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CHAPTER II MARRIAGE AND INTERFAITH MARRIAGE IN GENERAL

Adam as the human father took Eve in marriage at heaven for the first time in human history. At that time, marriage was allowed even with their own sister, the purpose is non other than to save generation (h{ifz{ an-nasl).1 But when the generation was saved after, Allah commanded Adam and the prophets after him to delimit marriage only outside the cognation, and at Prophet Muhammad period, Al-Quran states to delimit it only among each religions, Muslims have to take another Muslim in marriage, or they are allowed at least to marry ahl al-kita>b (inter-faith marriage). Thus, we have got to know generally and comprehensively the subject of marriage and interfaith marriage when we concern to obtain and solve entire problems around the marriage.

A. Marriage 1. The Basic Concept of Marriage At least there are three main principles of marriage: each husband and wife has to commit to marry a partner (monogamy) only, willingness and agreement between husband and wife, and a determination to keep the marriage forever. 2 These are the foundation of marriage bulding.

Syaikh Muhammad al-Ba>juri, H{a>syiah al-Ba>ju>ri ala> Ibn Qa>sim alGazi>, (Jeddah: Al-Haramain, ny), II: 91. Khoiruddin Nasution, Hukum Perdata Islam Indonesia dan Perbandingan Hukum Perkawinan di Dunia Muslim (Yogyakarta: Tazzafa, 2009), p. 232.
2

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Marriage is one of the most important events for a person, a lot of verses indicated the importance of marriage, one of them is a verse below:

This verse indicates that in a marriage Allah will guarantee Muslims to be sufficient in life if they are needy. Other verses are An-Nisa> (4): 1, 3, 25, Ar-Ru>m (30): 21, and An-Nahl (16): 17. The guarantee is in line with David Olions opinion, he stated that the core of marriage is to build strong foundation, because married people lead a healthier life style, live longer, have satisfying sexual relationship and more wealth in economic assets, and also children generally more better raised in a two parent home. 4

2. The Meaning of Marriage Marriage intends to a unity between a man and a woman. Its to deflect the sense that its trapped in allowance of homosexuality (between men), lesbian (between women), or group marriage (five men with a woman as happening in Masai tribe in Africa and Yadaan Kanaits in India).5

An-Nu>r (24): 32.

David H. Olion cs, Marriages and Families Marriages and Families: Intimacy, Diversity, and Strengths, 6th Ed. (New York: McGraw Hill, 2008), p. 3. M. Idris Ramulyo, Tinjauan Beberapa Pasal UU No. 1 1974 dari Segi Hukum Perkawinan Islam (Jakarta: Ind-Hillco, 1986), p. 53.
5

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Marriage is a sacred covenant, sturdy, and strong, not just a blessing or recognition and legalization before the law (court of law). 6 Abu Zahrah defines marriage as aqd (contract, agreement, transaction) that permits intercourse between husband and wife and causes both right and duty as well as necessity to assist mutually. 7 Syarif Ali supports the definition and states that marriage has to be continued everlasting in order to distinguish it with the aqd (transaction) in trading.8 The Law No. 1 of 1974 defined marriage as a physically and spiritually bond between a man and a woman as husband and wife having a goal to build a cheerful and everlasting family (household) based on Great Unity of God (YME).9 Of five definitions above, the similarity we can achieve is that the marriage is a glorious bond of human acquired equality and equity in both rights and duties, not any similarities.

Bustanul Arifin, as quoted by Khoruddin Nasution, Hukum Perdata Islam Indonesia...p. 223.
7

Abu Zahrah, Al-Ah}wa>l al-Shakhsyiyyah (Kairo: Da>r al-Fikr, 2005), p. 19.

Syarif Ali bin Muhammad al-Jarjani, Kita>b at-Tarifa>t, (Jeddah: Al-Haramain, 2001), p. 243-244.
9

Section 1 of The Law No. 1 of 1974.

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3. Goals of Marriage

10

The verse shows that the goals of marriage are saki>nah (peaceful), mawaddah} (serenity), and rah{mah} (affection). When these goals are reached, another goals will be simple to conduct. Khoiruddin Nasution also supports the goals above, then he adds that marriage is also to regenerate and reproduce aimed to save humans from extinction and destruction, to fill biological (sexual) necessity, to save honor as well as to be devout in faith. 11

4. Marriage Legality Marriage legality depends on essential principles (rukn) and requirements (shart{) whether they are fulfilled. Islamic marriage law has explained extensively the terms. There are many essential principles of marriage that will make it legitimated. The most essential principle is willingness and compatibility between spouse candidate, that is why the most important principle is ija>b (delivering) and qabu>l (receiving). Islamic law also gives many requirements in legality of a marriage, but I take some important requirements relates to this research, namaley: (1) both bride and groom candidate are sensible, mature, and

10

Ar-Ru>m (30): 21. Khoiruddin Nasution, Hukum Perdata Islam Indonesia...p. 226-228.

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free (2) bride candidate is not prohibited to take in marriage (3) both are willing to make a marriage with no enforcement.12 Whereas, The Law No. 1 of 1974 requires some conditions in marriage acted legally possible, some important conditions are: (1) marriage has to be carried out according to each religious law (as stated in Article 1 of Section 2) (2) an agreement between bride and groom, unless if the law regulates differently (as stated in Article 1 of Section 6). Actually, the rule is when Islamic law decides that a marriage is valid and legitimate, thus it has to be legitimated in national regulation, as well as in the contrary, because Indonesian regulations relates to marriage is produced from Islamic law. Nevertheless, at present, something obliged was not similar to what was happening. Tragically, all decisions and verdicts follow the Indonesian regulation although, for instance, it is not allowed in Islamic law. Indeed this is not totally wrong, because it should be happening, Islamic law is in private area, not in public.

B. Interfaith Marriage 1. The Meaning of Interfaith Marriage Some jurists bring up some definitions of interfaith marriage. As the words mean, Abdurrrahman believes that interfaith marriage is a

Ahmad Nasr al-Jundi, Maba>di> al-Qad{a al-Syari fi Khamsina> Amn, (Kairo: Da>r al-Fikr al-Arabi>, 1969) as quoted by Rifat Syauqi Nawawi within Chuzaimah T. Yanggo and Hafidz Anshari, Problematikap. 96.

12

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marriage between different religious adherents, and O.S. Eoh adds that it has to be aimed to build an everlasting household. 13 Frequently Interfaith marriage is exactly same with mixed marriage, due to its characters, the marriage is realized among people that submitted to assorted different law system. 14 In fact, a lot of jurists equalize both interfaith marriage and mixed marriage. Azhar Basyir defines mixed marriage as a marriage between a man and a woman differing faith, nationality, original descendant, or citizenship. 15 I get a lot of jurists distinguish interfaith marriage and mixed marriage, but in this thesis, I take the opinion equalized them, because people suggest that the effective law is the law that allows interfaith marriage as allowed by the institute that has a duty to administer the marriage, namely Civil Registration Office (KCS) and Religious Affairs Office (KUA).

2. The Reasons for Realizing Interfaith Marriage Theoretically, based on existing literatures, the reasons mostly and dominantly used by interfaith marriage actors is love, pleasurable feeling and comparability between spouse candidate. I discover this
13

See: Abdurrahman, Himpunan Peraturan Perundang-undangan tentang Perkawinan di Indonesia (Jakarta: Akademika Pressindo, 1986), p. 44., and O.S. Eoh, Perkawinan antar Agama dalam Teori dan Praktik (Jakarta: Srigunting, 1996), p. 35. Sution Usman Adjie, Kawin Lari dan Kawin antar Agama (Yogyakarta: Liberty, 1989), p. 118. Ahmad Azhar Basyir, Kawin Campur, Adopsi, Wasiat Menurut Hukum Islam (Bandung: Al-Maarif, 1972), p. 5.
15 14

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reason in a work of Hilaly Basya. He considers that the reasons based on love must be moved aside, he adds, if interfaith marriage is allowed, it will weaken the strategy of Islamic struggle, because it will not be enough defence and perhaps the spirit to struggle will be weaken within her soul because of the love to her husband. 16 Love is factually the strongest reason for human being to break through all of borders and hindrances even if the barrier is mountain and ocean, its also occured in marriage. A jurist defines that marriage is relatively egalitarian relationship promoted by kinship organization. 17 The organization appears because of childrens resisting towards their parent. This is the fact, because of love, everything will be exceeded, includes interfaith marriage actors. In Asia, todays rapidly globalising world makes marriage as a contract between two individuals based on love and commitment to each other. The degree of womans control over their marital decision and choice of mate, based on individual traits rather than familys socioeconomic status, is seen a measure of whether a society has embraced modernity. Marriage involves truly many actors with complex decision making processes and multiple consideration. Whereas in Western understands today, it is love that devises marriage, marriage is largely a

Muhamad Hilaly Basya, Pernikahan Beda Agama: Membongkar Dogma dalam Memoar Cintaku (Yogyakarta: LKiS, 2004), p. 253. Abdullah An-Naimi, Islamic Family Law in a Changing World, a Global Resource Book (London: Bondon, 2002), p. 253.
17

16

29 product of developments that occured during the 18 th century and thereafter.18

C. Interfaith Marriage on Islamic Law 1. Musyrik/Ka>fir and Ahl al-Kita>b Interfaith marriage discourse cannt be released from discussion about musyrik, ka>fir, and ahl al-kita>b. Over the word musyrik, note a verse below:
19

Actually, the cause of revealing Al-Baqarah (2): 221 is an answer for the problem of Ibnu Abi Murtasid that has a desire to marry a musyrik woman. 20 Most of ulama believe that the sense of verse is prohibition for muslim to marry musyrik women and the contrary except when they have embraced Islam. They consider that ahl al-kita>b is not covered in musyrik, its based on Al-Maidah (5): 5 as takhs{is{ (give particular sense in a word having general sense) of Al-Baqarah (2): 221.21 Ali alShabuni supports this opinion by quoting a verse below:

IIAS Newsletter#45 Autumn, Arrange Love; Marriage in a Transnational Work Environment (Netherlands: IIAS, 2007), p. 3-9.
19

18

Al-Baqarah (2): 221. Qamaruddin Shaleh, Asbabun Nuzul (Bandung: C.V. Diponegoro, 1974), p. 70. Ibnu Ruysd, Bida>yah al-Mujtahid (Semarang: Toha Putra, n.y), p. 33.

20

21

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22

Letter in the verse is wawu at{af functioning as distinguishing letter between the word/sentence before and after, it means that ahl al-kita>b and musyrik are actually different.23 This is as same as explained by Muhammad Rasyid Ridha and Al-Qurtubi. Some of them believed that the sense of musyrik is general includes idol worshipper, Magian, and ahl al-kita>b. Its based on an understanding that each ka>fir person is essentially a musyrik and also supported by tale of Ibn Umar that prohibits to marry Christian and Jewish. Ibnu Katsir considers that although this verse is initially addressed to musyrik of Arab tribe, but its also transpired generally to other Arab tribe. Syafii considers that it includes all of musyrik from Arab tribe and idol worshippers. The term of ka>fir, as its stated by Hilaly Basya, has many different interpretations and meanings. Here I brought up six of them: 1. Kufr inka>ri>: negation towards God existence, messengers, and all doctrines. 2. Kufr juhdi>: negation towards Allahs doctrines although he knew that what he negates is a truth.

22

Al-Bayyinah (98): 6.

Muhammad Ali al-S{abu>ni>, Tafsi>r Aya>t al-Ah{ka>m min al-Qura>n, (Beirut: Da>r al-Kutub al-Ilmiyah, 1999), p. 203.

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3. Kufr nifa>qi>: admits God existence in tongue, messengers, and all doctrines brought, but negates it in heart. 4. Kufr syirki>: believes in many gods beside Allah and glorifies them (polytheism). 5. Kurf murta>d/riddah: returns to be disbeliever or leaves Islam. 6. Kufr ahl al-kita>b: non muslim people believe in messenger of God and the holy book that it reveals to them. 24 Meanwhile, Islamic jurists (fuqa>ha>) have divided kafir to six genres: h{arbi> (enemy within a war), kita>bi> (having holy book), mua>hid (making an agreement with Islamic government), mustamin (requesting protection), z|immi> (paying tax to get protection), riddah (returning to be unbeliever). Most fuqa>ha> consider to prohibit marrying all of them, but some fuqa>ha> are in the contrary. 25 In Hanafis school, the status of ahl al-kita>b is granted to Jewish and Christian girl, and also to Magians (Zoroastrian/ Maju>si>).26 Yusuf Qardlawi reckons that main base of allowance to marry ahli kitab woman used by majority of ulama is an axiom (qa>idah) below:
27

24

Muhammad Hilaly Basya, Pernikahan Beda Agamap. 143.

M. Karsayuda, Perkawinan Beda Agama, Menakar Nilai-nilai Keadilan Kompilasi Hukum Islam (Yogyakarta: Total Media, 2006), p. 70-71. David S. Pearl, A Textbook on Muslim Personal Law (London: British Library Catalouging in Publication Data, 1987), p. 52. Yusuf al-Qardlawi, Fatwa Qardlawi, Permasalahan, Pemecahan, dan Hikmah, Translator: A. Ali Bauzir (Surabaya: Risalah Gusti, 1996), p. 259.
27 26

25

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He stated that musyrik has a exceptional characteristic and doesnt includes ahl al-kita>b inside. Of the explanation, we can conclude that doctrine of Islam grants an opportunity to implement interfaith marriage.

2. Muslim Mens Marriage a. With Unbeliever Woman Unbeliever women means kafir/musyrik women beside ahl alkita>b. Al-Quran also mentions some religions beside Jewish and Christian which is agreed as the part of ahl al-kita>b, namely S{abiah (Al-Baqarah (2): 62, Al-Ma>idah (5): 69, Al-Hajj (22): 17), Maju>si> (Magian: in Al-Hajj (22): 17), religious community that holds s{uhu>f (Sheets) of Prophet Ibrahim (Abraham) and Shit, Taura>t (Old Testament) of Musa (Moses) and Zabu>r (Psalm) of Daud (David). Abu Tsaur and Hanafis school consider that to marry S{abiah and Maju>si> is allowed as long as they are not paganism, but Abdurrahman bin Auf, Syafii and Hanbalis school are in the contrary with a reason that their holy books do not contain the laws problems. 28 Islamic jurists (fuqa>ha>) have an agreement to forbid a marriage between muslim man and unbeliever woman, idol worshippers, murtad (returns to be unbeliever), flame worshippers,
Abu Bakar Ibnu Muhammad, Ia>nah al-T{a>libi>n (Beirut: Da>r al-Kutub, 2002), p. 465-468. See also: Ibn Hazm, Al-M{ahalli> (Kairo: Maktabah Da>r alTura>th, n.y), p. 445-447.
28

33 and way of liberty e.g wuju>diyyah etc.29 It has also been an agreement among jumhu>r of ulama. Meanwhile contemporary ulama such as Ibnu Jarir, an expert in Tafsi>r, as quoted by Nazar Bahry, has an opinion that musyrik, which is prohibited to be married, is musyrik from Arab tribe, because at the time of descending Al-Quran, they did not certainly recognize holy books and also worshipped idols, so that Muslim men could marry musyrik women except from Arab tribe or Peninsula of Arab, e.g. China, India, Japan that have holy book or similar holy book, as well as Buddhist, Hindu, and Tao that believe in Great Unity of God and life after death. Ibnu Jarir stated also that Magian and S{abiah are permitted to take in marriage. It based on the view of Al-Quran about history of human being that each community has been delegated a messenger that he brought a holy book.30 Muhammad Abduh,31 Muhammad Rasyid Ridha, as well as Nasr Hamd Abu Zayd are going along with this opinion.

b. With Ahl al-Kita>b Women Majority of ulama from salaf (old) and khala>f (recent) view that Al-Ma>idah (5): 5 implies allowance for Muslim to take ahl alkita>b woman in marriage. This opinion is same as Ibn Taimiyahs
29

Ibn Rusyd, Bida>yah..., p. 33, See also: Sayyid Sabiq, Fiqh..., p. 99. Karsayuda, Perkawinan Beda Agama...p. 75-76. Nazar Bahry, Problematika Pelaksanaan...p. 8 and 158-159.

30

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34 opinion, Nabis companions (s{ah{aba>t such as Utsman bin Affan, Talhah Ibnu Ubaidillah, Jabir, and Saad bin Abi Waqqas except Abdullah Ibn Umar) and four school leaders (Hanafi, Maliki, Syafii, and Hanbali). Although trinity is a polytheism, but as takhs{i>s{, the firmament book (kita>b al-sama>wi>) is a forceful reason for them to be permitted in marriage.32 No matter whether they are ka>fir harbi> (in war condition) or ka>fir z|immi> (in asylum of Islam), they are allowed to take in marriage. The allowance for muslim men to marry an ahl al-kita>b woman is a form of tolerance in Islam that can be met rarely in other religions, no matters that their faith is assessed as paganism, but muslim men can exactly take them in marriage.33 Because of marriage and intermixture of each man and womans family, it will be an opportunity to learn Islam thoroughly as well as a religious preaching to ahl al-kita>b families.

3. Muslim Womens Marriage with non Muslim Men Most ulama interpret that allowance for muslim women to marry non muslim men is unexplained in nas{ (Al-Quran and Hadith) indicates

32

Muhammad Ali al-Shabuni, Tafsi>r Aya>t al-Ah{ka>m...p. 203.

Nazar Bahry, Problematika Pelaksanaan Fiqh Islam (Jakarta: Raja Grafindo Persada, 1994), p. 9.

33

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a signal of prohibition to accomplish a marriage among them, even the men are from ahl al-kita>b group.34 Some reasons for ulama/Islamic jurists to prohibit a marriage between a Muslim mowan and a non Muslim man are as follow: 1. One of the requirements of marriage legality for a Muslim woman is that her groom must be a muslim based on an opinion of jumhu>r. 2. Restrict non muslim husband to control his muslim wifes authority. In a household, wife is often positioned as a led person and has to be obedient to her husband which is positioned as a head of household, so that she has no independence in religion and educating children, and also it will threaten her faith and worship each day. 3. It makes possible that non muslim husband will marginalize his muslim wife in performing her faith, because he have deceive his own prophet. 4. To prevent a possibility of sacrificing religion or changing wifes faith to non Islam religion (sad al-z|ari>ah/blocking the means). 5. In Islam, faith/religion is a fundamental main aspect (d{aru>ri>) that has to be protected in order to save essential goal of life, namely bliss (kindness) in the world and hereafter (in life and death).35 Furthermore, there are a lot of Islamic jurists mainly contemporary ulama allow the marriage among muslim and non muslim. The allowance doesnt be restricted just for muslim man to marry non
34

M. Quraish Shihab, Wawasan al-Quran (Bandung: Mizan, 2001), p. 197. Sayyid Sabiq, Fiqh al-Sunnah (Beirut: Da>r al-Fikr al-Arabi>, 1985), p. 94-158.

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muslim woman, but includes muslim woman to marry non muslim man. They perceive differently Al-Baqarah (2): 221, Al-Ma>idah (5): 5, and Al-Mumtahanah (60): 10 as base of prohibition and allowance of interfaith marriage, they believe that prohibition to marry musyrik conducted only in Prophet Muhammad era, as explained before.

D. Interfaith Marriage on Indonesian Regulations 1. Empirical Fact of Interfaith Marriage in Indonesia No religion in Indonesia allows interfaith marriage.36 But Islam gives the possibility to conduct the marriage. This is a form of tolerance and inclusive in Islam. Manual for Official of Marriage Registration mentions, Interfaith marriage is a marriage in Indonesia between two people embraced different religions. For instance, between Muslim man and non Muslim woman (Christian, Catholic) 37 Many bride and groom candidates worry about their decision to marry differing faith person. This worry is a normal deportment, because although interfaith marriage actors are increasing, but its still a problem, especially before religion itself and also Indonesian regulation. They do not believe whether they will get a guarantee in conducting marriage or it will be a wedge in the future. When they face deadlock, they look for one
36

M. Karsayuda, Perkawinan Beda Agama...p. 10.

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. 26.

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reason allows or at least supports their action, thus they force to solemnize the marriage. But actually solemnizing is compulsion and pretense in religion because of marriage. 38 Interfaith marriage actors challenge doesnt stop up to there, because when they solemnize, their marital decision should leave some problems, namely: 1. Marriage legality: the marriage can be invalidated because of breaking the Islamic law that is poured in Letter C of Section 40 of KHI. 2. Children status: although the law doesnt effectively withdraw, at least when his parents marital status is invalidated, it will cause psychological disturbance. 3. Right of inheritance: it will be prevented because of differing religion. The reason is that it will be impossible for a person to have double religion. 4. It becomes a problem whether Religious Court (PA) will handle the internal conflict and legal dispute appeared, or State Court (PN). Because institutional court in Indonesia doesnt only recognize absolute and relative authority, but also personality principle; Religious Court has an authority to adjudicate Muslim and State Court has an authority to non Muslim. 39 Recently, there is a project especially in City of Semarang and Central Java, aims to encourage more spouse of Premarriage Young
38

O.S. Eoh, Perkawinan Antar Agama...p. 17. M. Karsayuda, Perkawinan Beda Agama...p. 89-90.

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Group of Different Religion can claim their right and interest, namely interfaith marrying that should be registered legally before the law and Indonesian regulation. The project named Interfaith Marriage Advocacy Group in Indonesia (IMAGI).40 Unfortunately, the organization is not found in Yogyakarta, so that we can not ask problematic issues around interfaith marriage.

2. History of Indonesian Regulations Relates to Interfaith Marriage Before the independence, Netherlands Indies as current

government, consistently implemented a policy about marriage among differing religion communities, thus it be promulgated as such in Regeling op de Gemengde Huwalijken and Staatsblad 1898 No. 158. After the independence, Indonesia experienced a lot of changes, Islamic private law is part of the State System of Law.41 Thus it influenced to marriage regulation, but there were many previous regulations (Netherland Indiess outcome) still be conducted. In 1968, an attempt was made to provide a unification of marriage law. However, redafted proposal to reform and unite the marriage law was put forward in the early 1970s and passed into a law as marriage law of 1974. But the relevance to Islamic Law in Indonesia is still blur; because a unification of law must be provided for both Muslim and non-Muslim

http://ppmps.wordpress.com/interfaith-marriage-project/tujuan-dan-strategiprogram/, accessed on Wednesday, 20 October 2010.

41

40

M. Karsayuda, Perkawinan Beda Agama...p. 273.

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and it must also be enforceable in administrative organs of an awkwardly secular state. The original draft of 73 Sections had beeen provided for unification of law which included a standard form for validity of interreligious marriage. The provision that allows mixed marriage (Art 11 [2]) is a direct challenge to substantive Islamic principles; a Muslim woman has no capacity to marry a non-Muslim and a Muslim male is restricted to ahl alkita>b women, e.g. Christians or Jews. Even this is not a barrier to muslim participation, the difficulties to keep accurate register will pose serious technical problems to the administrative systems of Indonesia. 42 Whereas, Code of Civil/Personal Law (KUHPer)/Burgerlijk Wetboek (BW) as the private law, regulates to legitimate marriage only on connection with the civil/personal case, not the religion. 43 In May 26 - June 1 1980, National Conference (Munas) of Majelis Ulama Indonesia (Council of Indonesian Ulama) published a fatwa (decision) to prohibite Muslim men to marry an ahl al-kita>b woman, with consideration that the wickedness is greater than the advantage.44 But up to now, its still a possibility and a chance for

M.B. Hooker, Islamic Law in South-East Asia (Singapore: Oxford University Press, 1984), p. 272.
43 44

42

M. Idris Ramulyao, Tinjauan Beberapa Pasal...p. 58. Ibid.,p. 6.

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interfaith marriage actors, because fatwa is conducted mere to petitioners of fatwa.

3. Regeling op de Gemengde Huwelijken (RGH) According to RGH/GHR, mixed marriage is interfaith marriage itself. 45 Of the characteristics, mixed marriage is interfaith marriage, because the marriage is law of peoples dealing that submit to different law system. According to Section 1 of RGH (Regeling op de Gemengde Huwelijken, Koninklijk Besluit Van December 29 1896 No. 23 Staatsblad No. 158), interfaith marriage includes within mixed marriage. 46 Section 7 of RGH states that difference of religion, descendant, or ethnic group do not become a barrier of marriage legality. In advance of The Law No. 1 of 1974 was conducted, interfaith marriage was not a problem because it could be undertaken by using The Mixed Marriage Law (Section 1 of RGH).47

4. The Law No. 1 of 1974 Concerning Marriage

Al Purwa Hadiwardono, Perkawinan Menurut Islam dan Katolik; Implikasinya dalam Kawin Campur (Yogyakarta: Kanisius, 1995), p. 77. Sudargo Gautama, Segi-segi Hukum Peraturan Perkawinan Campuran, 4th Ed. (Bandung: Andes Utama, 1974), p. 70.
47 46

45

O.S. Eoh, Perkawinan Antar Agama...p. 9-16.

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The Law No. 1 of 1974 Concerning Marriage has been effective with PP (Government Regulation) No. 9 of 1975 and Minister of Religious Affairs Regulation No. 3 of 1975. 48 When The Law conducted, there were at least three regulations must be extracted especially about marriage, namely: BW (Burgerlijk Wetboek)/KUHPer (Code of Civil Law), Ordonantion of Christian-Indonesian Marriage (Huwelijk

Ordonantie Christen Indonesiens), and Mixed Marriage Regulation (RGH),49 as long as not be regulated in the law. But when it was conducted, there were many problems appeared, particularly whether mixed marriage is exactly the same as interfaith marriage. Article 1 of Section 2 of The Law No. 1 of 1974 emphasizes that marriage will be permitted if its conducted along with each own religion and faith. Because of it, some jurists considere that interfaith marriage is basically prohibited. 50 Because, when a marriage doesnt fulfill some essential principles (rukn) and requirements (syart{), thus according to Islamic law and The Law No. 1 of 1974, it has to be illegal or invalid (ba>t{il) on behalf of the law.51 Its based on opinion that the significance of Section 2 is not contradictory with al-Baqarah (2): 221, Al-Maidah (5): 5, An-Nisa (4): 22-24.52
48

M. Idris Ramulyao, Tinjauan Beberapa Pasal...p. 99. M. Karsayuda, Perkawinan Beda Agama...p. 6. A. Zuhdi Muhdlor, Memahami Hukum Perkawinan...p. 26. Mahmud Yunus, Perkawinan dalam Islam (Jakarta: PT Hidakarya Agung, 1975), M. Idris Ramulyo, Tinjauan Beberapa Pasal...p. 49.

49

50

51

p. 15.
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Section 57 of The Law No. 1 of 1974 shows that mixed marriage is actually not interfaith marriage: Mixed marriage in this Law means the marriage in Indonesia between two people submitted to different law because of different nationality, one of them is foreigner/non-Indonesian citizen and another is Indonesian citizen.53 I discover mere a definition about mixed marriage in Section 57 which is truly different from interfaith marriage. Thus, I conclude that interfaith marriage is not regulated within The Law No. 1 of 1974.

5. Compilation of Islamic Law (KHI) KHI which effevtive by Inpres (Presidential Instruction) No. 1 of 1991, prohibit and forbid interfaith marriage. Its poured in Letter C of Section 40 and Section 44.54 Section 61 of KHI contains a stipulation of preventing marriage, it states, No proportion (kafaah) could not be a cause to prevent the marriage, except its caused by difference of religion. Stipulation about marriage validity, which is regulated in Section 75 of KHI determines that: because one or both husband and wife return to be unbeliever (murtad), a marriage can be invalidated. It means that interfaith spouse, which one or both spouse are Muslim, is impossible to

53

Section 57 of The Law No. 1 of 1974 regarding marriage. M. Karsayuda, Perkawinan Beda Agama...p. 7.

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be permitted although both of them are originally Muslim. However, according to the opposition side of KHI such as the bearers of Counter Legal Draft, KHI has actually no power of law, because KHI mere an Inpres (Presidential Instruction), not the law/statute. Because Marriage Law do not regulate definitively the prohibition towards mixed marriage, thus pursuant Section 6 of The Law No. 1 of 1974, previous regulations e.g. RGH and Staatblad 1898 No. 158 can be conducted as long as The Law did not regulate. In Jakarta, marriage between Muslim man and an ahl al-kita>b woman had been permitted in advance of KHI was legalized as the base for Religious Court (PA) and KUA. Because interfaith marriage phenomena raised forward, MUI of Jakarta and Directorate General of Islamic Religion Institutions, District Office of Department of Religion Jakarta published decision and regulation allowed the marriage, but when KHI was legalized, thus its operating suspended. 55

E. Interfaith Marriage in Muslim Countries Other Muslim countries have faced similar problem regarding interfaith marriage. But some countries have clearly prohibited, while another countries have been in the contrary. Although Islam in Southeast Asia is contextual or blended with preIslamic traditions and beliefes as well as with degrees of Hindu-Buddhist

55

M. Karsayuda, Perkawinan Beda Agama...p. 88.

44 influence,56 but Muslim countries, except Malaysia, do not clearly regulate interfaith marriage. In Burma/Myanmar, there is a verdict that a marriage between a Muslim male and a Polytheistic (Mah Thai) female is invalid (ba>t{il). In Pakistan and Bangladesh: if a muslim wishes to marry a Hindu girl, for instance, in either of the countries, the couple can do one of three things (all possibly unattractive). First, the girl can adobt Islam; second, the couple can marry in a secular form outside the country; third, the couple can take advantage of the provisions of The Special Marriage Act (1872) still in force both in Pakistan and in Bangladesh, its also happening in India. 57 In Turkey, marriage is prohibited between a Muslim woman and a non-Muslim man (as stated in Article 1 (c) of Section 7, Text of The Turkish Family (marriage ang divorce) Law 1951 of Cyprus). Lebanon and Israel adopt the ottoman family law. At the time of its enactment in Turkey, those provisions of the Ottoman Law which were aplicable to non-moslem of the empire, which have been expunged in Lebanon as well as in Israel. Based on Section 58 of Text of The Ottoman Law of Family Rights, 1917, that marriage of a Muslim woman with a nonMuslim should be void (ba>t{il).58

56

Abdullah An-Naimi, Islamic Family Law...p. 247.

David Pearl, A Textbook on Muslim...p. 50-53. Tahir Mahmood, Family Law Reform in The Muslim World (New Delhi: The Indian Law Institute, 1972), p. 42.
58

57

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In Egypt, the regulation of interfaith marriage is not discovered because of the influence of Muhammad Rasyid Ridhas thought, its also conducting in Tunisia. In Jordan, the marriage is also prohibited based on Article 29 of The Jordanian Law. Text of The Jordanian Law of Family Rights, 1951.59 In Iraq, the law is more distinct than anothers. Marriage of a muslim man with an ahl al-kita>b is valid, but that of a muslim woman with a nonmuslim is not permitted, based on Section 17 of Text of The Iraqi Law of Personal Status, 1959.60

F. Interfaith Marriage According to Sociological Theories The cases of interfaith marriage, especially practical cases, is not intensively elaborated with sociological theories. So that I have got to conclude partly and individually the stipulations brought by sociological theory to determine how the theory observes interfaith marriage as peoples living law. Sociology of laws doctrine instructs that the law has to be based on conditions concretely live in the society. The law funtions as controller aimed to save the living norms among people. But the problem is whether each thing happening in a society is automatically a living law, so that it must be legitimated.

59

Ibid., p. 76-81. Ibid., p. 165.

60

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Roscoe Pound and related sociologists from school of Sociological Jurisprudence which made law-to-societys approach, think that the splendid law is the law that agrees the living law. This approach wishes to measure whether the current norm of law is still suitable with the living law. On the opposite, sociology of laws doctrine which made society-tolaws approach, wishes that the society is determiner to establishing the norm of law. Thus we can conclude that the law and social-culture norms have tight relationship. The living law can be found through direct observation towards livelihood, customs, and all of social forms, not only the admitted forms, but also the ignored. Spontaneous practices can be a custom when its happening continuously and considering a good matter. Its truth that not all phenomena are in line with the sense of goodwill and justice, even it opposes to the law and sense of equity. Criminality is contradictory with the law as well as social and religious norms, though it conducts intensively. Its also a truth that social dynamics more rapidly developed than the law, because process of establishing law is complicated and involving a lot of stages of bureaucracy. As the result, the law is always left behind and can not balance the rapid dynamic society. Interpreting law is the most pragmatic alternative to overcome asymmetry between norm of law and rapid societys development.61

61

M. Karsayuda, Perkawinan Beda Agama...p. 58-60.

47

This is same as intarfaith marriage case. Rapid globalizing world in spreading information and mobilization causes mixed relationship among people, so that it can not be rejected that interfaith marriage is one of the many living laws conducted and accepted in society because of its advantages. Satjipto Raharjo, by quoting Lon L. Fullers thought, stated that forming the living law is through implied law. Implied or implicit law is in other side of the law which created intentionally by corporation or individual. Implied law do not recognize an authoritative verbal declaration, but a course of conduct.62 In interfaith marriage matters, the practice is not just happening among ordinary people, but it also among intellectual and educated people as well as public figures and Islamic jurists family, thus should we refuse these facts which accepted by the citizens all over Indonesia, as living law?

62

Ibid., p. 61.