Vol. 61, no. 1 (2023), pp. 1-30, doi: 10.14421/ajis.2023.611.71-102
ISLAMIC LAW OF INHERITANCE IN KUBU KINGDOM
The Content Analysis and Historical Approach of Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ Works Ismail Mundu (1941 AD)
Muhammad Lutfi Hakim
State Islamic Institute of Pontianak email: muhammadlutfihakim@iainptk.ac.id Abstract
This article analyses a manuscript on Islamic law of inheritance, entitled
“Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ,” written by Ismail Mundu. The manuscript resulted from Mundu’s anxiety about the difficulties encountered by his students in understanding the Islamic inheritance-sharing mechanism and his predicted extinction of Islamic law of inheritance because many Muslims preferred customary law. Through content analysis and historical approaches, the author found that the inclination of thought in Mundu’s Islamic law of inheritance was based on the Shāfi‘ī school with a clear different point that constitutes its specific and evident contribution. The manuscript included schedules (tables) containing concise formulas that were not contained in any other works of Shāfi‘ī school and that could be used as a guide to facilitate beginners in learning Islamic law of inheritance. This article therefore contributes to the study of the history of Islamic law by providing evidence of the establishment of strong ideas and thought on Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom and Judge of the Kubu Court from 1907 to 1957.
[Artikel ini menganalisis sebuah manuskrip tentang hukum waris Islam, berjudul “Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ”, karya Ismail Mundu.
Manuskrip ini disusun atas keprihatinan terhadap kesulitan-kesulitan yang dialami murid-muridnya dalam memahami mekanisme pembagian
waris Islam dan ramalan kepunahan ilmu waris tersebut karena sebagian masyarakat Muslim lebih mengutamakan hukum adat. Melalui studi analisis isi dan pendekatan sejarah, penulis menemukan bahwa kecenderungan pemikiran hukum waris Islam Mundu berdasarkan pada mazhab Shāfi‘ī dengan perbedaan jelas yang merupakan kontribusinya yang spesifik dan nyata. Karya tersebut menyediakan jadwal (tabel) yang berisi rumus-rumus ringkas yang tidak terdapat dalam karya-karya mazhab Shāfi‘ī lainnya dan dapat digunakan sebagai pedoman untuk memudahkan para pemula dalam mempelajari hukum waris Islam. Oleh karena itu, artikel ini berkontribusi bagi kajian sejarah hukum Islam dengan memberikan bukti berdirinya gagasan dan pemikiran yang kuat tentang hukum waris Islam yang diterapkan oleh Mundu ketika menjabat sebagai Mufti Kerajaan Kubu dan Hakim Pengadilan Kubu (1907-1957).]
Keywords: Islamic law of inheritance, manuscript, Ismail Mundu, Kubu Kingdom.
A. Introduction
This paper is the product of historical research describing the Islamic law of inheritance written by the only ulema (scholar) who was clearly influential in the Kubu Kingdom in 1941,1 namely, Ismail Mundu. Mundu was born in the Sungai Kakap area of Kubu Raya District, West Kalimantan Province, Indonesia, in 1287 AH (1870 AD).
As a prominent scholar in Kubu, the Mufti of the Kubu Kingdom, and a Judge on the Kubu Court,2 Mundu succeeded in rectifying and improving the religious understanding of the people of Kubu Raya and its surrounding communities. Mundu’s spiritual knowledge provided several
1 The Kingdom of Kubu was first established by Sayyid Syarif Idrus bin Abdurrahman al-Idrus in 1780 AD (1199 AH). The kingdom, also known as the Kuala Kubu Country, had eight kings. The last king of the kingdom was Syarif Salih bin Syarif Idrus Alaydrus who died on 28 June 1944 AD. Luqman Abdul Jabbar, Sejarah Kerajaan Kubu (Pontianak: STAIN Pontianak Press, 2013), pp. 15–48.
2 Ismail Mundu was appointed Mufti of the Kingdom of Kubu at the time of King Syarif Abbas (1900-1911 AD), the Sixth King of the Kingdom of Kubu. After the Kingdom ended and returned to the NKRI in 1951, Ismail Mundu was later appointed the Court Judge of the Kubu by Wedana Kubu Pratama (Gusti Jalma) and the former Sultan of Kubu (Syarif Hasan Al Idrus). Baidhillah Riyadhi, Guru Haji Ismail Mundu:
Ulama Legendaris dari Kerajaan Kubu (Kubu Raya: Dinas Kebudayaan, Pariwisata, Pemuda dan Olah Raga Kabupaten Kubu Raya, 2011), p. 37.
contributions, which can be seen from the 29 works he wrote.3 One of them is the work about Islamic law of inheritance which still exists in the form of a manuscript4 entitled Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ.
At least three factors motivated Mundu to write this manuscript.
First, the difficulties encountered by his students in learning and understanding the division of assets under the Islamic law of inheritance.
Second, the Islamic law of inheritance was often abandoned by the people who prioritized customary inheritance law. Third, Mundu was motivated by a hadith that predicted that the ‘ilm al-Farā’iḍ will be the first science to be forgotten and abandoned by the Prophet Muhammad’s followers.5 Therefore, Mundu wrote this treatise as a guideline, primarily to facilitate beginners (mubtadi‘) in learning the Islamic law of inheritance.
In addition to the three motivating factors above, the author’s academic anxiety was also related to the inheritance law used by Muslims in Indonesia today that are not following the Islamic law of inheritance.
For example, Supreme Court Decision No. 16K/AG/2010, which gives inheritance rights to a wife of a different religion from her husband,6 Supreme Court Decision No. 51/K/AG/l999, which gives inheritance rights to other religious heirs,7 and Surabaya Religious Court Decision No.
0141/PDT.P/2012/PA. SBY, which stipulates the wasiat wājibah rights to non-Muslim heirs.8 These decisions are not in accordance with Islamic
3 Luqman Abdul Jabbar, Sejarah Kerajaan, p. 61.
4 Based on the Ordinance Monument STBL 238 of 1931 and Law of the Republic of Indonesia No. 5 of 1992 concerning Cultural Heritage Objects, a manuscript is a text with a minimum age of 50. The manuscript entitled, Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ, is 81 years old.
5 Prophet Muhammad SAW said: “O Abu Hurairah, study the ‘ilm al-Farā’iḍ then teach it. Indeed, the ‘ilm al-Farā’iḍ is half the knowledge that is forgotten by my Ummah and the first knowledge left by my Ummah.” (HR. Ibn Majah). Ibn Mājah, Sunan Ibn Mājah, vol. 2 (Maktabah Syāmilah), p. 908; Luqman Abdul Jabbar, Sejarah Kerajaan, p. 122.
6 Irine Dian Ayu Dewanty, ‘Dasar Pertimbangan Hakim dalam Putusan Mahkamah Agung Nomor 16/K/AG/2010 pada Kasus Waris Berbeda Agama Berdasarkan Pasal 171 Huruf C Kompilasi Hukum Islam’ (Malang: Universitas Brawijaya, 2015); Supriyadi, ‘Rekonstruksi Hukum Kewarisan Anak dari Perkawinan Sirri di Pengadilan Agama’, Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan, vol. 16, no. 1 (2016), pp. 27–42.
7 Rahmad Setyawan, ‘Wasiat Wajibah, Nonmuslim dan Kemaslahatan Hukum:
Studi Putusan MA Tahun 1995-2010’, Asy-Syir’ah: Jurnal Ilmu Syari’ah dan Hukum, vol.
53, no. 1 (2019), pp. 31–57.
8 Febri Silvia Dewi, ‘Analisis Hukum Islam tentang Penetapan Hak Wasiat Wajibah terhadap Ahli Waris Non Muslim (Studi Putusan No. 0141/Pdt.P/2012/PA.
Sby)’, Premise Law Jurnal, vol. 6 (2015), pp. 1–12.
law of inheritance; namely, heirs being of different religions constitute one of the reasons for denying an inheritance.9
Of the philological research discusses the Islamic family law in West Kalimantan, only one, namely a thesis written by Didik M. Nur Haris at the University of Malaya in 2011 uses philological research to discusses Islamic family law in West Kalimantan, let alone research that deals with the Islamic law of inheritance in the Kubu Kingdom.10 The author found a few additional philological studies, but they focus on other aspects. These works include a study by Baidhillah Riyadhi,11 Wajidi Sayadi,12 and Hermansyah, et al.13
Based on the phenomenon and some previous studies that have been mentioned above, the Islamic law of inheritance contained in the manuscript Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ is ripe for discussion because it has never been researched before. This article reveals the practice of Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom in 1907-1950 and Judge of the Kubu Court 1951-1957. There are three primary objectives to achieve in this paper: First, to find out the description of the Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ manuscript; second, to describe the mechanism of asset distribution explained in detail in this manuscript describes the Islamic law of inheritance used by Mundu as the Mufti of the Kubu Kingdom and the Kubu Court’s judges 1907-1957; and third, to analyse the inclination of thought in the inheritance law in this manuscript of the Shāfi‘ī school
9 Prophet Muhammad SAW said: “Muslims do not inherit from unbelievers, and unbelievers do not inherit from Muslims.” (Narrated by Bukhari, Kitāb al-Farā’iḍ, chapter xxvi, hadith no. 6764). Although explicitly the decisions contradict Islamic law, the judge in deciding the case used an approach to applying Islamic legal reasoning to emphasize Islamic law’s objectives (maqāṣid al-sharī’ah). Ahmad Rofii, ‘Whither Islamic Legal Reasoning? The Law and Judicial Reasoning of The Religious Courts’, Journal of Indonesian Islam, vol. 8, no. 2 (2014), p. 235.
10 Didik M. Nur Haris, ‘Kitab Jadual Nikah Karya Isma’il Mundu: Teks dan Analisis’, Masters (Malaysia: University of Malaya, 2011), http://studentsrepo.um.edu.
my/5109/, accessed 23 Jul 2022.
11 Baidhillah Riyadhi, Fiqh Melayu: Telaah atas Kitab Qonun Melaka (Pontianak:
Majelis Adat Budaya Melayu Kalimantan Barat, 2008).
12 Wajidi Sayadi, ‘Studi Naskah Mukhtashar al-Manan ‘ala al-Aqidah ar-Rahman (Konsep Pemikiran Kalam Syekh Guru Haji Islami Mundu’, Proceedings International Conference on Nusantara Manuscript (Pontianak: Pontianak Press, 2015), p. 95.
13 Hermansyah et al., Tafsir Kontekstual dan Eksistensi Perempuan serta Implikasinya terhadap” Karya H. Muh. Shaleh dan H. Khairuddin (Guru Sultan Tsafiuddin II Sambas) (Pontianak: STAIN Pontianak, 2012).
and comes with a schedule (table or chart), a characteristic of Islamic law of inheritance in this manuscript compared to other Shāfi‘ī fiqh literature.
Additionally, the Islamic law of inheritance in this manuscript is the first body of knowledge that could be forgotten and left behind by Prophet Muhammad’s followers and is one of the scientific treasures made by Indonesian scholars, which is of high value and essential to preserve. Unfortunately, the wealth of these treasures has often been overlooked by researchers and reviewers of Islamic studies in Indonesia, especially in West Kalimantan.
B. The Islamic Law of Inheritance and Local Writings
The Islamic law of inheritance is the pandect and a calculation mechanism, through both of which we can determine the division of estate assets by inheritance. In Islamic literature, this provision is known as the ‘ilm al-farā’iḍ or ‘ilm al-mīrāth.14 The provision of the inheritance distribution system has been considered by the majority of Muslim jurists and agreed by the four Sunnī schools of thought to be absolute.
Its provisions are very detailed described in Sharia. Western scholars, however, oppose the view of the majority of Muslim jurists. They argue that the provisions in the ‘ilm al-Farā’iḍ are the product of a complex social history spanning three centuries.15 Coulson argues that the Muslim community’s Islamic inheritance system reinforces the customary law system that the Prophet Muhammad tried to reform after the revelation of verses on inheritance in the Qur’an.16 Kimber, for example, argues that the inheritance system closer to the Qur’an is the Islamic law of inheritance of Shī’ī than Sunnī law.17
This Sunnī inheritance system was practiced for almost one millennium (from the 9th to the 19th century) by Muslim societies without modification. In the early 19th century, the ‘ilm al-Farā’iḍ began to be reformed by several Muslim countries due to the Muslim extended family system’s disintegration into a nuclear family. In Wahib’s notes, Sudan
14 Wahbah Al-Zuḥailī, Al-Fiqh al-Islāmī wa Adillatuhu, vol. VIII (Beirut: Dār al-Fiqr, 1985), p. 243.
15 David S. Powers, Studies Qur’an and Hadith: The Formation of the Islamic Law of Inheritance (Bekerley: University of California, 1986), pp. 13–4.
16 N. J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1978), p. 220.
17 Richard Kimber, ‘The Qurʿanic Law of Inheritance’, Islamic Law and Society, vol. 5, no. 3 (1998), pp. 291–325.
was the first country to reform its Islamic law of inheritance by Judicial Circular No. 24 of January 1921 on missing persons (mafqūd). Sudan then issued Judicial Circular No. 26 of 3 February 1925 regarding a husband or wife’s right to inherit all of the testator’s assets if there are no other living heirs. In the same year, Egypt also issued Judicial Circular No. 28 of 1925 regarding a widow’s right to inherit all assets through restitution (rādd) if there are no other living heirs. During its development, the provisions regarding widows’ rights were codified in Egyptian Law No.
77 of 1943 on inheritance.18
These reforms carried out by Sudan and Egypt inspired several other Muslim countries to do the same with their inheritance systems, including Indonesia. In Indonesia, the Islamic law of inheritance was only codified in 1991 through Presidential Instruction (Inpres) in 1991 concerning the Compilation of Islamic Law (Kompilasi Hukum Islam, KHI). Before 1991, the Muslim community distributed their inheritances based on laws established by the Islamic Kingdom in the archipelago19 and the rules that were alive in the community, be it customary law or Islamic law. The provisions for the distribution of inheritance are scattered throughout the archipelago in the form of manuscripts, both of which have been digitized and those that are still scattered amid society. Based on Ridwan Bustaman’s records, 2,203 religious texts were successfully digitized by the Research and Development Center for Literature and Religious Treasures, Research and Development Agency, and Education and Training Ministry of Religion from 2008 to 2016, including texts on Islamic inheritance.20 Aside from these, there are more than 26,000 religious manuscripts by archipelago scholars at Leiden University, around 10,300 National Libraries,21 not to mention manuscripts stored in Regional Libraries and other countries including the Netherlands, Germany, Malaysia, England, France, Russia, etc.22
18 Ahmad Bunyan Wahib, ‘Reformasi Hukum Waris di Negara-Negara Muslim’, Asy-Syir’ah: Jurnal Ilmu Syari’ah dan Hukum, vol. 48, no. 1 (2014), pp. 29–38.
19 Anis Masykhur, ‘Titik Singgung Hukum Islam dengan Hukum Adat pada Naskah Perundang-Undangan Kerajaan Islam di Nusantara’, Al-Manahij: Jurnal Kajian Hukum Islam, vol. 14, no. 2 (2020), p. 296.
20 Ridwan Bustamam, ‘Eksplorasi dan Digitalisasi Manuskrip Keagamaan:
Pengalaman di Minangkabau’, Jurnal Lektur Keagamaan, vol. 15, no. 2 (2017), p. 447.
21 Keputusan Direktur Jenderal Pendidikan Islam Nomor 7177 Tahun 2017 tentang Petunjuk Teknis Bantuan Program Penelitian Tahun Anggaran 2018, p. 9.
22 Henri Chambert-Loir and Oman Fathurahman, Khazanah Naskah: Panduan Koleksi Naskah-Naskah Indonesia Sedunia – World Guide to Indonesian Manuscript Collections,
Based on the author’s search results, only a few scholars have reviewed the manuscripts on Islamic inheritance. Alifudin, Chaer, and Suud23 discussed the Islamic law of inheritance in Buton in the Kitāb Farā’iḍ by Sultan Muhammad Idrus Qaimuddin in 1955. Harahap and Syarif studied the manuscripts of al-Qawānīn al-Shar’iyyah and Shamsūrī fī al-Farā’iḍ along with 11 other writings of Sayyid Usman bin Abdullah,24 which became references to qādhi in the Religious Courts (Mahkamah Shar’iyyah) and the codified Islamic family law in KHI.25 Yakin examined the LOr5626 manuscript from the Register of the Qādhi Court of the Banten Sultanate 1527-1813. The case of inheritances in the two archives was determined by Kiyahi Pēqih Najmuddin based on classical fiqh norms.26 The texts that the authors described above reveal the Islamic law of inheritance used by the Muslim community before adopting the KHI.
Regarding the subject in this writing, the author examines Majmū‘
al-Mīrāth fī Ḥukm al-Farā’iḍ written by Mundu in 1941. This manuscript reveals the practice of Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom in 1907-1950 and Kubu Court Judge in 1951-1957. The detailed Shāfi‘ī schools’ manuscripts written by Mundu also include schedules of asset distribution that can make it easier for beginners to learn ‘ilm al-Farā’iḍ. According to Masykur, one of the factors for many religious texts in the archipelago, including the manuscripts in this paper, applied the Dutch government’s theory of receptie based on the recommendation of C. Snouck Hurgronje.
Although Indonesian Muslim scholars claimed that the view of receptie harmed Islamic law,27 the colonial policy positively impacted manuscript
1st edition (Jakarta: Yayasan Obor Indonesia, 1999), pp. 203–43.
23 Muhammad Alifudin, Moh. Toriqul Chaer, and Fitriah M. Suud,
‘Contextualization of the 19th Century Islamic Law in Buton (A Study on Sultan Muhammad Idrus Qaimuddin Thought about Mawaris)’, Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan, vol. 20, no. 2 (2020), pp. 277–8.
24 Christiaan Snouck Hurgronje, Verspreide Geschriften (K. Schroeder, 1923), p.
285.
25 Radinal Mukhtar Harahap and Fajar Syarif, ‘Jâwî Reference in Islamic Law Compilation: An Introduction to al-Qawânîn al-Syar‘iyyah by Sayyid Usman’, Journal of Contemporary Islam and Muslim Societies, vol. 4, no. 2 (2021), p. 185.
26 Ayang Utriza Yakin, ‘The Register of the Qadi Court “Kiyahi Pĕqih Najmuddin” of the Sultanate of Banten, 1754-1756 CE.’, Studia Islamika, vol. 22, no.
3 (2015), p. 462.
27 Euis Nurlaelawati, Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts (Amsterdam: Amsterdam University Press, 2010), pp. 47–8.
preservation. The Dutch government seemed to increase further the copying and codification of the manuscripts scattered throughout the archipelago. This policy is evidenced by the number of manuscripts found by researchers in the late 19th to early 20th centuries,28 including the manuscripts that form the basis of this article.
C. Manuscript on the Islamic Law of Inheritance in Kubu Kingdom
1. Biography of Ismail Mundu
The full name of Ismail Mundu was Sheikh Ismail ibn Abdul Karim al-Bugisiy al-Puntiany. The writing of the manuscript entitled, Majmū‘
al-Mīrāth fī Ḥukm al-Farā’iḍ, was born from a marriage between a Mursyid Thariqah Abdul Qadir Jailani who was of ethnic Bugis, and a woman named Zahra (Wak Soro) from the Kakap Region of West Kalimantan in 1287 AH (1870 AD) in the Sungai Kakap area, Kubu Raya District, West Kalimantan Province.
Mundu was a descendant of King Suwito from the Kingdom of Gowa in South Sulawesi. Islam became the official religion in the Kingdom of Gowa during the reign of I Mangarangi Daeng Manrabia, who later became Sultan Alauddin. Previously, Mangku Bumi Malingkang Daeng Manyanri whose title was Sultan Abdullah Awalul Islam had also embraced Islam. He was appointed Mangku Bumi of the Kingdom of Gowa because when he was crowned King of Gowa, Sultan Alaudin was seven years older. According to H. Rival bin H. Abbas, as quoted by Baidhillah Riyadhi, from this Islamic empire, King Sawitto, the ancestor of Mundu, was born.29
In his childhood, Ismail Mundu was often just called Mundu. In his youth, too, he appeared to be an obedient child in practicing Islam’s teachings. At the age of seven, Mundu studied with his uncle (his mother’s younger brother) named H. Muhammad bin H. Ali. Given his intelligence, Mundu succeeded in completing the recitation of the Qur’an perfectly within seven months. Furthermore, Sheikh Abdul Karim (Mundu’s father) sent him to study religion with a great scholar in his time called H. Abdullah Ibn Salam, also known as H. Abdullah Bilawa. He had the
28 Anis Masykhur, ‘Blessing in Disguise Teori Receptie: Dampak Teori Receptie pada Tradisi Penyalinan dan Penulisan Ulang Manuskrip Hukum Adat dan Undang- Undang Kerajaan Islam Nusantara’, Istinbath, vol. 19, no. 2 (2020), pp. 240–1.
29 Baidhillah Riyadhi, Guru Haji Ismail Mundu, p. 16.
title “Ulama Batu Penguji” who lived in Sungai Kakap Village, Pontianak District. After H. Abdullah Ibn Salam died, Mundu continued to study religion with Sayyed Abdullah Azzawawi, Tuan Umar Subawa, and Tuan Makabaro (Puang Lompo).30
At the age of 20, Mundu performed the Hajj and studied with Arab and Malay scholars in the Holy Land. After acquiring enough knowledge, Mundu then returned home around 1904 and practiced the knowledge he had received from his teachers. Three years later, in 1907, Mundu gained King Syarif Abbas’s trust (the Sixth King in power from 1900- 1911) to serve a mufti. After the end of the Kubu Kingdom, which was integrated into the Unitary State of the Republic of Indonesia (NKRI) in 1951, Ismail Mundu was once again trusted to be appointed as Judge of the Kubu Court.31
2. Description: Physical and Substantive
This manuscript is entitled, “Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ.”
The title of the manuscript is printed on the cover and page of the opening remarks. The manuscript was written on 2 Dhul Hijjah 1360 AH/20 December 1941 AD. Based on that date, the text is approximately 83 Hejira years (1443-1360=83) or 81 Gregorian years (2022-1941=81).
The script uses the Jawi alphabet or more familiar with the term Arab Malay alphabet. This manuscript does not have a number, and it comes from the Teluk Pakedai Region, Kubu Raya District, West Kalimantan Province. The original manuscript owner was Ummi Albah, while the photocopied version is owned by H. Rifa’i Abbas, which has been preserved neatly and well in the storage cabinet of each owner of the manuscript.
The manuscript is 30.4 cm long and 20.4 cm wide, with the paper’s width containing the written contents measuring 17.2 cm. Its thickness measures 0.4 cm. The top margin is 2.1 cm, the bottom margin 2.2 cm, the right margin 1.95 cm, and the left margin 1.3 cm. The material used
30 Baidhillah Riyadhi, Guru Haji Ismail Mundu, pp. 19–22.
31 Luqman Abdul Jabbar, Sejarah Kerajaan, pp. 49–51; After independence, Indonesia officially recognized the Dutch Legislation Body’s Accumulation, including the Law of 1882 and 1937, which established Islamic Courts in Java, Madura, and South Kalimantan. The Islamic court system at that time was separated for years. After the 1951 Statute was published, it did not explicitly ratify the existence of an Islamic Court.
This provision became the basis for the emergence of a uniform national system of Islamic Courts. Mark E. Cammack and R. Michael Feener, ‘The Islamic Legal System in Indonesia’, Pacific Rim Law & Policy Journal, vol. 21, no. 1 (2012), pp. 16–7.
as a base for script writing is plain paper. The manuscript cover is brown, and the contents are on cream coloured paper. The script is written using black ink. The letter size is ± 4 mm with the khāṭ naskhī font mixed with khāṭ riq‘ah. It has 24 pages. The script content has a maximum of 30 lines and a minimum of 27 lines, on title page, one page of opening remarks, one page of closing remarks, and two pages of male and female inheritance calculations.
The manuscript was written by hand. It was written recto and verso with the placement of writing from right to left. It includes page numbers located in the middle of the pages (the term used in Microsoft Word being top of page plain number 2). Whereas the cover, introduction, and schedule of inheritance division consist of two sheets that do not have page numbers.32
The original manuscript’s condition remains relatively good. The manuscript’s physical condition is still intact. It can still be read clearly, although some words and letters are illegible because the physical text was damaged by termites. The contents in the manuscript are completed with a schedule (table). The tables are used to make it easier for readers to understand the written narrative. Additionally,, there are two pages of tables that explain the division of assets for each heir. In my opinion, this schedule is the characteristic that distinguishes Ismail Mundu’s inheritance law from the Islamic law of inheritance contained in some fiqh literature of Shāfi‘ī school. This manuscript reveals the practice of Islamic law of inheritance applied by Mundu when he served as Mufti of the Kubu Kingdom in 1907-1950 and Judge on the Kubu Court in 1951-1957.
D. Principles of Islamic Law of Inheritance and Chart of Detailed Mechanism of Distribution in Mundu Manuscript: A Practical Contribution
This sub-discussion describes the basics of the Islamic law of inheritance, including the rights to inheritance, various heirs and their respective divisions, and methods for determining the origin of the issues.
The explanation of the basics of Islamic law of inheritance in this sub- discussion clarifies for readers the inheritance distribution mechanism described in detail by Mundu and practiced in his manuscript’s table form. Apart from that, the author links this sub-discussion with the following discussion to look at Mundu’s tendency to be of the Shāfi‘ī
32 Luqman Abdul Jabbar, Sejarah Kerajaan, p. 57.
school of thought.
Before dividing testators’ estate assets among their heirs, a dead person’s obligations of the inheritance is first fulfilled. According to Mundu, there are three obligations related to inheritance (al-huqūq al- muta‘alliqah bi al-tirkah): first, the cost of caring for the corpse, including white cloth, covers the corpse, baths, carrying, and burial; second, payment of debts; and third, fulfilling the will of the deceased with a maximum of one-third (1/3).33 In the manuscript, Mundu criticized most of the heirs who received inheritance who did not care about matters related to the deceased’s obligations.34
Regarding the third obligation relating to the inheritance that the author described above, there are modifications made by several Muslim countries, known as wasiat wājibah.35 In Indonesia, this wasiat wājibah applies parents of adopted children. Meanwhile, countries like Egypt (1946), Syria (1953), Morocco (1958), and Iraq (1963) applied wasiat wājibah in the granting of grandfather’s inheritance to orphaned grandchildren, even though a deceased heir’s child (grandchild of the testator) is still alive. However, Syria and Morocco limit it to the grandsons of a son.36 In Pakistan and Bangladesh, bequeathing a grandfather’s inheritance to orphaned grandchildren is known as a substitute heir, which is to directly
33 The most famous reference describing a maximum of one-third for a will is the hadith narrated by Sa‘ad bin Abī Waqqas. In the hadith, the Prophet Muhammad did not approve of Sa’ad who wished to leave his wealth as much as 2/3. Then there is a “bargain,” which finally allows a will to a maximum of 1/3 of the inheritance. In the hadith, there is also an impossibility for the heirs to obtain inheritance through a will. The inability of the heirs to receive a will was rejected by David S. Powers subtly.
Using the backward projection theory, one way to prove the hadith used in the West, according to the hadith Powers used mainly by Sunnī Ulama, is not sourced from the Prophet Muhammad. Asep Sugiri, ‘Wasiat untuk Ahli Waris: Kritik Ekstern dan Intern Autentisitas Hadis-Hadis Larangan Wasiat untuk Ahli Waris’, Al-Jami’ah: Journal of Islamic Studies, vol. 42, no. 2 (2004), pp. 467–70; Samsul Hadi, ‘Pembatasan Wasiat sebagai Bentuk Keadilan Hukum Islam’, Al-Ahwal: Jurnal Hukum Keluarga Islam, vol.
9, no. 2 (2017), p. 175.
34 Ismail Mundu, Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ (Teluk Pakedai, 1941), p.
muqaddimah.
35 Ahmad Rofiq defined wasiat wājibah as an action taken by a judge as a state apparatus to force a deceased person’s compulsory will, given to parents and adopted children with a maximum limit of one-third of the inheritance. Ahmad Rofiq, Hukum Islam di Indonesia (Jakarta: PT RajaGrafindo Persada, 2000), p. 462.
36 J. N. D. Anderson, ‘Recent Reforms in the Islamic Law of Inheritance’, International & Comparative Law Quarterly, vol. 14, no. 2 (1965), pp. 358–9.
put the orphaned grandchildren in their parents’ place.37 In Indonesia, the transfer of such property is known as the substitute heir (plaatvervuling).
After the heirs fulfil the three obligations related to the inheritance, the inheritance can be distributed and owned individually. Regarding the various heirs (’anwā’ al-wārithīn), Mundu divided them based on gender into two, namely male and female heirs. Male heirs are 15 people, namely sons, father, husband, grandsons, grandfathers, siblings, consanguine siblings, uterine siblings, sons of siblings, sons of consanguine siblings, uncles, consanguine uncles, sons of uncles, sons of consanguine uncles, and mu‘tiq.38 Meanwhile, there are 10 female heirs, namely daughters, mother, wife, granddaughters, the grandmother from the father’s side, who is excluded by mother and father, and grandmother from the mother is who is excluded by mother, sisters, consanguine sisters, and mu‘tiqah.39 If all heirs are still alive, only five people receive the inheritance, biological children, father, mother, husband, and wife.40
After there are a testator and an heir, the inheritance division can use substantial portions (furūḍ al-muqaddarah), ‘aṣābah, and dhawī al-’arḥām.41 Furūḍ al-muqaddarah refers to the parts that have been determined by the shara‘ for certain heirs in the division of inheritance. These portions are what the heirs will receive based on the relationship of kinship. There are six required compulsory and specified divisions in the Qur’an, not to be added to it and not be deducted from it, unless there is a problem of ‘aul (return of residual property) and rādd (granting of residual property).42
First, heirs who receive half (1/2) of an inheritance, namely, husbands who do not leave behind children or grandchildren, daughters,
37 Lucy Carroll, ‘Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan’, Islamic Law and Society, vol. 5, no. 3 (1998), p. 446.
38 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 24.
39 On page 1 of the manuscript, Mundu divides female heirs into ten people.
Ismail Mundu, Majmū‘ al-Mīrāth fī.
40 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 3; Islamic law of inheritance is claimed to be much influenced by patriarchal culture, which is more beneficial to male heirs than female heirs in all matters. However, one example states that the Islamic law of inheritance also favored female heirs on one side. For example, a daughter in a particular condition can inherit together with their daughters, while male heirs cannot. This condition shows that the Islamic law of inheritance pays attention to women’s rights.
Jasni bin Sulong, ‘Inheritance Law for Women: Islamic Feminism and Social Justice’, Journal of Islamic Studies and Culture, vol. 3, no. 1 (2015), pp. 11–2.
41 M. Zubair et al., ‘The Laws of Inheritance in Islam’, Journal of Basic and Applied Scientific Research, vol. 4, no. 8 (2014), p. 86.
42 Ismail Mundu, Majmū‘ al-Mīrāth fī, pp. 3–4.
granddaughters from sons, uterine sisters, and consanguine sisters.
Second, heirs who receive a quarter (1/4) of an inheritance are husbands who leave behind children or grandchildren and wives who do not leave behind children or grandchildren. Third, heirs who receive one-eighth (1/8) of an inheritance are wives or two or more, and there are children or grandchildren of sons. Fourth, heirs who receive two-thirds (2/3) of an inheritance, namely, two daughters or more, two grandchildren of a son or more, two full sisters or more, and two consanguine sisters or more. Fifth, heirs who receive one-third (1/3) of an inheritance, namely two uterine siblings or more, both male and female, and the mother has no children and grandchildren, nor does she have two siblings or more.
Sixth, heirs who receive one-sixth (1/6) of an inheritance, namely, father (if he has children or grandchildren), grandfather (if he has children or grandchildren), mother (if she has children or grandchildren or two siblings), granddaughter of a son one or more and there is a consanguine daughter with a full sibling.
In addition to inheriting estate assets by obtaining a definite share, heirs can also inherit by receiving the remaining portion (‘aṣābah), which starts from the order of nasab; children (and so on), father (and so on), full brothers, consanguine brothers, children of full siblings, children of consanguine siblings, uncles, consanguine uncles, sons of uncles, sons of consanguine uncles. If to none of those, as mentioned earlier, then the inheritance shall be bequeathed to the bait al-māl. Provision of inheritance to the bait al-māl is on the condition that the bait al-māl can use it according to Shari’ah. Otherwise, it shall be given to a trustee who can distribute the estate on the path of virtue for all Muslims or be given to the poor.43
After the elements of the division of inheritance have been fulfilled, then to divide the inheritance, we need to know in advance the Origin of the Problem (OP) and the method of determining the origin of the problem. The goal is to find the smallest number that can produce an integral part without fractions (inkisār). The origin of the problem in the ‘ilm al-Farā’iḍ is divided into seven, namely 2, 3, 4, 6, 8, 12, and 24.
Besides, there are also problems that can be added from the seven uṣūl (above) to 3.44 First, the origin of the problem 6. The origin of problem 6 is divided into 4, which is added to be 7 (6 + 1 = 7), added to be eight (6 + 2 = 8), added to be nine (6 + 3 = 9), and added to be ten (6 + 4 = 10). Second, the origin of the problem 12. The origin of problem 12 is
43 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 3.
44 Ismail Mundu, Majmū‘ al-Mīrāth fī, pp. 11–4.
divided into three, namely added to be thirteen (12 + 1 = 13), added to be fifteen (12 + 3 = 15) and added to be seventeen (12 + 5 = 17). Third, the origin of the problem 24. There is only one origin of problem 24, namely, added to be twenty-seven (24 + 3 = 27).
Meanwhile, the method of determining the origin of the problem is divided by four. The first is tamāthul. Tamāthul means ‘two together.’
Accordingly, the origin of the problem is one of them. The second is tadākhul. Tadākhul means ‘enter.’ If the large number is twice that of existing or more numbers, then it is called tadākhul. The origin of tadākhul problem is a bigger problem. The third is tawāfuq. Tawāfuq means that two heirs agree on nisf (1/2) or rubu‘ (1/4) or thuluth (1/3). For example, between 6 and 8, half of 6 (3) multiplied by 8 equals 24, or half of 8 (4) multiplied by 6 equals 24. Tawāfuq, the origin of the problem is one that comes from the multiplication of half of the other. The fourth is tabāyun.
Tabāyun means ‘obviously different,’ so the origin of the problem is the result of the multiplication between the two numbers and between them cannot be divided.45 If the division of inheritance to each heir is not a round number, it is necessary to perform taṣḥīḥ al-mas’alah.46
E. Shāfi‘ī Orientation and Characteristics in Ismail Mundu’s Islamic Law of Inheritance
The inclination of thought in Mundu’s Islamic law of inheritance in this manuscript is based on the Shāfi‘ī school. This orientation can derived from the emphasis that he delivered himself on the first page of the manuscript.
“I call this treatise (Majmū‘ al-Mīrāth fī Ḥukm al-Farā’iḍ) on the mazhab of our Imām Shāfi‘ī may Allah be pleased with him, to make it easier for the beginners to understand the problem and explain to others. And I hope that Allah Ta’ala will give His blessings by His keeping me and those who read it from Satan that is condemned.”47
Mundu’s Islamic law of inheritance based on the Shāfi‘ī school of thought can be seen when he explained the rights to inheritance, various heirs, furūḍ al-muqaddarah, methods of determining the origin of the problem, and cases on dividing an inheritance. More clearly, when Mundu positioned himself in the discourse on several issues of division
45 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 15.
46 Taṣḥīḥ al-mas’alah is specifying the smallest number as the origin of the problem, which can produce an integer without any fractional number. Shauqī ‘Abduh Al-Sahī, Aḥkām al-Mawārith (Bairut: Dārul Hikmah, 1988), p. 357.
47 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 1.
of Islamic inheritance, there were differences of opinion (ikhtilāf) in them, such as giving the legacy to the bait al-māl if there are no heirs, the gharrawain or ‘umariyatain case, the ḥimāriyyah or musyārakah case, the ’akdāriyyah case, the minbāriyyah case, the yatimiah case, the case of inheritance in which both testators die, the khuntha inheritance case, and the munāsakhah case.
The first clue that Mundu’s Islamic law of inheritance’s concept is based on the Shāfi‘ī school discusses the rights to inheritance. According to Mundu, there are three rights to inheritance. First, the cost of caring for the body includes white cloth to cover the corpse, bath, carrying, and burial. Second, paying the debt. Third, fulfilling the will of the deceased with a maximum limit of one-third (1/3).48 In the case of the prohibition of granting the inheritance to heirs with a provision of a maximum of 1/3 of the inheritance (tirkah), only Egypt, Sudan, and Iraq allow the granting of the estate to heirs without the consent of all heirs.49 Whereas Indonesia allows it, provided that there must be agreement from all heirs as set forth in Article 195 paragraph 3 of the Compilation of Islamic Law.
Shāfi‘ī school scholars agreed that the costs of caring for bodies, paying debts, and fulfilling the would include the rights to inheritance, including Imām Shāfi‘ī.50 These scholars differed on the details of the body’s treatment, the heirs’ obligations to pay off debts, and the order of the rights to which priority should be carried out in advance of the others. The majority of the scholars of Mālikī, Shāfi‘ī, and the famous views of the Hanafī school of thought argue that debt obligations of the estate should be the first right to be paid. On the contrary, the Hanbalī School and one of the Hanafī School’s views put the testator’s dead body’s care as the first right that must be fulfilled immediately. Mālikī and Shāfi‘ī schools argue that virtue is made in the context of how the inheritance is spent and does not intend to slow down the handling of the corpse.
If a person dies and does not leave any estate behind, then the cost of managing the corpse becomes the obligation of another heir who can afford it. If that heir cannot afford it, it is charged to all people whose
48 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. Muqaddimah.
49 Sri Wahyuni, ‘Pembaharuan Hukum Keluarga Islam di Negara-Negara Muslim’, Kosmik Hukum, vol. 11, no. 1 (2011), p. 218.
50 Andi Asdar Yusuf, ‘Controversy of Islamic Law on The Distribution of Inheritance to the Heirs of Different Religion’, Hunafa: Jurnal Studia Islamika, vol. 14, no. 2 (2017), pp. 383–5; Salako Taofiki Ajani, ‘The Value of Islamic Inheritance in Consolidation of The Family Financial Stability’, IOSR Journal of Humanities and Social Science, vol. 8, no. 3 (2013), p. 17.
law is to become farḍu kifāyah.51
The second clue of the manuscript’s underpinnings is the discussion of various heirs. Mundu divided the number of 15 male heirs and 10 females. If all-male heirs are present, then only five shall inherit the estate. The five heirs are biological children, father, mother, husband, and wife.52 The scholars stipulated that 15 male heirs and 10 female heirs described by Mundu above have the right to receive the testator’s inheritance according to their respective portions. In this case, no one has violated the ijmā‘,53including the Shāfi‘ī School.
The third clue is the discussion of furūḍ al-muqaddarah. Mundu explained the portions of the law according to his manuscript that have been determined by the syara‘ for certain heirs in the division of inheritance consist of six, namely half (1/2), a quarter (1/4), one-eighth (1/8), two-thirds (2/3 ), one-third (1/3), and one-sixth (1/6). The exciting thing about Mundu’s opinion is that if all heirs are not present, then the inheritance shall be given to the bait al-māl. The distribution of the inheritance is under the condition that the bait al-māl can spend it well following the provisions of the Shari’a. Otherwise, then it shall be donated to a just person who can distribute the estate on the path of virtue for the Muslims or be given to the poor.54
Mundu’s opinion concerning giving the inheritance to the bait al-māl is following the thought of Imām Shāfi‘ī, Imām Mālik and the Companion of Zaid bin Thābit r.a. and Ibn ‘Abbas r.a. They argue that if a person dies leaving the inheritance behind and is not survived by any heirs in the category of aṣḥāb al-furūḍ and ‘aṣābah, then the legacy shall be given to bait al-māl to be channeled for the benefit of the Muslim community.55 The
51 Mohd Yusuf Mohd Ali and Ibrahim Basri, ‘Kedudukan Harta Sepencarian Sebagai Hak Harta Peninggalan Dalam Perundangan Islam’, presented at the Seminar Antarabangsa Perundangan Islam dalam Masyarakat Kontemporari 2017 (ISLAC 2017) (UniSZA, 2017), p. 1220.
52 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 3.
53 Komite Fakultas Syariah Universitas Al-Azhar, Hukum Waris, 3rd edition, trans. by Addys Aldizar and Faturrahman (Jakarta: Senayan Abadi Publishing, 2011), pp. 84–7; Mohd Shahril Ahmad Razimi, ‘Concept of Islamic Inheritance Law (Faraid) in Malaysia: Issues and Challenges’, Research Journal of Applied Science, vol. 11, no. 12 (2016), p. 1461.
54 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 3.
55 The arguments used as a basis by Shāfi‘ī to give the inheritance to bait al-māl, not to dhawī al-’arḥām are as follows: First, the reason for giving inheritance rights to an heir is the existence of shar‘ī and qath‘ī texts from the Qur’an or the Hadith of Prophet Muhammad. In this case, there is no one definite and firm text which states that dhawī
provision is also adopted in Article 191 of the Compilation of Islamic Law, specifically that if the testator does not leave anything assets to the heirs as stipulated in Article 174 paragraph (1), then the estate or the remaining estate based on the decision of the Religious Court shall be handed over to the bait al-māl for the benefit of Islam and public welfare.
In contrast to Mundu’s opinion, which has been adopted in the Compilation of Islamic Law in Indonesia, several countries including Egypt, Sudan, and Tunisia have promulgated legal rules that provide residual of the estate (rādd) to the aṣḥāb al-furūḍ.56 Article 30 paragraph (2) of Law No. 77 of 1943 concerning inheritance (qānūn al-mīrāth) of Egypt and the Circular of Law No. 28 of 1925 of Sudan provides remaining estate to husbands or wives, provided that there are no aṣḥāb al-furūḍ and dhawī al-’arḥām. Additional Regulation (1959) Article 143 paragraph (1) of the Tunisian Family Law of 1956 grants the remaining estate to the aṣḥāb al-furūḍ according to their right. In Article 143, paragraph (2) of the Family Law of 1956, Tunisia gives the remaining estate to orphaned grandchildren. However, male heirs who receive the ‘aṣābah bi al-nafs are still alive, such as male siblings, uncles, or the public treasury.
The fourth clue is a discussion of the methodology for determining the origin of the problem. Mundu explained the origin of the problem in the ‘ilm al-Farā’iḍ is divided into seven, namely the origin of the problem 2, 3, 4, 6, 8, 12, and 24.57 Mundu then explained that in determining the origin of the problem, there are at least four methods that can be
al-’arḥām must obtain an inheritance. So, if we give inheritance rights to dhawī al-’arḥām, then it means we provide inheritance rights without being based on solid and robust arguments. Second, Prophet Muhammad, when asked about the inheritance rights of aunts, both from the father’s line and from the mother’s, replied: “Indeed, Gabriel has told me that both of them have no right to receive the inheritance in the slightest.” Other relatives are very close to the heir. If both of them are not entitled to receive an inheritance, nor do other relatives. It is not justified to give inheritance rights to other relatives while the aunt does not receive it. This matter in the world of fiqh is known as tarjīḥ bilā murājjiḥ, which means bāṭil. Third, the inheritance which is not inherited (aṣḥāb al-furūḍ and ‘aṣābah) which is then handed over to bait al-māl will be able to realize the public welfare because Muslims will share the benefits. But on the contrary, if it is left to its relatives, the benefits will be minimal and only enjoyed by the dhawī al-’arḥām. Whereas in the uṣūl fiqh rules, it has been stressed that the public service must be prioritized over personal benefit. Based on these arguments, bait al-māl is preferred to be given the inheritance rather than dhawī al-’arḥām. Beni Ahmad Saebani, Fiqh Mawaris, 1st edition (Bandung: Pustaka Setia, 2009), p. 183.
56 Ahmad Bunyan Wahib, ‘Reformasi Hukum Waris’, pp. 46–7.
57 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 11.
used in calculating inheritance in Islam, namely mumāthalah (tamāthul), mudākhalah (tadākhul), mubāyanah (tabāyun), and muwāfaqah (tawāfuq). The methods described previously are often used by experts of the ‘ilm al- Farā’iḍ in resolving the problem of dividing the inheritance,58 including the Shāfi‘ī school.
The fifth clue is the discussion of cases on the division of inheritance. Ismail Mundu discussed in detail along with examples of cases in the division of inheritance he made in the form of tables (schedules), such as the gharrawain or ‘umariyatain case, the ḥimāriyyah or musyārakah case, the akdāriyah case, the minbāriyah case, the yatimiah case, the case of inheritance in which both the testators died, the khuntha inheritance case, and the munāsakhah case. In classical literature, the debate on inheritance cases has been very dynamic, especially the companions’
disagreements in resolving them, followed by Muslim scholars, including jurists. This paper examines only a few examples of the Mundu’s opinion in his manuscript demonstrate the inclination of his thought is aligned with the Shāfi‘ī School.
1. The Case of Gharrawain
In the gharrawain case,59 for example, his heirs consisted of a father, mother, and husband, or wife. Generally, there are two notable opinions among scholars in resolving this case. The first was the method Ibn
‘Abbas,60 which was adopted by Dāwud al-Ẓāhirī and his disciple Ibn Hazm. According to this opinion, the husband gets 3/6, the mother still receives 2/6, and the father receives 1/6 from all inheritance (see table 1). As a result, the mother receives two portions, while the father receives one portion. This argument is based on the literal meaning of Sūrah Al-Nisā’ [4] verse 11, and the hadith of the Prophet Muhammad stated that the mother is entitled to three times as much as the father in
58 M. Syuhada’ Syarkun, Ilmu Fara’idh; Ilmu Pembagian Waris Menurut Hukum Islam (Jombang, 2008), p. 77.
59 Gharrawain is a form of tathniyah (double) from the word “gharra” which means “brilliant”, because these two problems are prevalent like brilliant stars. This case is also called ‘umariyyatain because it was related to Zaid bin Thābit’s decision and was strengthened by ‘Umar bin Khaṭṭāb who gave the mother the remaining one-third in two cases. In ‘umariyyah I, the heirs consist of a father, mother, and husband. Whereas in ‘umariyyah II, the heirs consist of father, mother, and wife. Amir Syarifuddin, Hukum Kewarisan Islam (Jakarta: Kencana, 2012), p. 133.
60 Richard Kimber, ‘The Qurʿanic Law of Inheritance’, p. 308.
accepting goodness.61
The second was ‘Umar bin Khaṭṭāb, supported by several Companions like Zaid bin Thābit, ‘Uthman bin ‘Affān, Ibn Mas‘ūd, and ‘Ali ibn Abī Ṭālib was adopted by jumhūr ‘ulamā’, including Imām Shāfi‘ī. According to this opinion, the husband receives 3/6, the mother receives 1/6, and the father receives 2/6 from all inheritance (see table 1). The majority trend of scholars interprets that the phrase “fa liummihi thuluth” as having the meaning of the mother gets 1/3 of the residual that is entitled to be inherited by the two heir parents, not 1/3 of all inheritance. Because, if interpreted as 1/3 of the estate, then the phrase
“wa wārithāhu abawāhu” is rendered meaningless. Thus, the comparison of the portions received by the father and the mother remains consistent 2:1, according to the principle “li al-dhakari mithl ḥaẓ al-unthayain.”62 Of these two opinions, Mundu adopted a second opinion, which bequeaths the mother 1/3 of the residual. This second opinion indicates the inclination of Mundu’s thought to resolve the case is the Shāfi‘ī school.
This first case settlement corresponds to Ibn ‘Abbas based on the Qur’an and hadith, and there were no problems in the settlement. The husband gets 3 portions (1/2 of 6), the mother receives 2 portions (1/3 of 6), and the father gets 1 portion of the residual. However, when a comparison is made between the father and the mother’s part, there is a sense of irregularity. The mother receives twice the father’s portion (the mother gets two portions, while the father one portion). These irregularities are due to a violation of principle 2:1 (li al-dhakari mithl ḥaẓ al-unthayain).63
61 Ibn Hazm, Al-Muḥallā (Mesir: Matba‘ah al-Jumhuriyyah Al-‘Arabiyah, 1970), pp. 326–30.
62 Ratu Haika, ‘Bagian Ayah dan Saudara dalam Kewarisan Islam di Indonesia (Perspektif Fiqh, KHI dan Prakteknya di PA dan Masyarakat)’, Mazahib, vol. 10, no.
2 (2012), p. 341.
63 The father’s necessity to receive two portions of what the mother receives follows the principle in Islamic inheritance, namely li al-dhakari mithl ḥaẓ al-unthayain.
Comparison of portion 2: 1 (read: two to one) in Islamic inheritance between men and women is synonymous with the Islamic law of inheritance of the Shāfi‘ī School. This tendency is also seen in the manuscript discussed in this paper and is valid until now.
This provision is evidenced by the Compilation of Islamic Law’s publication by Munawir Sjadzali and Busthanut Arifin, which accommodates these provisions. Andree Feillard,
‘Indonesia’s Emerging Muslim Feminism: Women Leaders on Equality, Inheritance and Other Gender Issues’, Studia Islamika, vol. 4, no. 1 (2014), p. 84; Muhammad Mahsus, ‘Tafsir Kontekstual dan Eksistensi Perempuan serta Implikasinya terhadap Penyetaraan Bagian Waris Laki-Laki dan Perempuan’, Journal of Islamic Law (JIL), vol.
To overcome these irregularities, Umar commented that the mother’s furūḍ of 1/3 was not taken from the entire estate but from the residual after being allotted to the husband. The husband gets three portions (1/2 of 6), the residual is 3 portions. The mother gets 1 portion, which is 1/3 of the residual (3). While the father gets 2 portions of the residual after the mother’s portion has been allotted. The view of the majority, including the Shāfi‘ī School, was adopted by Mundu in his manuscript and codified in Article 178 paragraph (2) of the Compilation of Islamic Law. According to Wahib,64 giving the portion of the mother to receive the portion of thuluth al-bāqy is the ijtihād of the Companions to find a new law that is more in line with the demands of society at that time.
2. The Case of Ḥimāriyah (Musyārakah)
Somewhat different from the gharrawain and the akdāriyah, Mundu also describes the case of ḥimāriyah or musyārakah.65 This case concerns a woman who dies and leaves behind a husband, mother, two or more brothers and sisters (male or female), and a full brother. In resolving this case, there are two notable opinions among scholars.66 The first argument is explained by ‘Umar bin Khaṭṭāb (in the first decision), ‘Ali ibn Abī Ṭālib, ‘Abdullāh bin Mas‘ūd, ‘Ubaiy bin Ka’ab, and Ibn ‘Abbās, as well as the opinion of Imām Abū Ḥanīfah and Imām Aḥmad bin Ḥanbal that full siblings, whether one or more, cannot receive inheritance because the heirs who have a share can undoubtedly spend the estate. So, the husband receives 3/6, the mother receives 1/6, 2 uterine siblings receive
1, no. 1 (2020), pp. 25–44.
64 Ahmad Bunyan Wahib, ‘Reformasi Hukum Waris’, p. 34.
65 Musyārakah etymologically means ‘to associate’. According to the terminology of the ‘ilm al-Farā’iḍ, musyārakah is possible when full siblings are associated with uterine siblings to receive inheritance and their status changes as uterine siblings with the decedent. This case is also called musyārakah, ḥimāriyah, hijāziyah and minbāriyah, because the one who sets the law in this matter was ‘Umar bin Khaṭṭāb who was at the podium.
The musyārakah case was attributed to the Companion of ‘Umar who dealt with this problem based on a request from the full siblings. Zahari Mahad Musa, ‘The Fatwa of a Companion as Sources of Islamic Law in the Specific Cases on Farā’id’, Jurnal Syariah, vol. 20, no. 2 (2012), p. 236; Muhammad Yusron, ‘Penalaran Rasional dan Maslahah:
Ijtihad Umar ibn al-Khattab pada Kasus-Kasus Kewarisan Islam’, Journal of Islamic Law (JIL), vol. 2, no. 2 (2021), pp. 197–223.
66 Muhammad Yusron, ‘Penalaran Rasional dan Maslahah’, pp. 123–6; N. J.
Coulson, Succession in the Muslim Family (Cambridge: Cambridge University Press, 1971), pp. 74–6.
2/3, and full siblings do not receive any share because the inheritance has been allotted to the heirs who receive the portion of aṣḥāb al-furūḍ.
The second argument is explained by ‘Umar bin Khaṭṭāb (in the second decision), ‘Uthman bin ‘Affān, Zaid bin Thābit, and adopted by Imām Mālik, Imām Shāfi‘ī, and Mundu in his manuscript. This second argument indicates the inclination of Mundu’s thought to resolve the case is based on the teachings of the Shāfi‘ī School. Jumhūr al-‘Ulamā’ and Mundu argue that full siblings, one or more, are associated with uterine siblings to receive 1/2 and share it equally. All siblings are considered uterine siblings with the decedent. Because full siblings associated with brothers and sisters together receive 1/3, the full siblings become uterine siblings with the decedent without getting a comparison between men and women. So, the husband gets 9/18, the mother gets 3/18, 2 uterine siblings receive 4/18, and full siblings receive 2/18 due to association with the uterine siblings’ portion.
3. The Case of Akdāriyah
The application of principle 2:1 can also be seen in the akdāriyah case, where the heirs consist of a husband, mother, grandfather, and sister.
There are two arguments to resolve this case.67 Imām Abū Ḥanīfah and Imām Aḥmad explain the first argument. This theory distributes to the husband 3/6, the mother 2/6, the grandfather 1/6, while the sister is deprived of her share (maḥjūb) by the grandfather. The second argument is explained by Zaid ibn Thabit, which was adopted by Fuqahā,68 including Imām Shāfi‘ī and Imām Mālik. This argument distributes to the husband 9/27, the mother 6/27, the grandfather 8/27, and the sister 4/27. This second argument does not prevent the sister who is in the same position as the grandfather, but the divisions between them are based on the principle of 2:1.
Mundu adopted the second of these two opinions, which combined the grandfather’s portion with the sister (muqāsamah). This second opinion indicates the inclination of Mundu’s thought to resolve the case is based on the Shāfi‘ī School. Her husband receives 1/2, her mother 1/3, her grandfather 1/6, and her sister 1/2. The origin of the problem is then 3 to 9 (6 + 3 = 9). The grandfather’s portion is smaller than the part obtained
67 Wahidah, ‘Studi Naskah Fikih Melayu (Risalah Is’af al Raghibin fi ‘Ilmi al Faraidh) Karya Jad Ahmad Mubarak’, Al-Banjari: Jurnal Ilmiah Ilmu-Ilmu Keislaman, vol.
18, no. 1 (2019), p. 41.
68 Wahbah Al-Zuḥailī, Al-Fiqh al-Islāmī wa Adillatuhu, VIII: 342.
by the sister following the opinion of Umar and Ibn Mas’ud described above. Consequently, the grandfather joins the sister (muqāsamah). Their portion was 4, and there were fractional numbers. Therefore, there was tasḥīḥ al-masalah where the origin of the problem was multiplied by juz al-sahm (9x3 = 27), and all parts received by the heirs were also multiplied by the juz al-sahm.69 Her husband receives 9/27, her mother 6/27, her grandfather, and her sister 12/27. This portion of the grandfather and the sister has been based on the principle of 2:1, in which the grandfather receives 8/27, and the sister receives 4/27.
4. The Cases of Minbāriyah and Yatimiyyah
The minbāriyah case consists of three heirs. The origin of the problem is 24. If there is furūḍ of 1/8 for the wife and furūḍ of 1/6 for the pregnant mother, then there is a comparison of tawāfuq. The wifq70 is 6, namely 3 (6 : 2 = 3), then 6 x 8 = 24. Then it was added to 27, with the
“ikhtiyar takdir” in which there were two daughters whose furūḍ was 2/3.
This case is called minbāriyah because ‘Ali ibn Abī Ṭālib decided when he was on the podium.71 This opinion is also followed by jurists, including Imām Shāfi‘ī and Mundu.
Different from the minbāriyah case, yatimiyyah is a case involving two unique conditions. First, the testator left behind the following heirs, a husband and a full sister. Second, the testator left behind the following heirs a husband and a consanguine sister.72 This case is called yatimiyyah because there were two heirs who each took half with the other parts. The origin of the problem is 2. The husband and the full sister/consanguine sister were called the yatimiyyah problem because it is not allowed for two people to obtain half of the other portion. This opinion is followed by the Shāfi‘ī school scholars, including Mundu.
5. The Cases of Munāsakhah and Simultaneous Death
Munāsakhah etymologically means ‘abolish’ and ‘negate.’ Whereas terminologically, munāsakhah is a person who dies before the inheritance
69 M. Syuhada’ Syarkun, Ilmu Fara’idh;, p. 138.
70 Wifq is a number equation that can divide two or more comparisons as there is a ratio of 6: 4. Numbers 6 and 4 can be divided by the third number, which can separate the two numbers, i.e., 2. 6:2=3 and 4:2=2. So, 3 and 2 are called wifq. M.
Syuhada’ Syarkun, Ilmu Fara’idh;, p. 88.
71 Wahbah Al-Zuḥailī, Al-Fiqh al-Islāmī wa Adillatuhu, VIII: 341.
72 Zahari Mahad Musa, ‘The Fatwa of a Companion as Sources of Islamic Law’, p. 169.
is distributed to his/her heirs, and there are one or more of the heirs who also die. In such circumstances, the rights of the decedent to the inheritance are transferred to the heir. It is called munāsakhah because the first problem is transferred to a second problem, or legacy moves from one heir to another.73
Mundu argued that if someone dies (the first decedent) and leaves behind an inheritance before the inheritance can be distributed to each of his/her heirs. The person who inherits the estate also dies, then the method of distribution is to treat the second decedent as if he were still alive when distributing the estate of the first decedent’s heirs. After the portion of the first decedent has been distributed, then the second decedent’s heritage will be distributed to his/her heirs.74 This opinion is followed by Shāfi‘ī school scholars, including Mundu.
One example of the settlement of the munāsakhah inheritance case is the use of comparative mubayanah as follows: First, create problem 1 comprised of heirs of the first decedent, and then distribute the estate until each heir gets their portions. Second, make problem 2, which consists of the second decedent’s heirs, then spread the estate until each heir gets their portions. Third, combine problem 1 with problem 2 in which the origin of problem 1 is multiplied by problem 2, and the result is determined as the Combined Origins of Problem (COP).
The second decedent’s portion in problem 1 is 7, the origin of problem II is 3. So, there is a comparison of 3: 7, which is a mubāyanah.
The origin of problem 1 (24) is multiplied by the origin of problem II (3). The result is set as Combined Origins of Problem, which is 24x3
= 27. The portions of the heirs of decedent 1, multiplied by the origin of the problem II, namely 3 × 3 = 9 and 14 × 3 = 43, and entered in column 1. The portions of the heirs of decedent ii, multiplied by the second decedent in problem i, 1 × 7 = 7 and 2 × 7 = 7 and 2 × 7 = 14, entered in column 2. Finally, the portions in column 1 and column 2 are totalled and entered in the column of the COP (al-aṣl al-jāmi’).75
Unlike the minbāriyah case, the case of simultaneous death applies when two people have a familial relationship or, because of a legal marriage, die simultaneously because of a natural disaster or other disasters, and so on. In this case, Zayd bin Thabit argued that the division of inheritance only applies only to heirs who are still alive. They will
73 Komite Fakultas Syariah Universitas Al-Azhar, Hukum Waris, p. 420.
74 Ismail Mundu, Majmū‘ al-Mīrāth fī, p. 21.
75 M. Syuhada’ Syarkun, Ilmu Fara’idh;, pp. 177–8.
