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CHAPTER IV ANALYSIS TOWARDS INTERFAITH MARRIAGE ACTORS

Theories regarding interfaith marriage were explained and the facts of all interfaith marriage actors aspets in New Sorowajan Hamlet were thoroughly explored on previous chapters to be opposed both facts and theories. Thus its satisfied to make analysis and present the result according to Islamic law and Indonesian regulation quantitatively. In sociology of law, interfaith marriage between inhabitants of New Sorowajan Hamlet can be justified, because the living law among people of the hamlet requires them to do interfaith marriage, the living law is quite different with the current law. Theory of Sociological Jurisprudence 1 implied that the law and regulation regarding marriage have to accommodate and regulate interfaith marriage clearly and thoroughly so that the people can follow and do not feel confused to face complicated rules. The law is established to create orderliness, justice, and advantage for people, not uncertainty of law. 2 Factually, Indonesian regulations doesnt accommodate interfaith marriage explicitly, so that manipulation and counterfeiting data frequently accompany the trip of interfaith marriage actors. At 1986, Supreme Court (MA) tried to respond peoples anxiety and frequent interfaith marriage among them by publishing the Verdict No. 1400 K/Pdt/1986, it allowed Civil Registration Office (KCS) to carry
M. Karsayuda, Perkawinan Beda Agama, Menakar Nilai-nilai Keadilan Kompilasi Hukum Islam (Yogyakarta: Total Media, 2006), p. 59. O.S. Eoh, Perkawinan Antar Agama dalam Teori dan Praktik (Jakarta: Raja Grafindo Persada, 1996), p. 19.
2 1

69

70 out interfaith marriage,3 nevertheless the verdict is just a jurisprudence, so that its not forceful as basis of law, thus the implication was not all KCS accepted the application of interfaith marriage, and this rejection truly happens on the actors of interfaith marriage in New Sorowajan Hamlet. On the other hand, religions including Islam, which was expected to solve the problem, is also trapped in the same hole. Religion, which has a tight connection with the marriage, can not be a solver of the problems even its tending to prohibit interfaith marriage. In Islam, interfaith marriage is still a dilemma, prohibition and allowance are in the same position. This is the problem which is tried to change especially by contemporary Islamic jurists that its motored by Muhammad Abduh and Muhammad Rasyid Ridha. In the following, the problems which were explained on the previous chapter, will be analyzed with normative approach. For more systematic, the problem will be analyzed one by one briefly and solidly.

A. Are Their Reasons Allowed? There are few reasons used by interfaith marriage actors in New Sorowajan Hamlet, the analysis is as follows: 1. Love and affection Love and affection are factually the strongest reason for a person to marry, but is this reason could be allowed as a basis of permission? Allah said that a faithful slave is more better than a free unbeliever:
Anggara, http://anggara.org/2007/07/05/perkawinan-beda-agama-di-indonesia/, Accessed on Sunday, October 31, 2010
3

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The verse implies suggestion to select believer men and mowen and ignore emotion and feeling as the basis of marriage. Its also validated by H{adi>s|:
5

The H{adi>s| implies recommendation to choose a woman based on her religion, not other motives. So that love and affection can not be the only reason to overstep the borders, for instance a limitation when Muslims desire to marry non Muslims. 2. Quality of human For them, religion/faith is not determiner in forming attitude and they differentiate between a relationship with mankind (h{abl min an-na>s) and with the God (h{abl min Alla>h). They view the human completely of many aspects: ethics, character, and personality. Their belief is not incorrect at all, because to be a Muslim is not a guarantee for a person to be honest in ethics, character and personality. There are many criminals which are Muslims in this world, some of them fall to build a harmonic family because of immoral problems i.e.
4

Al-Baqarah (2): 221 Al-Baihaqi, Al-Sunan al-Kubro>, Vol. 8 (Beirut: Da>r al-Maghfirah, 1988), p. 80.

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unfaithfulness, hanky-panky, and severity within household. But to be honest in ethics, character, and personality is not sufficient enough without a right faith or religion, because livelihood and felicity do not only happen over here, but also after death. Marriage is not merely about peoples relationship, but also religious matter, so that it can be realized why Islam and another religions regulate marriage extensively. Religion is the most important consideration to select a lifetime partner, because the other considerations can be disappeared and broken up. Its affirmed by H{adi>s|:
6

It implies that everything unless religion will be nothing to measure the real honesty in peoples heart. So that h{abl min an-na>s and h{abl min Alla>h must be achieved in a marriage. 3. Suggestion from kyai. The kyai said that if womans belief is strong, thus it shall be permitted. This is something reasonable and being considered, because factually in the daily life, as admitted by some of interfaith marriage actors in this hamlet, worship and other religious aspects are not bothered just because of religious difference. More positively, almost children grasp Islam as one of their Islamic parent. This reality proves that different sex type is not a measurement to determine whether her belief is weak or the contrary, there are a lot of men who have weak belief moreover they are more weak than a woman. It also can be an objection towards the thought
6

Ibid.

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of Islamic jurists who prohibit interfaith marriage based on a reason that the wives and their children are worried to be a non Muslim or at least ignoring a duty of worship. In Al-Quran, Allah gives equal position and portion for women either in private or public sector as commonly men. We can obtain that there are many women become the leader, judge, minister etc.7 In politics domain, which the matters are more extensive than household, women can be leader of party, president, minister, and many other position. John L. Esposito said, Nor is an Islamic democracy government by the male member of society, women played a considerable role in public life during the life of the prophet; and they contributed to the election of the third caliph, only afterwards were women denied their rightful place in public life. In principle, all believers, rich or poor, noble or humble, learned or ignorant, men or women, are equal before God and they are his vicegerents on earth and the holders of his trust.8 There are three dali>l (proof) used to prevent women from public activities and position them under mens control, Al-Quran:
9

Ensiklopedi Hukum Islam, vol. 6, (Jakarta: PT Ichtiar Baru Van Hoeve, 2001), p. 1921. John L. Esposito (1986) as quoted in Abdullahi Ahmad An-Naim, Toward an Islamic Reformation; Civil Liberties, Human Rights, and International Law (New York: Syracuse University Press, 1996), p. 41.
9 8

An-Nisa> (4): 34.

74 As well as h{adi>s| told by Ibnu Majah stated that rationality and religiousness of women is under mens degree, and h{adi>s told by Bukhari stated that a society will not meet happiness if their business is under womens control. Three dali>l above are positioned in wrong place. Letter in word and in the verse indicates an essence of the characters from two types of sex, so that both women and men could have weak or strong character and could be on the top or on the bottom. Muhammad Mahmud, as quoted by Quraish Shihab, believes that two h{adi>s which indicate the womens weakness are illogical and the sense must be returned to the condition when it came out.10 4. Being pregnant One of five spouses was being pregnant, thus she has to marry person whom made her pregnant. Surely it will be authomatically answered clearly with a verse of Al-Quran below:

11

This verse implies that the adulterer is equal with an idolater and the adulteress is same as an idolatress. Both adulterer and adulteress are considered as the idolater or unbeliever, so that its right to made them united.

10

Ensiklopedi Hukum Islamp. 1921-1922. An-Nu>r (24): 3.

11

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5. Discrimination and violation towards human rights Is the prohibition of interfaith marriage a discrimination and violation of human rights so that it should be allowed or at least became reasonable? To analyze and answer this question, we have to know the theory of justice and maslahah, and observe The Law No. 39 of 1999 regarding Human rights. Here is the brief explanation. According to ideology of materialism and secularism, justice is merely based on human justice and ignored exictence and justice of God, thus usefulness and advantage is merely measured by human idea. This concept must be rejected, because negating existence of God is same as a paganism action and contradictory to the religious doctrine. Islam came by conveying justice and charity for worldwide people. In Islam, justice is close with kindness ( mas{lahah). But not each kindness reflects a justice, because the measure of kindness is both God and human justice, its the difference between Islam and materialism. 12

Nas{ (text) of Al-Quran and Hadis| display that every single

sentence of syariah and law contains mas{lah{ah for human. Imam alGhazali, as quoted by Nasrun Haroen and Karsayuda, stated that mas{lah{ah should be in line with goal of syara, even though its contradictive with humans goal. Consequently, direction and goal of syara is the determinant whether it is a mas{lahah.13 What they consider as

12

Karsayuda, Perkawinan Beda Agamap. 53. Ibid., p. 54.

13

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a justice and kindness is not automatically accepted as a basis to determine whether a treatment is violation towards human. Unfortunately, interfaith marriage is still a dilemma and not qat{i (definit), so that old and contemporary ulama/Islamic jurists have different view to determine whether it should be prohibited or permitted, consequently the justice and kindness of Islam can not be implemented in interfaith marriage problem. As the solver, we should observe through kindness of human (mas{lah{ah mursalah) that its reflected by the law, in this context is Indonesian law. Section 28B UUD (Constitution) 1945 of second Amandment on 2000, states distinctly that every single person has a right to build a family and birth descendant through a legal marriage. But this guarantee is not supported by the regulation under its degree, namely The Law No. 39 of 1999. Article 2 of Section 10 of The Law just regulates requirements of marriage legality, namely free will of bride and groom in accordance with the current regulations. Religious matter is one of many component of human rights and its guaranteed by UUD of 1945 as the highest law in Indonesia. Article 1 of Section 28E and Article 2 of Section 29 of the Constitutional Law, guarantees distinctly each persons freedom to run his faith. Therefore, rejection towards interfaith marriage in Indonesia is a discriminative action and not appropriate with the principal of human rights itself. Prohibition

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towards marriage based on difference of religion is a restrictrion over difference of religion.14 6. All religions are similar Its right that no religion teachs badness and wickedness and there are a lot of spouses built on similar religion, but afterwards the wife/husband became dishonest and immoral. But is it true that religion is no matter and all religions are equally same? Islam admits the plurality of religion as sunnatullah (definiteness). According to Victor I. Tanja, plurality of religion is a hictorical reality which should not be rejected.15 A lot of verses show that all religions are not equally same, Allah gives the proofs and lets human to choose between the right and the lost.
16

17

18

14

http://bh4kt1.multiply.com/journal/item/18, Accessed on Monday, November 1,

2010 M. Muhdi Fanani Aziz, Pluralitas dan Dialog Agama-agama Thesis of Faculty of Ushuluddin, Sunan Kalijaga State Islamic University Yogyakarta, 2005, p. 73.
16 15

Al-Kahfi (18): 29. Al-Ana>m (6): 104. Al-Insa>n (76): 3.

17

18

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These verses imply that we have been given options, so that the consequence is our choice that will be a truth or will be a wrong choice. 7. Family is everything It has a connection with the first reason. When their love each other was agreed by their parent, it would be a strong foundation to get in marriage. But as same as the love, it can not be a basis to allow their marriage. It will be quite different if the spouse has the same religion, because guardians permission (iz}n al-wali>) is one of the many requirements for marriage legality.

B. Status of The Marriage According to Islamic Law Although the interfaith marriage actors counterfeited and manipulated data of religious status to make it allowed in registration, but it is mere legality before the Indonesian regulation to make it registered and admitted as a legal spouse, the marriage sertificate can be a proof to obtain the rights as husband and wife as well as their children rights. Their status on identity card is not their real status in the daily life. A Muslim returned to his original status as Muslim and a non Muslim returned to his original status as a non Muslim. Consequently, their marital status must be observed as the marriage between Muslim and non Muslim. According to Islamic law, ulama>/Islamic jurists have different view whether interfaith marriage is prohibited or permitted. Jumhu>r of ulama> such as Hanafi, Maliki, Syafii and Hanbali have prohibited interfaith marriage

79 unless for Muslims to marry ahl al-kita>b women, three ulama> latter grant status of ahl al-kita>b to Jewish and Christian only, but Hanafi grants the status also to Magian. For other types of marriage, they have prohibited as explained in Chapter II. In the contrary, the contemporary Islamic jurists, such as Muhammad Abduh and supported by Muhammad Rasyid Ridha and Nasr Hamid Abu Zaid allow interfaith marriage either between a Muslim and ahl al-kita>b or in the contrary. Rasyid Ridha said that Al-Baqarah (2): 221 is addressed to a musyrikah (polytheist women) that originates only from Arab tribe, not to all of musyrika>t. He also said that Zoroastrian, Shabiah, Hindu, Buddhist, Sinto girls etc. Can be categorized into ahl al-kita>b, because each religious community had been ever sent respectively the messengers. As stated in AlQuran:
19

20

His thought based on two reasons: firstly, each community of religion firmly have been held the firmament book (kita>b sama>wi>), but the book had ever been changed anywhere as happened to Inji>l (new testament) and Taura>t

19

Al-Fa>t{ir (35): 24. Ar-Rad (13): 7.

20

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(old testament). Secondly, in the principle, marriage is allowed except to the forbidden women as stated in An-Nisa> (4): 24. 21

C. Status of The Marriage According to Indonesian Regulations Zuhdi Muhdlor, a judge in Religious Court of Yogyakarta, stated that the marriage and registration can be conducted according to procedures of Muslim marriage, namely registration before Official of Marriage Registration (PPN) or Head of Religious Affairs Office (KUA), if the condition forces and the marriage solemnizes.22 More detailed, Prof. Wahyono Darmabrata mentions four ways that they are conducted often by interfaith marriage actors to make it allowed in conducting marriage, namely: 23 1. Marriage is conducted by asking court appointment 2. Marriage is conducted according to each religion process 3. Temporary subjugation to one of religious laws 4. Marriage is conducted abroad Interfaith marriage actors in New Sorowajan Hamlet use the second and third way to run their marriage. However both two ways are in similar way, namely conducting marriage by canging the religious status, so that the

Muhammad Asmawi, Nikah dalam Perbincangan dan Perbedaan (Yogyakarta: Darussalam, 2004), p. 141-142. A. Zuhdi Muhdlor, Memahami Hukum Perkawinan (Nikah, Talak, Cerai, dan Rujuk) Menurut Hukum Islam, UU Nomor 1/1974/UU Nomor 7/1969 dan Kompilasi Hukum Islam (Bandung: Al-Bayan, 1995), p. 27.
23 22

21

http://bh4kt1.multiply.com/journal/item/18, Accessed on Monday, November 1, 2010.

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spouse marry as the same religion followers. Although what they implement is laws smuggling towards The Law No. 1 of 1974, but their marriage is admitted and they become legal spouse before the law.

D. Outcome of Interfaith Marriage (Children and Inheritance) According to Islamic Law There are many impact resulted by interfaith marriage as explained in Chapter III, but here I will analyze merely two of them, namely children status and inheritance. Their marriage is admitted legally before the Indonesian law, so that childrens status and inheritance is clearly known. But it will be quite different before Islamic law. This problem depends on whether we take the Islamic jurists thought that prohibits interfaith marriage or the thought that allows it. Of childrens status, it can be followed in both their father and mothers strip if we follow the thought that allows it. But if we consider that their parents marriage is prohibited and becomes invalid, consequently sex intercourse of their parent can be called as zina> (adultery) and they are considered as children of zina>, thus their status follows the strip of their mother only. About inheritance, it becomes normally as relationship between Muslim and non Muslim in a family. We can divide it to two categories: 24

24

Fatchur Rahman, Ilmu Waris, (Bandung: PT Almaarif, 1975), p. 99.

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1. Non Muslim inherits Muslim Hanafiyah, Syafiiyah and Abu Dawud consider that mutual inheritance can not be held because of difference of religion, its based on h{adis{:
25

But Imam Ahmad bin Hanbal and Imamiyah consider that difference of religion is not a barrier, because status of different religion disappeared before inheritance distribution when muwarris| inheritance) dead. 2. Muslim inherits non Muslim Majority of ulama (including four leaders of schools: Hanafi, Maliki, Syafii and Hanbali) said that Muslim can not inherit non Muslim as stated clearly in h{adis| above. Imamiyah is the only school allows, its based on two reasons: a. They analized that Muslim is over the other religions, so that Muslim has a right to get inheritance partly. Its based on h{adis|:
26

(person who left an

b. Analogize (qiyas) right of inheritance with possibility to marry ahl al-

kita>b women. Jumhur of ulama allowed Muslim to marry ahl al-kita>b,

25

Al-Baihaqi, Al-Sunanp. 34. Al-Baihaqi, As-sunanp. 205.

26

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consequently each component of the family has a right of inheritance towards her wealth and also in the contrary. 27

27

Fatchur Rahman, Ilmu Waris...p. 100.