54 Vol. 18 No. 2 , December 2022
The Implementation of Lineage Determination Methods in Illegal Marriages based on Wahbah Al-Zuhaily in the Determination of Banjarbaru Religious Court
No. 80/Pdt.P/2017/PA.Bjb
Fatimatuzzahro
UIN Prof. K.H. Saifuddin Zuhri Purwokerto e-mail: [email protected]
Hasanudin
UIN Prof. K.H. Saifuddin Zuhri Purwokerto e-mail: [email protected]
Abstract
This article discusses the method of determining lineage in fasid marriages according to Wahbah al-Zuhaily and its application in the Determination of the Banjarbaru PA No. 80/Pdt.P/2017/PA.Bjb regarding the judge's legal considerations in determining the case. Lineage is a family relationship that determines the origin of a child and causes civil law consequences, including inheritance rights, livelihood rights, and so on. Determination of lineage is very important because it is directly related to the family structure. Methods of determining lineage also vary, including through legal or fasid marriage, confession, and proof. In Islam, it is known that marriages that do not meet the legal requirements of marriage are known as fasid marriages. Fasid marriage is not legal. Has no legal status before the occurrence of intercourse. A child from a fasid lineage marriage is still dependent on his father if he meets the requirements in terms of the husband's ability to get pregnant or not, in terms of whether he has a husband or not, and from the minimum period of pregnancy whether he fulfills it or not. The istinbat method used by Wahbah al-Zuhaily is istislah, which is to protect the interests of the child so that his rights are protected. As for the application of Islamic marriage law in court stipulation no.
80/Pdt.P/2017/PA.Bjb the judge is in accordance with and refers to Wahbah al-Zuhaily's opinion as a legal consideration in determining the origin of the lineage of children in fasid marriages through certain conditions that have been exceeded by the applicants.
Keywords : Nasab, Fasid Marriage, Determination of Religious Courts
A. INTRODUCTION
Within the context of descendants’ maintenance, Islam provides the instructions to get married as an effort to maintain the purity of the lineage1. One of the ways to maintain the descendents is by determining the origin of the childrens’ lineage if they are unclear.2 In general, the concept of lineage in Islam, the rules are formulated into Indonesian-style law, which one of them is mentioned in Article 99 paragraph 1 of the Compilation of Islamic Law which reads "Legal children are those who born in or as a result of a legal marriage".3 The formulation of that law refers to the concept of Islamic lineage.
The genealogy of a child with a father should be based on a legal marriage and if the children are not born on the basis of a legal marriage, they only belong to their mother and their mother's family.4 So, it raises the question about how’s the family status of children who born in an illegal marriage. If it is concluded which refers to KHI, the lineage of children from an illegal marriage cannot be attributed to their father.
But what the unique is, in Wahbah al-Zuhaily's opinion is that determining the lineage of a illegal marriage is as same as a legal one, where it can be attributed to a father for maintaining the
1 M. Lutfi Hakim, “Menjaga Kehormatan Sebagai Perlindungan Nasab Perspektif Maqashid Syariah”, Jurnal Nizham, Vol. VIII, No. 1, 2020, 7.
2 Yuni Harlina, “Status Nasab Anak dari Berbagai Latar Belakang Kelahiran (Ditinjau menurut Hukum Islam), Jurnal Hukum Islam, Vol. XIV, No 1, 2014, 10.
3Khisni, Hukum Peradilan Agama (Semarang: Unissula Press, 2011), 188.
4Sakirman, “Telaah hukum Islam Indonesia Terhadap Nasab Anak”, Jurnal Hunafa: Studia Islamika, Vol. 12, No. 2, 2015,”, 11.
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Al-Ahkam 55
childrens’survival, and in the reality it is connsideres as equal with legal married even though the marriage status of both are different.
For its application, it is contained in the decision of the Banjarbaru Religious Court Number 80/Pdt.P/2017/PA.Bjb5, that is legal considerations of judges in determining the case of childrens’
origin in illegal marriages which have different opinion and references. From those academic problems, the author is interested to discuss more deeply about the Implementation of Lineage Determination Methods in Illegal Marriage based on Wahbah Al-Zuhaily in the Determination of the Banjarbaru Religious Court Number 80/Pdt.P/2017/PA.Bjb.
B. RESEARCH METHOD
This research was conducted to find out about how to determine the lineage used by Wahbah al-Zuhaily in illegal marriages. This research type is library research with a normative juridical approach.
The data collection method used by the author is the documentation. The primary data source for this research is the book al-Fiqh al-Islamy wa Adillatuh by Wahbah al-Zuhaily. Meanwhile, secondary data sources are books, journals, or other written works which are closely related to this research. Data analysis method used by the author is descriptive analysis.
C. RESULT AND DISCUSSION 1. The Definition of Lineage
In Indonesia, lineage means descendent, especially from father’s side. Meanwhile, according to the term, lineage is a family relationship where there is a bond occurs between two or more people.6 In another side, Wahbah al-Zuhaily defined that lineage is a strong foundation and basis for the establishment of family relationships due to blood ties because it binds family members. And Amir Syarifuddin argue that lineage is defined as a legal genetic relationship.7 The word lineage (nasab) is mentioned three times in the holy qur’an, it is mentioned in Surah al-Furqan (2): 54, as-Saffat (37): 158, al-Mu'minun (23): 101.
2. The Reasons for Determining the Lineage
There are 2 reasons for determining the lineage, they are: first, in terms of mother's side, because a mother is not only pregnant, whether the pregnancy is due to a legal or illegal marriage, or the result of adultery.8 The second, in the terms of father’s side through three ways, they are legal, illegal marriage and adultery.9
3. Methods for Determining the Lineage a. Through a Legal Marriage
Through legal or illegal marriages, the lineage of children can be attributed to their parents even though the marriages and children births are informally registered with the relevant agencies.10
b. Through the confession or accusation against the children.
c. Through a verification.11
d. There is also the determination of lineage which is debated by the scholars, where they are estimation (qiyafah) and voting (qur'ah).
5 Yulis Prameswari, “Analisis Yuridis Terhadap Penetapan Pengadilan Agama Banjarbaru Nomor 80/Pdt.P/2017/PA.Bjb Tentang Permohonan Asal Usul Anak Hasil Perkawinan Sirri”, Skripsi (Surabaya: UIN Sunan Ampel, 2021), 6.
6Afif Muamar, “Ketentuan Nasab Anak Sah, Tidak Sah, dan Anak Hasil Teknologi Reproduksi Buatan Manusia: Antara UU Perkawinan dan Fikih Konvensional”, Jurnal Al-Ahwal, Vol. VI, No. 1, 2013, 2.
7 Amir Syarifuddin, Meretas Kebekuan Ijtihad Isu-isu Penting Hukum Islam Kontemporer di Indonesia (Jakarta: Ciputat Press, 2005), 198.
8 Muhammad Nashiruddin al-Albani,Tamam al-Minnah fi Ta‘liq ‘ala Fiqh as-Sunnah, terj. Syaikh Abu Abdurrahman Adil bin Yusuf Al-Azazy, (Jakarta: Pustaka as-Sunnah, 2010), 400.
9Andi Syamsu Alam dan Fauzan, Hukum Pengangkatan Anak Perspektif Hukum Islam (Jakarta: Kencana Prenadamedia Group, 2008), 179.
10Wahbah al-Zuhaily, Wahbah al-Zuhaily, al-Fiqh al-Islamy al-Fiqh al-Islamy wa Adillatuh Jilid X, terj. Abdul Hayyie al-Kattani dkk (Depok, Gema Insani, 2008), 38.
11Wahbah al-Zuhaily, Ibid, 38-39.
56 Vol. 18 No. 2 , December 2022 According to Hanafiah scholars, an illegal marriage is a condition in which its pillars and requirements are fulfilled, but one them for being legalized is lost. They consist of: no witnesses, marriage contract, etc.12
An illegal marriage has no legal status before having sex. Hanafi scholars stated that having sex will cause the application of the law occurred, where they are as:13
a. An obligation to pay the bride price, because sexual intercourse has occurred.
b. The lineage of the children is still connected to the husband.
c. The woman in an illegal marriage should have a waiting time (iddah).
d. The illegal marriage actors are still mahram because they are in a family relationship.
5. The Lineage Determination Method in an Illegal Marriage According to Wahbah Al-Zuhaily
Assigning a child's lineage in an illegal marriage is as same as a legal one, because the determination of it can maintain the child's own survival, but it has three requirements:
a. Husbands are among those who are able to impregnate
b. They are truly having sex before married based on Malikiyyah’s opinion.
c. If the woman gives birth after six months or more after they having sex based on Malikiyyah, or before having sex based on Hanafiyyah.
In deciding a case about how to determine the lineage in illegal marriages, Wahbah al- Zuhaily uses the istislah method. This is in accordance with his opinion in the book al-Fiqh al- Islamy wa Adillatuh.
عايض مدعو دلولا ايحلإ اطايتحا ،دجو نإ لجرلا نم دلولا بسن توبث ه
The lineage of children of illegal marriages is assigned to their biological fathers with the aim to give best warranty for their interests. Wahbah al-Zuhaily's opinion is also in line with efforts to maintain Maqasid Shari'ah in the form of protecting oneself and their descendants.14. 6. The Implementation of Wahbah al-Zuhaily's Thought in the Determination of
the Banjarbaru Religious Court Number 80/Pdt.P/2017/PA.Bjb
The determination is a court product which its meaning is not truly trial, but it’s a statement or creation.15the court decisions are basically the implementation of law to an event, in this case it requires the solutions through state authority.16
The focus of the implementation in this case is the legal considerations of judges in determining the cases of children’s origin from illegal marriages, which are described in Decree No. 80/Pdt.P/2017/PA.Bjb. illegal marriage in this determination is polyandry, where women have more than one husband. It has begun before the first applicant Muhammad Arbain, and the second Marina Selviana did unregister married, the second applicant was unregister divorced by her previous husband in 2008 and then they were officially divorced in 2015.
Meanwhile, unregister marriage between the first and second applicant occurred on July, 1st 2012. They had a child named Laudza Bilqis Najla who was on September, 11th 2014.
Administratively, a woman is still a legal wife of her first husband before having an official divorce certificate issued by the Religious Courts. Furthermore, the first and second applicant could request a determination of their children’s origin from the Religious Court to determine that Laudza Bilqis Najla was their legal child.
12Wahbah al-Zuhaily, Ibid, 94.
13 Wahbah al-Zuhaily, Ibid, 107.
14 Wahbah al-Zuhaily, al-Fiqh al-Islamy wa Adillatuh Jilid VII (Beirut: Dar al-Fikr, 1985), hlm. 111.
15 Cik Hasan Bisri, Peradilan Agama di Indonesia, cet. Pertama (Jakarta: RajaGrafindo Persada, 1996), 239.
16Cik Hasan Bisri, Ibid, 235.
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The judge's legal considerations in that case relied his opinion on Islamic and several positive laws. The panel of judges have different point of views in dealing with that case.
Muhlis, SHI., MH. and M. Natsir Asnawi, SHI., M.H. stated the same opinions, they are:
a. The existence of that case needs to be conveyed in syar'i texts related to polyandry marriages. According to the majority of scholars, polyandry is a broken marriage (fasid) so its status is illegal. This was confirmed in the book al- Fiqh al-Islamy wa Adillatuh volume 7, pages 109-111 which was taken over as the Court's opinion.
“Illegal marriage based on Hanafi School is a condition which does not meet one of the requirements for being legal. The types of marriage which are categorized as illegal marriage according to Hanafi School are as follows; 1) having marriage without witnesses; 2) marriage contract; 3) getting married with more than 4 women at one time; 4) marrying two sisters at the same time, marrying the wives and aunts simultaneously either the paternal or maternal aunt; 5) marrying a woman without knowing that her status is still someone else's wife (polyandry); 6) marrying a mahram or the one who are in family relationship even knowing that it is not allowed.”
b. In Islamic law, a child's lineage to his father can be gotten through illegal marriage. The illegal status will be found later, it doesn’t come in the first. The majority of scholars agree that children who born from illegal marriages can be assigned to their fathers. This was confirmed in the Kitab al Fiqh al-Islamy Wa Adillatuh Juz VII page 690 which was later taken over as consideration by the Court as follows:
"Marriage, either legal or illegal, is a cause for determining the lineage in a case.
So, if it is really happened, even though it’s illegal and done traditionally by implementing the certain ways without being registered in the official marriage certificate, it can be determined that the lineage of the children in on their parents, both mother and father.”
Those 2 judges build their opinions on what was written in the book al-Fiqh al-Islamy wa Adillatuh. In another side, a different opinion comes from Mohd. Anton Dwi Putra, SH., M.H. He argues his opinion by relying on the holy Qur'an, on an-Nisa verse 24 which sounds:
ُتاَنَص ْحُمْلاَو َنِم
اَسِ نلا ِء َلِّإ اَم ْتَكَلَم اَمْيَأ ْمُكُن َباَتِك ِٰاللّ
ْمُكْيَلَع لِحَاَو ْمُكَل اَم َءاَرَو ْمُكِلٰذ ْنَأ اوُغَتْبَت اَوْمأِب ْمُكِل َنْيِن ِص ْحُم َرْيَغ
اَسُم َنْيِحِف ْمُتْعَتْمَتْسااَمَف
ِهِب َنُهْنِم َنُه ْوُتاَف َنُهَرُجأ ةَضْيِرَف َلَّو َحاَنُج ْمُكْيَلَع اَمْيِف َض َرَت ْمُتْي ِهِب ْنِم ِدْعَب ِةَضِرَفْلا َنِإ َٰاللّ
َناَك ا مْيِلَع
ا مْيِكَح
“And all married women (are forbidden unto you) save those (captives) whom your right hands possess. It is a decree of Allah for you. Lawful unto you are all beyond those mentioned, so that ye seek them with your wealth in honest wedlock, not debauchery. And those of whom ye seek content (by marrying them), give unto them their portions as a duty. And there is no sin for you in what ye do by mutual agreement after the duty (hath been done). Lo! Allah is ever Knower, Wise.”.17
In this verse, it is clear that it is forbidden to marry a married woman. If it is a kind of illegitimate marriage, it will surely illegal, then it is clear that the child's lineage cannot be relied on by the father.
For verifying whether there is a lineage between a child and his biological father, the Court ordered to verify by using Deoxyribonucleic Acid test or other evidences in accordance with legal provisions. However, due to the high cost, and the economic condition of the applicants which makes it impossible to carry out the test, the Court ordered the applicants
17Tim Penterjemah al-Qur’an Kemenag RI, Al-Qur’an dan Terjemahannya (Bandung: Diponegoro, 2014), 81.
58 Vol. 18 No. 2 , December 2022 After checking the date of birth of the applicant’s children, it was found that the they were born about 2 years after the applicants have had unregister married. It has already fulfilled the minimum elements, that is 6 months of pregnant period. In addition, considering the actual condition of applicant I who is physically or spiritually healthy, applicant I is deemed to have the ability and possibility to have intercourse and cause pregnancy for his wife. It indicated that one of requirements for determining the lineage of a child to his father in an illegal marriage.
The implementation of Wahbah al-Zuhaily's thought in al-Fiqh al-Islamy wa Adillatuh regarding the method of determining lineage in illegal marriages has been applied as a consideration of the judges of the Religious Courts well. They had a disagreement, but in the end, they preferred to grant the applicants' request to legalize their children. The judge's efforts in applying the conditions which should be followed to determine the lineage of children from illegal marriages are also in line with Wahbah al-Zuhaily's thinking, it includes the ability to get pregnant, husband and wife relationship is really occurred and the minimum period of pregnancy from the time that they have never had a sex is fulfilled.
D. CONCLUSION
The way to determine the lineage of a child to his father in an illegal marriage can be done by looking at a husband’s the ability to get pregnant or not, the clarity of having sex before married from their child birth, the minimum period of pregnancy in 6 months. The istinbat method was used by Wahbah al-Zuhaily for exploring the arguments based on al-Quran and Sunnah to be taken into legal form. As for the application of Wahbah al-Zuhaily's thought in Determination No. 80/Pdt.P/2017/PA.Bjb, the panel of judges disagreed in taking the legal considerations. Two judges relied their opinion on Wahbah al-Zuhaily, they stated that the lineage of children in an illegal marriage can be relied on their father, meanwhile the first member judge based his opinion on Al-Qur'an, that is surah an-Nisa verse 24 which impacts the lineage of children in illegal marriages cannot be relied on their father.
E. REFERENCES
al-Zuhaily, Wahbah. Al-Fiqh Al-Islamy Wa Adillatuh. terj. Abdul Hayyie Al-Kattani dkk. Depok: Gema Insani, 2008.
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Al-Ahkam 59
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