture of each country.11
Law enforcement in various Moslem countries has some different
patterns and systems. In a country where the majority of the population are
Moslem has a different atmosphere with the country which has balanced
population between Moslem and other religion, for example these countries
have a plurality in the religion, the dominant of the authorities or the
"political willingness" were also effected on a country's legal policy.
Therefore, the implementation of Islamic law in Moslem countries not only
10FathurrahmanDjamil, Filsafat Hukum Islam (Cet. I; Jakarta: Logos WacanaIlmu, 1997), page 43. 11Amrullah Ahmad, et.al.,Dimensi Hukum Islam dalam Sistim Hukum Nasional (Cet. I; Jakarta: GemaInsani Press, 1996), Page. xi. And see Amir Mu’allim danYusdani, Konfigurasi Pemikiran Hukum Islam (Cet. I; Yogyakarta: UI Press, 1999), Page 2-3. 73
depends in how many followers of Islam but also determined by the country’s developed and adopted system itself.
Malaysia is one of the countries which have a notable position because their pace in Islam. The Malaysia’s Islamization process is not happened instantly, but through the long journey, a struggle, and some difficulties. Previously, Moslem population in Malaysia are not as much as
Indonesia has, moreover the country is dominated by the Chinese and Indian ethnic. Nowadays, Malaysia goes international with a dense of Islam atmosphere in its policy legislation.
Indonesia as well, with the most Moslem population it will certainly implement the law and enrich the daily life with the Islamic value.
It shows from several Indonesian laws that taken from the Qur'an and
Hadith principal. In an Example Law No. 1 of 1974 concerned about Family law and the Islamic Compilation Law.
Meanwhile, Malaysia called the Islamic Family Law Act 1984 is the law that regulate the family legal affairs in Malaysia Federal Territories of Kuala Lumpur and Labuan.This rule is a reference of Islamic citizen in the region to carry out the actions related to the family law itself.
Moreover, these laws serve as a model and the representation for family law legislation for all states in Malaysia. The alliance region became the first region to set the law of Islamic family law, which has been prepared by the federal attorney general's office. Mostly of the contentsare adopted 74
from the India and Pakistan Islamic family law which adhere Hanafi and
Maliki’s Mazhab.
On its development, Malaysia has been four times amendments which had happened to several articles to this law.They are in 1992, 1994,
2002, and 2006. It aimed the law to adjust the current development and to ensure the legal conviction for the citizen.
One of the legal assurances which are given to this legislation is the form of a punishment for those who violate the law. It can be seen in chapter 4, the chapter about penalties. It summarized the penalties for the offenders who break the rules including the divorced husband who deliberately neglect the assignment to pay ‘iddah allowance to his former wife.
Therefore, it should be understood that it does not mean the wife will not receive her sustenance from the husband automatically after the divorce. The women are still deserved to receive the sustenance within the prescribed period at talaq raj'i except she is nusyuz.12
However, if in the practice the ‘iddah allowance has not given by the husband deliberately to the wife it can be called dzalim. Because according to the Islamic law, the ignorance to pay ‘iddah allowance is a sin.
Prophet said, “A great sin of a man who wasted their dependents”.
12 T. Muhammad Hasbi Ash-Shiddieqy: 269; Mahmood Zuhdi: 181 75
Furthermore, the Prophet said: "It is a sin for someone who hold a living for
their dependents" (as narrated by Muslim).13
In another hadith, "Fear you to the God in the women matters
because you have taken them to trust the God and the right for you to bother
them with the mandate of God and is prescribed to you (husband) prepared
and dressed them in the best way as possible". (as narrated by Muslim).
Hadith narrated by Muslim - Jabir ra.Prophet SAW said, "And fear
the God in matters relating to women because you have taken them (as
wives) with the mandate of God and asked that their genital is legal for you
with the words of God,they are responsible to you and prohibitones that
who you dislike to get into your house, so if they do so, let you hit them with
a punch that did not hurt them. You are responsible for them to feed and
clothes them in kindness and in fact I have left something to you which if
you stick with it and you will never misguided (Al-Qur'an)"
As we know, the majority mazhab in Malaysia is Syafi’i. It is not
surprising that most of the legal aspects in the laws which are dense with the
syafi'i madzhab rules. 14 These rules were adopted directly from the
13 Al-Imam Muslim, Sahih Muslim, Terjemahan Hadith. Singapore :DarulFajar Publishing House, VolIV. 14 NabielaNaily, dkk.,HukumKeluarga Islam Asia Tenggara Kontemporer: Sejarah, Pembentukan, danDinamikanya di Malaysia, Executive Summary IAIN SunanAmpel Surabaya, 2013, page 17. 76
principles of the Syafi’i school of ideas which was predominantly followed
in spite of a number of mixed cultural influences.15
In this case, the syafi'i scholars who also agreed with the other
Madzhab scholars define that during the prescribed period the husband is
obliged to provide the sustenance and a residence for theformer wife. In his
opinion, the divorced wife with talaq raj’i is allowed to earn a living during
her waiting period. Meanwhile, the divorced wife who has been in talaq
ba'in should not be given a living or a residence except she was pregnant.
This matter caused by the difference in interpretation of the hadith of the
Prophet which was given to Fatimah binti Qais.16
Along with this term, the Islamic Family Law Act 1984 has
established ‘iddah allowance be given only to the divorced wife by talaq
raj'i and she did not nusyuz. Indonesia as well, the marital laws and the
Islamic compilation law also implement the same in the determination of the
provision of ‘iddah allowance.
Furthermore, every court has the large enough authority to
determine the obligation of the divorced husband. This means that the court
has the significant role to ensure the right of a divorced wife.
Thus, it is very clear that the wife’s duty is go through her
prescribed period after the divorce and the husband’s is to provide the
15 Rihanah Abdullah, 2007“A Study of Islamic Family Law In Malaysia; A Select Bibliography”, International Journal of Legal Information, http://Schollarship.law.cornell.edu/ ijli/vol35/iss3/8, 4 November 2015 16SayyidSabiq, Fiqh al-Sunnah, (Dar al-Kitab al-Islami), page 258. 77
allowance during the prescribed period as indicated in fiqh and legislation.
Then the both parties should be able to run the relevant obligations and rights according to the instructions as well as possible.
However, it is unfortunate if the husband disobeying the obligation that ordered by the court. This may happen due to many factors such as the husband in a poor economic situation, the husband has other dependents to his new family, or he deliberately ignored the court’s order to provide
‘iddah allowance for his former wife.
This condition will be aggrieved for the wife sides. Therefore, they are allowed to file a lawsuit to the court. The court could take a further act to give the rights that should be obtained for the divorced wife. We should prevent the condition that their lives become more difficult moreover in the unstable post-divorce condition.
Sometimes, the divorced husband will only give the ‘iddah allowance on a few times after the divorce or in some cases not at all. So far, according to the author’s observation the divorced wife did not sued their husband about this matter. It is because to file a lawsuit to the
Religious Court need hefty fees, wasting of time, and even a mental preparation. So, they choose to give it up and maintain their own life and the children.
Malaysia has implemented a system of physical punishment for a husband who did not carry out his obligation to provide ‘iddah allowance. 78
So, the divorced husband will think twice to disobey and ignore the court’s decision to provide ‘iddah allowance.
Although the Qur'an and hadith does not explicitly mention the punishment for a husband who ignore his obligation to provide ‘iddah allowance for his former wife, but there are a punishment system in Islamic laws called ta’zir.
Ta’zir is a kind of punishment for immorality acts which there is no hadd and kafarat about this matter.17 In other words, ta’zir is a punishment for someone who violates the laws but has not been regulated in the had or kafarat.
Ta’zir has been assigned for all of syar’i offender besides hudud and jinayat. All of the unassigned punishment level by syar’i will be set the punishment by the authorities and handled over to the ruler.
The scholars agreed that ta’zir includes all of crimes which not belong to hudud nor the kind of jinayat. This penalty applied to both crimes.
That is a crime to do not carry out the obligation and doing the prohibition.18
The characteristics of ta’zir are:
1. It is a law foundation and a legal provision based on ijmak.
2. Including all forms of crime and immorality besides hudud and qisas.
17 Abdurrahman Al-Maliki, page 239. 18 IbnuQayim, page 188. 79
3. Ta’zir generally occurs on some cases that still have unassigned
punishment level, although the kind of punishment already assigned.
4. The penalty set by the authorities or a qahdi (judge)
5. Based on the general provision of Islamic Shariah and the interest of
relative society.
Some forms of the action that can be punished with ta'zir are
various acts of a crime or immorality which set by the ruler (ulilamri) based
on the Islam studies for the sake of the public concerns (maslahah). For
example, for the various goverments regulations that have been established
based on the Islam studies, corruption, economic crimes and other
violations. Ta'zir is so general and elastic, so any acts (other than hudud and
jinayat) that cause offense to the religion, ruler, society, or individual it can
be categorized as a ta'zir crime.19
Malaysia has implemented the physical punishment like
imprisonment to Family Law offenders. Thus, the punishment is also based
on a system and Islam method in determining the punishment. There are
several forms of punishment ta'zir, one of them is the imprisonment (al-
habs). There are two types of imprisonment in the Islamic law: the
imprisonment for definite term and the imprisonment for indefinite term.
The imprisonment for a definite term may be inflicted for minor offences, as
the jurist prefers the flogging as the punishment for imprisonment for one
19 Asadullah Al-Faruk, Hukum Pidana dalam Sistem Hukum Islam, (Bogor: Ghalia Indonesia, 2009), page 54. 80
day,20 and so for the maximum period, there is a different opinion among the jurist. The Maliki, Hanafi and Hanbali do not fix the maximum period for the ta’zir imprisonment as it varies for each offence and from one person to another. 21 According to the Syafi’i, the maximum period of the imprisonment is one month for investigation and six months as punishment and it must not exceed one year at any cases. This view is based on an analogy or qiyas to the punishment for the adult committed by an unmarried person. The punishment for the adultery (a haddin syafi’i view) is one year.
Therefore, ta’zir, if it is going to be jailed, must not exceed its hadd.
However, among the Syafi’i jurist there is another view which is similar to the other three studies. The majority view, therefore, that the qadi is free to determine the maximum period of a definite term of imprisonment. It is allowed, according to all of the teachings of Islamic jurisprudence, to inflict imprisonment as an additional punishment if the circumstances require accordingly.22
As the imprisonment for the unlimited term, it is burdened on the habitual criminal who, in the view of qadi, cannot be reformed by a kind of ordinary punishment. This punishment has tostand still until the criminal’s atonement or his death, in the case of a dangerous criminal.23 This kind of imprisonment is similar with the hadd punishment for an armed robbery
(hirabah) where the determined punishment is a banishment (interpreted as
20IbnQudamah, Mugni, Vol X, Cairo, page 347, 348. 21 Abu Ya’la, al-Ahkam al-Sulthaniyah, Cairo 1939, page 216. 22Ibn al-Humam, Fath al-Qdir. Vol. IV, page 216. 23IbnFarhun, Tabsirat al-hukkam, page 227. 81
imprisonment), to be inflicted till the criminal’s repentance or until his
death. Ta’zir imprisonment for indefinite period can only be decided as long
as the offender renewal with another punishment is impossible. Under this
occasion only the unlimited imprisonment is being justified.24
Meanwhile,there is a rule based on the qaidah fiqhiyah that
which means “Mudharat must be eliminated”. According to "اﻟﻀﺮر ﯾﺰال"
Ahmad bin Muhammad Al-Zarqa’ that the rule means if something is
considering to be moderate or even it is involving a crime (mudharat), then
its existence shall be eliminated.25
The holy Quran explained this rule in surah Al-Baqarah on verse
231 and 229: “When you divorce a woman, and they fulfil their ‘iddah, then
take them back in appropriate term or release them in equitable term as
well; but do not take them back to injure them ...”, and “Talaq (that can be
reconciliate) two times. And then after that shall be reconciliate in a good
way or divorce in a good way as well”
The rules above implied in the verses of holy Quran that the action
tends to minimize the wickedness or negative effect which should be
avoided. As explained, it is alright to announce talaq, but it must based one
in a good way and should not cause the wickedness for both parties.
24Mohhammad Iqbal Siddiqi, The Penal law of Islam,(New Delhi : S.M. Shahid For International Islamic Publisher, 1994),page 170. 25Ahmad Sudirman Abbas, Qawa’id Fiqhiyyah; Dalam Perspektif Fiqh, (Jakarta, Ilmu Jaya dan Anglo Media Jaya, 2004) page 125. 82
One example to this rule is to prevent people to do a crime. If
someone committed a crime, it must be prevented as much as possible.
Although it should done by dangerous (dlarar) way to prevent a bigger
danger. Sometimes it is a necessity to harming, hurting, and killing the
perpetrator as a prevention act.
Dlarar is a must, because it can cause a bigger crime and produce
more victims. It will disturb public peace and the security then people will
live beneath fear and anxiety. Therefore, a dlarar enforcement to prevent a
bigger dlarar is a necessity.26
Based on those explaination, the rules regarding the husband who
ignored to provide ‘iddah allowance to his former wife is included as a
prevention act. The offense itself is making the wife persecuted because
their rights are not fulfilled.
The other qaidah to restrict the rules above is
اﻟﻀﺮر اﻻﺷﺪ ﯾﺰال ﺑﺎﻟﻀﺮر اﻻﺧﻒ
“A bigger dlarar can be removed by a lighter dlarar”
The law sanction was agreed by the scholars which allowing to
imprison for a period which has been set by the judges. The punishment is
called ta’zir that can give awareness and a lesson to the divorced husband
for being responsible to his obligation. Until it can be prevent other
wickedness.
26Ahmad Sudirman Abbas, Qawa’id Fiqhiyyah; Dalam Perspektif Fiqh, (Jakarta, Ilmu Jaya dan Anglo Media Jaya, 2004) page 143. 83
Basically, any types of punishment which have given are a dlarar, but if welet them to do it will cause a bigger dlarar. The law implementation counts as aprevention act to avoid the bigger dlarar.
Therefore, the sanction implementation is animportant rules for the sake of the avoidance another risk.
Furthermore, some facts prove that there are some interesting cases in Islamic family law in Malaysia which has tried to integrate some elements of women protection. The women protection has done in many ways. There is an interesting rule which different with the Indonesian rule to avoid a case that can be harmed the women right. The sanction will be burdened to the husbands who neglect their responsibility to provide ‘iddah allowance after the divorce.
A divorce will not be a big problem if it is not linked with the fate and rights of obligations between the parties are involved. Fiqh recognized that the women are the ones that should be protected, hence there are rules to provide ‘iddah allowance and mut'ah. It called a protectionism approach in gender analysis. This method is more appropriate until today because there is a different role in cultural and social between men and women.
Despite the fact that many women are also working. However, this 84
phenomenon is not systemically changing their part and responsibilities in
the domestic range.27
Therefore, a comprehensive view is the best way on the issue
which related to gender to avoid women exploitation. The divorce and post-
divorce condition in a gender perspective is important due to the rupture of
the marriage bond and the common interests. In addition, most of the
divorce cases will entangle the joint properties or the child custody.
Meanwhile, many people in Malaysia and other countries
expressed the issues regarding the gender equality (similarity).Then, at least
two issues to discuss about “the equality” regarding the differences and the
similarities.
According to Dr. Mahathir Mohamad28, he felt that there should be
a justice for the women, but not about the equality, as the women are
different with the men. He advised in order to be equal with the men. He
illustrated his point by saying that not all the things done by men are good.29
Equality is not about the similarity (or the diference). Equality is
about the final result to be achieved because women and men are different.
The differences must be acknowledged. As an example, women can
pregnant (occur to the women only), and therefore should have given
27Nabiela Naily, dkk., Hukum Keluarga Islam Asia Tenggara Kontemporer: Sejarah, Pembentukan, dan Dinamikanya di Malaysia, Executive Summary IAIN Sunan Ampel Surabaya, 2013, page 19. 28 He is a Prime Minister (PM) in Malaysia 29Salbiah Ahmad, Malaya; Critical Throghts on Islam, Rights and Freedom in Malaysia (Jakarta :Petaling Jaya, 2007), page 59. 85
special treatment and benefit in giving a birth. The difference is recognised for what is and the different treatment which is required in order that women have an equal access to participate in social, politic, and economic activites.
The matter that constituties equality (and justice) for women is not about the protectionism (men and women are different, women are weaker and subordinate and need to be protected). It not about the similarity (men and women are similar and should be treated the same). The equality is about to correct the women’s unequal position in society because of their past discrimination.
In the connection with the previous explanation about gender equality, women still have a special treatment although the position of men and women in some various fields has been set. In an example about pregnancy, the men will not get a special treatment for this matter because he will not get pregnant. The regulation discussed the obligations and the rights to accept ‘iddah allowance during the waiting period (‘iddah) as well.
The divorced husband will get a punishment for being neglected to provide
‘iddah allowance. The sanction assigned to the divorced husband who neglects to provide ‘iddah allowance is a prevention to ensure the woman’s rights.
Despite Indonesia has not introduced a penalty system such as in
Malaysia, the countrys till has a solution to solve this problem by file a lawsuit to the Religious Court about ‘iddah allowance. The Religious Court 86
will held a reconciliation to the both parties to achieve a settlement. As explained in the Holy quran in surah Al-Hujarat in the verse 10:
“The faithful people are brothers, so making peacebetween your two misunderstanding brothers; and fear Allah that you may receiveHis mercy.”
And also stated on the Holy Quran surah an-Nisaa : 59
.
.
“To all the believers! Obey Allah, and obey the Messenger, and those who charged withauthority among you. If you differ in something, then return it toAllah and His Messenger (Sunnah), if you do believe in Allah and the Last Day. That isthe best (for you), and most suitable for the final determination.” 87
The marital law in Indonesia did not include the sanction system of
sanctions or the punishment. But, many Indonesian marital laws will
prioritize the principles of peace (reconciliation) at first. As regulated in
Article 39 of Law No. 1 of 1974 and Article 31 Government Regulation no.
9 of 1975.
Islam commands to resolve any disputes through an “ishlah”
approach. Therefore, the religious court’s judges will carry out the function
of "the reconciling". However, as much fair as the court’s decision is, it will
be fairer if it solved by reconciliation.
If the reconciliation did not achieve the settlement, then the
Religious Court have the authority to assign the obligation for the husband
after the divorce. The Religious Court is the last choice for the divorced
wife to submitte petition according to the state procedural law. But with a
difficult procedure, a high cost, and waste of time then most of the divorced
wives are reluctant to file a lawsuit so they let their husbands deny to
execute their duties.
In the writer's observation, in the marriage Act No. 1 of 1974 there
is not found the sanctions listed. According to Darji Darmodiharjo, the law
actually has four elements there are. yaitu (1) command, (2) sanction, (3)
duty,and (4) sovereignty.30
30 Darji Darmodiharjo dan Shidarta, Pokok-Pokok Filsafat Hukum.(Jakarta; Gramedia Pustaka Utama, 2006) page 114. 88
As the two sides of a coin, the law and sanction completed each
other. The law without the sanction will be difficult to enforce. It can even
be said that the social norms without the sanctions is merely a moral,
otherwise sanction without the rule of law include will be only an arbitrary
of the rulers.
The sanctions are always associated with the legal norms or rules
of law of the other norms, such as the moral norm, the religious norm or
beliefs, and the decency norm. A sanction will make a different between the
legal norms and the other norms. As stated by Hans Kersen that the
fundamental difference between the legal and the moral law is a coercive
order, a regulation of the norm that aims to embody a certain behavior by a
forced action that socially organized to the performer. Otherwise,the morals
are the social regulation that does not have that kind of a sanction. The
sanctions of a moral regulation are just an approval and disapproval on the
appropriate behavior which is contradicts to the norm, and there is no the
coercive measures are applied as a sanction.31
All of this matters mean that the law is the command of the state
through the ruler must be obeyed and attach the sanctions to the law, as
there is no segregation between the law and the sanction. Like two sides of
where one side is the part of the other side. When a legal norm does not
have the sanction, then the norm can only be categorized as a moral norm.
31 Hans Kelsen. 1978. Pure Theory of Law. Teori Hukum Murni. Dasar-dasar Ilmu Hukum Normatif, Penerjemah Raisul Muttaqien. (Bandung,Nusamedia&Nuansa, 2007) page 71. 89
Thus, according to the writer's observation the marital law in
Indonesia has not a strict sanction yet, which still found many frequent violations in its practice. It is likely to cause a bigger dlarar and other crimes such as the divorced wife who felt persecuted because their rights are not fulfilled even their life become more difficult and it will be a bigger crime as an effort to earn a living for her and the children. The‘iddah period will be a difficult time for the divorced wife where they begin to adapt and arrange their new life. Islam has provided the best solution for this matter by arranged the‘iddah regulation, in addition to assure the condition of her womb as well so that he can rise up after the divorce.
Therefore, in order to avoid a bigger dlarar there should be a regulation or any clear rules regarding the negligence of providing ‘iddah allowance by the divorced husband. It is to make clarity in Indonesia’s law of marriage so as to reduce the level of violations of the law.
However, Indonesia still has a chance to fix this matter, in addition to repair the political and economic aspect, it also important to pay attention in an essential regulation like the marital law in Indonesia. A marriage or a family is the smallest unit of an institution which becomes the forerunner to the country’s improvement. CHAPTER V
CONCLUSION
A. Conclusion
Based on the result of the discussion above related to The Neglect
of Post-Divorce ‘iddah Allowance (A Comparative Study of Indonesia’s
Positive Law and Malaysia’s Islamic Family Law Act 1984), I can give the
conclusions as follows:
1. The regulation about ‘iddah allowance in Indonesia stated in the
marital law no. 1 of 1974 article 11 (a) and the Islamic Compilation
Law article 149 (b). Meanwhile in Malaysia, in the Islamic Family
Law Act article 65 and article 71 as well as the penalties for the
violators the rules which contained in the article 132.
2. Basically when a judge handles a divorce case, he/she will seek to
ensure the rights and the obligations of married couples who then have
divorced, including keeping the right of the divorced wife to receive
‘iddah allowance according to the law. Indonesia and Malaysia have
the same system to solve this problem, it is by submitted a lawsuit to
the religious court at the time of divorce or post-divorce. The
enforcement of the regulation in Indonesia limited to the wife filed a
lawsuit, then the religious court will advice to make reconciliation.
While, in Malaysia this case can solve with a further action. The
husband can be imprisoned in accordance with the clause in the
90 91
legislation. The wife does not have to worry about the case that will
not be resolved. Mahkamah Syari’ah has a special unit to oversee the
issue called BSK (Bahagian Sokongan keluarga). BSK has the duty to
ensure the rights of divorced wife to receive ‘iddah allowance orders
which issued by the court.
Malaysia looks more assertive in these rules. They introduced a system of the sanctions for their Islamic family law. Therefore, the sanction with at least one month in prison and a maximum of one year for the husband who disobey the judge’s order to provide ‘iddah allowance and good supervision by the court, it is expected that there will no more the husbands disobey this rules. This regulation was made in an attempt provide the benefit for both sides, and no one feels aggrieved.
Meanwhile, Indonesia is more flexible in applying these rules.
Where the court is passive and suggested to make reconciliation for the both side. Although the judge may order to execute this case, but so far many wives are pulling back and do not continue the case. Then, many wives do not recieve their rights as regulated in Islamic law and the constitution.
Looking at the exist case and there are many cases in Indonesia.
Even the reconciliation is not able to make the husband obey the rules.
Therefore, the regulation that implemented in Malaysia can avoid family law offender especially about the sanction for the divorced husband who neglect ‘iddah allowance can serve as an example for Indonesian law to make the marital law in Indonesia and provide a legal certainty. 92
Thus, we can conclude that Islamic law changed following the
benefit of the people. It can be proved by the ijtihad done by the law
enforcement institution, especially the law enforcement in the field of
Islamic family to renew or making the additional rules in the application of
Islamic family law in each country as a form of achieving benefit of the
people and order in the state.
B. Suggestions
1. That the Indonesia’s marital law has the authority which can make the
citizen obey the instruction from the legislation. The author argues that a
sanction for the offenders is an efficient way to make people obeying the
rules. Therefore, Marital Law may provide legal certainty.
2. That the rule makers and law enforcement in our country is run by a
competence people and undestanding in Islamic law. Because at some
aspects of the law in our country are using the legal basis of Islam. To
make the laws which based on Islam, it should be made by an expert in
this sector. Furthermore, they can minimize the another ‘importance’ that
intervention of Islamic law in Indonesia.
3. That Indonesia need an unit which have the duty to control the right and
the obligation to the divorced wife and husband as well as BSK
institution (Bahagian Sokongan Keluarga) in Malaysia.
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APPENDICES
96
INTERVIEW QUESTION
Informant : Abang Zainal Abidin Bin Abang Ariffin (Religious division of Malaysian Embassy for Indonesia)
1. Is the Islamic Family law Act 1984 still applied in Malaysia ? 2. Has Islamic Family law Act 1984 ever been amendmented ? 3. How many times has it been amendmented ? When ? 4. In the secton 132 of Islamic Family law Act 1984, it is explained that who wilfully neglect to comply with order, gets imprisonment less than 1 year. Is still applied in Malaysia ? 5. What source to compile the Islamic Family law Act 1984? 6. What is the response and the impact Malaysian citizen with Islamic Family law Act 1984 ? 7. How about your opinion of this rules?
INTERVIEW ANSWER
Informant : Abang Zainal Abidin Bin Abang Ariffin (Religious division of Malaysian Embassy for Indonesia)
1. Yes, these laws still apply to the federal territory. 2. The law has been amended for several times. 3. The law has been amended four times that is in 1992, 1994, 2002, 2006. 4. These law has applied in Malaysia, the imprisonment has enfoced for who ignore the law minimal 1 month and maximal 1 year. 5. Of course from Qur’an and hadith, islamic reference, norm and living law in Malaysian citizen. 6. Malaysian people give a good response for these law, they accept the law well. And they obey this rules. 7. Actually, the allowance is automaticaly given to the wife. Because salary’s husband automaticaly cutt off by the court. Court has the authority for this policy. And every month wife receive the allowance. Except husband who does not have permanent job. Some case happen caused this problem. And I think this rules can make divorced wife more calm and comfort to through her difficult times after divorce. Make husband more wisely and responsible with his obligation. There is no one aggrieved from the both side.
SURAT PERNYATAAN EDITOR BAHASA INGGRIS
Yang bertanda tangan di bawah ini :
Nama : Dede Sarmidi
Tempat / Tanggal Lahir : Bogor, 27 Mei 1990
Alamat : Kp.Cikerewis Ds. Limusnunggal, Cileungsi-Bogor
E-mail : [email protected]
Dengan ini menyatakan bahwa telah memeriksa dan mengedit skripsi
Dewi Sarah mahasiswa UIN Jakarta dengan judul “The Neglect of Post-Divorce
‘Iddah Allowance (A Comparative Study of Indonesia’s Positive Law and
Malaysia’s Islamic Family Law Act 1984)”
Demikian surat pernyataan ini dibuat dengan sebenar-benarnya. Atas perhatiannya saya ucapkan terima kasih.
Jakarta, 10 Juli 2016
Dede Sarmidi