Adultery and its effects in Islamic Law and Indonesia's Constitution

[ISSN 1858-6139] م ٢٠١٣ رﺑﻣﺳﯾد ﻊﺳﺎﺗﻟا ددﻌﻟا ﺔﯾﻣﻠﻌﻟا ﺎﺿرﻟا تﺧﺑ ﺔﻌﻣﺎﺟ ﺔﻠﺟﻣ

University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013

Adultery and its effects in Islamic Law and Indonesia’s Constitution

Perspective (Comparative Study)

By

Dr. H. M. Nurul Irfan, M.Ag

lecturer on Islamic law and jurisprudence Faculty at Islamic university of

Syarif Hidayatullah Jakarta Indonesia

Abstract an oldest disease of the communities and allegedly continued in this world is adultery. The criminal act of adultery not only be detrimental to actors and their families, but even having a devastating effect on the lives of the general public; the negative impact in marital problems, in the issue of waiting period ( iddah ), in the problem of determining a mahram and in terms of using the earnings of this heinous act. Even the psychological impact to the child born as a result of the adultery will continue to impress upon the child is even possible will result in a variety of other negative effects later in his life. In the area of marriage, what the law of marrying a woman who is pregnant due to adultery either married by her adultery couple or another men. In iddah obligation issues, should women who are pregnant due to adultery to implement iddah, In the mahram relationship, are there any parties forbidden to marry and considered a mahram as result of this adultery, and in terms of using the earnings of fornication, may this money was used to purposes of worship? Various answers to these problems will be presented in this paper.

Key Words : Zina, stoning, flogging, natural child, married pregnant women, waiting period (iddah) and mahram

INTRODUCTION

In the study of Islamic law, there is a theory of Maqasid al-Shari'ah, namely the the fundamental objectives of implementation the teachings of Islam or

Islamic law enforcement purposes. The core of the Maqasid al-Shari'ah theory is meaning and purpose required by Islamic law in prescribing a law for the benefit of mankind. This theory among scholars of usul fiqh also called as asrar al-Shari'ah, which contained the secrets behind the law laid down by Islamic law that will be a benefit to mankind both in this world and in the hereafter.

In this case, the teachings of Islam with its concept of Maqasid al-Syarî'ah attach great importance to the maintenance of the five principles, namely: religion, life, intellect, lineage and property. Maintenance of these five things is belonging to the al- Maslahah al-Haqîqiyyah .

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All five of the above is also named as al-Kulliyyah al-khams or five Islamic souls that must be maintained properly. Therefore religion must be maintained, then faith must be cleared from the polytheism elements and the five pillars of Islam religion should be implemented as well as possible. In order to keep this religion, jihad is ordered to fight in the way of Allah to defend religion from enemy attack and along with it, those who carry deviations in religion to be pulled back to the true teachings. Even legal sanctions should be applied to the apostate and perform abuses against religious, as well as heretics should be given legal sanction explicitly.

Furthermore, Islamic law imposed to keep the human soul. Keeping the soul and protect it from threats meant to maintain the existence of the human race as a whole. To make that happen, Islam set the rule of law for criminal offense of murder and the perpetrators of persecution. If a Muslim dies or his part of body damaged and injured by the hands of someone without legal reasons allow it, the offender shall be liable to retribution or blood money.

From this statement it can be seen that the human’s soul and his physic is expensive and highly respected in the eyes of Islamic law.

Then the next Islamic law’s goal is to keep the senses. Therefore sense should always be maintained, and then the Islamic law states that consuming intoxicating beverages and food is forbiden. In this case, the drunks, manufacturers, dealers and all those involved in it should be punished, whether hudud sanctions or takzir.

The fourth principle also be noted by Islamic law is about treasure. Property must be maintained properly, should not cheat each other and master it with the wrong way, should not take over rights of orphans, corrupt, bribes to judges or officials, giving gifts with special purpose to an official, force, steal or rob.

The objective of the last Islamic law as well as a central theme of this paper is a discussion of lineage or ancestry. In order to preserve this lineage, Islam forbids all forms of adultery and prostitution as well as encourages marriage strongly for continuing descent of mankind from extinction and has a legitimate kinship. In this case, both of married and non married adulterers should be punished by stoning to death or flogging one hundred times. In this paper the authors point out about the crime of adultery, and various harmful effects on people's lives both negative influence on the issue of marriage, the waiting period problems, the problem of determining a mahram or use the money from the issue of adultery, with the approach of criminal law and the family law of Islam.

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Specifically, the authors will focus studies on adultery is in many phenomena and facts that occurred in Indonesia, according to various news media both in print, electronic and on-line that adultery in Indonesia has been very intense. Another clear indication is the occurrence of pregnancy out of wedlock in almost every corner of the villages and urban areas in

Indonesia. The author in his capacity as a lecturer at the largest Islamic university in Banten province and at a large private university in the

Pamulang Region, always do short research to the students in each class, with the question are there cases of pregnancy outside of marriage in their surrroundings?. The answer is really surprising the writer, because most of students stated it happened and there are cases of pregnancy before the marriage. This is why the author intended to do research about the adultery that occurred in Indonesia and wrote it in this scientific journal with international standard. Why the case of adultery and extramarital pregnancy occurs prevalent in Indonesia? This is the main question that the writer will researched and found the answer in detail and scientific way.

DISCUSSION

A. Definition of Adultery

The word of ( ﺎﻧﺰﻟا )

ﻰﻧﺰﯾ" means to perpetrate

1

, whereas in terminology, the adultery means sexual intercourse between a man and a woman through the vagina and not in the marriage contract or a contract like this. Zina also be defined as sexual intercourse between man and a woman when they are not bound by a marriage without any element of doubt in a sexual relationship and no ownership ties, such as master and slave women.

2

In the ownership of master to slave women case which is no longer exists today, it is automatically also does not apply anymore legally.

In this adultery definition, Muhammad Ahmad 'Assaf, said that all kinds of sexual relationships that are not on the basis of Islamic law could be called adultery that law has been clearly defined as it is one crime that is punishable by a certain punishment.

3

The definition of adultery as above is not limited clearly, in this case al-Malibari Zainuddin said the sexual intercourse can be said as adultery when it is done by inserting hasyafah

(head of the penis) or its size for those who do not have hasyafah in the one's genitals, both the front or the back reproductive organs of woman or man

1

Luis Ma’lûf, al-munjid fî al-Lugah wa al-a’lâm, (Beirut : Dâr al-Masyriq, 1986), 28 th

edition, p 308.

2

Wahbah az-Zuhailî, al-Fiqh al-Islâmî wa Adillatuh, ( Damascus : Dâr al-Fikr, 1989), 3th edi on, vol 6, p.

109.

3

Ahmad Muhammad ‘Assâf, Al-Ahkâm al-Fiqhiyyah fi Madzâhib al-Islâmiyyah al-Arba’ah, (Beirut : Dâr

Ihyâ’i al-Ulûm, 1988), 3th edi on, vol. 2, p. 498.

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and actors know that it is forbidden.

4

The jurists of Hanafi group as was quoted by Wahbah az-Zuhaili proposed quite clear definition and boundaries of adultery which is punishable with had . In their opinion, adultery is forbidden intercourse through alive woman's vagina, accompanied by a desire in consciousness, performed in the state that is practicing Islamic law fairly, not in a marriage or ownership contract; there is no element of doubtful ownership and marriage.

5

Thus, the editorial from one school to another school, in defining adultery is different, even though it means the same. This can be observed further as

Abdul Qadir Audah' post that according to the Maliki school, adultery is intercourse committed by adult on human genitals which is not belong to him in a state of conscious. Hanafi defined as sexual intercourse between a man and a woman who was not his and without doubt. While Shafii argued that the definition of adultery is inserting the penis into the mahram's genitals without any element of doubt and accompanied by lust, while the

Hanbali school defines adultery as a heinous act committed by a person in the vagina or anus. Additionally Wahbah Zuhaili defines az-zina is as forbidden intercourse, as well as Zaidiah school added definition that adultery is one's genitals meet other's one who are still alive and forbidden either through the vagina or anus without a doubtful element.

6

Based on the definitions of adultery are stated above, it can be concluded that the sexual contact could be called as adultery, when there are two elements; i.e the sexual relationship was forbidden and done on purpose in conscious state. Forbidden sexual intercourse is to enter the penis or its part into the vagina, causing both sperm exit or not. Woman who is copulated has no marital relationship with that man, either the legitimate and doubtful marriage, like marriage without witnesses or a guardian; a woman is not a slave of men.

B. Prohibition of Adultery

Fornication is forbidden based on the word of Allah and the words of the

Prophet Muhammad. So it is absolute and certainly no one against it. The legal basis for the prohibition of adultery in the Quran as follows:

نﻮﻨﻣﺆﺗ ﻢﺘﻨﻛ نإ ﷲ ﻦﯾد ﻲﻓ ﺔﻓأر ﺎﻤﮭﺑ ﻢﻛﺬﺧﺄﺗ ﻻو ةﺪﻠﺟ ﺔﺌﻣ ﺎﻤﮭﻨﻣ ﺪﺣاو ﻞﻛ اوﺪﻠﺟﺎﻓ ﻲﻧاﺰﻟاو ﺔﯿﻧاﺰﻟا

ﻦﯿﻨﻣﺆﻤﻟا ﻦﻣ ﺔﻔﺋﺎط ﺎﻤﮭﺑاﺬﻋ ﺪﮭﺸﯿﻟو ﺮﺧﻵا مﻮﯿﻟاو ﺎﺑ

( ٢ : ٢٤ / رﻮﻨﻟا )

4

Muhammad Syatâ’ ad-Dimiyatî, I’ânah at-Tâlibîn, ( Semarang : Toha Putera, without year), vol. 4, p. 142-

143.

5

6

az-Zuhaili, op. cit., p. 27.

‘Audah, ‘Abdul Qâdir al-Tasyrî' al-Jinâ`î al-Islâmî Muqâranan bi al-Qânûn al-Wad'î (Beirut : Muassasah al-

Risâlah, 1992), 9 th

edi on, vol. 2, p. 349.

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The fornicatress and the fornicator, flog each of them with a hundred stripes, and let not pity withhold you in their case, in a punishment prescribed by

Allah, if you believe in Allah and the Last Day, and let a party of believers witness their punishment. (Surat an-Nur: 2).

In the words of the Prophet PBUH mentioned that adultery is one big sin as the following hadith:

ﻚﻘﻠﺧ ﻮھو اﺪﻧ ﻮﻋﺪﺗ نأ لﺎﻗ ﷲ ﺪﻨﻋ ﺮﺒﻛأ ﺐﻧﺬﻟا يأ ﷲ لﻮﺳر ﺎﯾ ﻞﺟر لﺎﻗ دﻮﻌﺴﻣ ﻦﺑ ﷲ ﺪﺒﻋ ﻦﻋ

ﷲ لﺰﻧﺄﻓ كرﺎﺟ ﺔﻠﯿﻠﺣ ﻲﻧاﺰﺗ نأ لﺎﻗ يأ ﻢﺛ لﺎﻗ ﻚﻌﻣ ﻢﻌﻄﯾ نأ ﺔﻓﺎﺨﻣ كﺪﻟو ﻞﺘﻘﺗ نأ ﻢﺛ لﺎﻗ يأ ﻢﺛ لﺎﻗ

ﻦﻣو نﻮﻧﺰﯾ ﻻو ﻖﺤﻟﺎﺑ ﻻإ ﷲ مﺮﺣ ﻲﺘﻟا ﺲﻔﻨﻟا نﻮﻠﺘﻘﯾ ﻻو ﺮ ﺧآ ﺎﮭﻟإ ﷲ ﻊﻣ نﻮﻋﺪﯾ ﻻ ﻦﯾﺬﻟاو ) ﺎﮭﻘﯾﺪﺼﺗ

( باﺬﻌﻟا ﮫﻟ ﻒﻋﺎﻀﯾ ﺎﻣﺎﺛأ ﻖﻠﯾ ﻚﻟذ ﻞﻌﻔﯾ

From Abdullah Ibn Mas'ud, a man asked the Prophet PBUH: hai messenger of Allah, what is the greatest sin in the sight of Allah? He said, you make allies for God, when He created you, then he asked, then what else? You kill your son out of fear can not feed him, he asked again, and then anything else? He replied, you do adultery with your neighbor's wife, then Allah revealed the verse as an affirmation of the Prophet answer above, "and those who invoke not any other ilah (god) along with Allah, nor kill such person as

Allah has forbidden, except for just cause, nor commit illegal sexual intercourse- and whoever does this shall receive the punishment. The torment will be doubled to him (Narrated by Bukhari).

7

Another hadith associated with the assertion that adultery is a great sin that its perpetrator can be punished to death sentence, as below:

ئﺮﻣا مد ﻞﺤﯾ ﻻ ﻢﻠﺳ و ﮫﻟآو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر لﺎﻗ : لﺎﻗ ﮫﻨﻋ ﻰﻟﺎﻌﺗ ﷲ ﻲﺿر دﻮﻌﺴﻣ ﻦﺑا ﻦﻋ

( ﺔﻋﺎﻤﺠﻟا هاور ) ﺔﻋﺎﻤﺠﻠﻟ قرﺎﻔﻤﻟا ﮫﻨﯾﺪﻟ كرﺎﺘﻟاو ﺲﻔﻨﻟﺎﺑ ﺲﻔﻨﻟاو ﻲﻧاﺰﻟا ﺐﯿﺜﻟا : ثﻼﺛ ىﺪﺣﺈﺑ ﻻإ ﻢﻠﺴﻣ

From Abdullah Ibn Mas'ud said: Messenger of Allah PBUH said, 'the blood of a Muslim is not allowed (to be killed), except for one of three points; the married person who commits adultery, the person who removes lives

(others), and out of the religion (apostasy). (Narrated by al-Jama'ah).

8

From some of the arguments of the Qur'an and the hadith above, it could be argued that adultery is a sin and an absolute violation. Because adultery is prohibited in Islam, for Muslims who did it, should be punishable by penalties ( had ); it can be stoning or flogging a hundred times, depending on the category of offender whether muhsan or ghairu muhsan as will be described below.

7

Abû ‘Abdullâh Muhammad bin Ismâîl, al- Bukhârî , Sahîh al-Bukhârî,, (Indonesia : without place : Dahlan, without year), vol 4, p. 2743, see also ‘Alâùddîn 'Alî Ibn Balbân al-Farazî, Ibnu Hibbân, Sahîh ibn Hibbân,

(Beirut : Dar al-Kutub al-Ilmiyyah, 1989), 1

8 st

edi on, vol. 5, p. 297-298.

Al-Bukhârî, op. cit., p. 2784, see Muslim op. cit., p. 40, see Abû Dâûd, op. cit., vol , p. 126 and see also al-

Tirmidzî, Abu ‘Īsâ Muhammad bin Surah Sunan al-Tirmidzî, (Indonesia , without place : Dahlan, without year), vol. 2, p. 429.

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C. Sanctions of Adultery

The sanctions of adultery are not the same from one case to another case. All this depends on the objective conditions of the perpetrator. When adultery is committed by those who have never been legally married, it is called adultery of "gairu muhsan". Meanwhile, when adultery is committed by those who have married, whether they still have the status of a lawful spouse or already divorced or widowed, it is called adultery of "muhsan". a.

Flogging and Exile Punishment

The perpetrator of gairu muhsan adultery will be punished with flogging and exile.

9

The flogging punishment was based on the word of God in Surah an-

Nur paragraph 2 above, while the exile sanction was based on some of

Prophet's hadiths, namely:

ﺔﺋﺎﻣ ﺪﻠﺟ ﻦﺼﺤﯾ ﻢﻟو ﻰﻧز ﻦﻤﯿﻓ ﺮﻣﺄﯾ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﻲﺒﻨﻟا ﺖﻌﻤﺳ لﺎﻗ ﻲﻨﮭﺠﻟا ﺪﻟﺎﺧ ﻦﺑ ﺪﯾز ﻦﻋ

( ىرﺎﺨﺒﻟا هاور ) مﺎﻋ ﺐﯾﺮﻐﺗو

From Zaid ibn Khalid al-Juhani, said: I heard the Prophet Muhammad ordered to person who commits gairu muhsan adultery to be flogged 100 times and exiled for one year (HR. Bukhari).

10

Another hadith describes exile as a punishment for gairu muhsan adultery also narrated by Muslim and Abu Dawud as follows:

ﻦﮭﻟ ﷲ ﻞﻌﺟ ﺪﻗ ﻲﻨﻋ اوﺬﺧ ﻲﻨﻋ اوﺬﺧ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر لﺎﻗ لﺎﻗ ﺖﻣﺎﺼﻟا ﻦﺑ ةدﺎﺒﻋ ﻦﻋ

( دوادﻮﺑأو ﻢﻠﺴﻣ هاور ) ﻢﺟﺮﻟاو ﺔﺋﺎﻣ ﺪﻠﺟ ﺐﯿﺜﻟﺎﺑ ﺐﯿﺜﻟاو ﺔﻨﺳ ﻲﻔﻧو ﺔﺋﺎﻣ ﺪﻠﺟ ﺮﻜﺒﻟﺎﺑ ﺮﻜﺒﻟا ﻼﯿﺒﺳ

From Ubadah Ibn Samit said: the Prophet Muhammad said: take it from me, take it from me, that God has made for them a way out, unmarried adulterers will be punished with flogging one hundred stripes and exiled for one year, and for married adulteress 100 times flogging and stoning. (Narrated by

Muslim and Abu Dawood).

11

From both the above hadith, we know that sanction for offender of ghairu muhsan adultery is flogged 100 times and exiled. On the issue of flogging punishment, scholars are in agreement, but in exile sentence, scholars disagree whether the two types of punishment - flogging 100 times and exiled for a year- it must be combined and applied together?, The problem is described by Al-Jaziri as follows:

12

1) According to the Maliki School

The scholars of Maliki School see that a free and unmarried male who does adultery should be punishable by exile, after being flogged 100 times. Exile

9

Abdul Qâdir Audah, op. cit., p. 635.

10

Muslim, op. cit., p. 48, see also Abu Daud, op. cit., p. 144.

11

Muslim, op. cit., p. 48, see also Abu Daud, op. cit., p. 144.

12

Abdu ar-Rahmân, Al- Jazîrî, al-Fiqh 'alâ Madzâhib al-Arba'ah,, (Beirut : Dâr al-Fikr,1996), 1 st

edition, vol.

5, p. 57-58.

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 has to be done in a place far from his homeland, equal to the distance of

" masafah al-qasr " within one year. It is intended as a reproach to the perpetrators and as an attempt to distance themselves from adultery, because if the perpetrator is still in the first place, it would be potential as the talk and insults, even the people who were in the mosque, or in other associations will easy to obtain sin due to they do talk and gossip, then this exile is also supported by Al-Jauza'i.

13

As for the girl who has committed adultery, do not apply exile because if the girl punished with exile, it will be feared to cause a variety of slander and result in the emergence of a variety of other negative influences. In addition, Islamic law also forbids a woman to travel alone without a mahram, and then she should stay at home and keep away from the public. She had to retire from the public.

2) According to the Shafi'i and Hanbali sect.

Both of these schools found that the offender of gairu muhsan adultery both independence and adult status, two types of sentences can be applied for them, namely flogging 100 times and exiled to distant places so that they can feel how bad result of crimes they did, so must be isolated away from family and homeland. Punishment like this is practiced by Abu Bakr, Umar,

Uthman and Ali.

14

From here, most of the scholars said that the provision of such a consensus has been determined. Umar bin Khattab once sentenced to exile adulterer of ghairu muhsan to Sham, Usman down to Egypt, and Ali got to Basrah.

15

Such legal provisions referring to Rasullullah's hadith narrated by Ibn Samit Ubadah and Hadith Bukhari from Abu Hurairah and

Zaid bin Khalid above. Both Shafi and Hanbali law imposed exile in the same regard, either male or female, but for girl, she shall be accompanied by a mahram to accompany and care in exile.

16

3) According to the Hanafi school.

Hanafi found two types of punishment for ghairu muhsan adultery, e.i flogging 100 times and exile, can not be combined, because the exile punishment is not mentioned on Surah an-Nur: 2 above. If the exile is imposed, it means an addition to Quran text. The exile punishment only established by ahad hadith, but the ahad hadith can not be used as a foundation of Islamic law, then this type of punishment can not complete the

13

Al-Jazîrî, op. cit., p. 64, see also As-Sayyid Sâbiq, Fiqh as-Sunnah, (Beirut : Dâr al-Fikr, 1983), 4 th

edition, vol. 2, p. 346, see also Ahmad Muhammad ‘Assâf, op. cit., p. 503.

14

Abi al-Mawâhib ‘Abu al-Wahhâb ibn Ahmad ibn Ali al-Ansârî Asy-Sya’rânî, Al-Mîzân al-Kubrâ,

(Singapore : Sulaiman Mar’i, without year), p. 154.

15

Al-Mâwardî al, Abul Hasan ‘Alî bin Muhammad Ibn Habîb -Hâwî al-Kabîr, (Beirut : Dar al-Fikr, 1994), vol.

17, p. 19.

16

Al-Jazîrî, op. cit., p. 64-65

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 concept of punishment for gairu muhsan adultery. This school is based on

Abu Hanifa's view, in which he argued that the judgment of this seclusion is a type of takzir sentence that are closely related to the concept of expediency. As long as the concept of expediency is not obtained with the implementation of exile punishment, it should be suspended, even expressly

Abu Hanifah said it was sufficient by exiling, it will be a slander, means, the slander should be avoided by leaving the punishment of exile.

17

In explaining the views and arguments of the Hanafi school, As-Sabuni suggests that there are at least four compelling reasons that they believe in, namely:

18

a) Abu Hanifa interpreted the meaning of Surah an-Nur: 2 above externally, where in verse it only mentioned flogging 100 times sentence, without any penalty exile. If the exile punishment is legalized, it must be mentioned explicitly, while ahad hadiths about the exile punishment was not strong enough to abrogate the Quran text. b) Abu Hanifah also argued with a hadith stating that if any slave do adultery, and she was proven then punish her with stripes, not be reviled but if she comes back to do it, leave her although being pregnant. He argued that flogging punishment as in the description of this hadith has been perfect, so if that exile punishment should be imposed, Prophet Muhammad will definitely mention it. c) Abu Hanifah also argue with a hadith narrated by Ali explaining that ghairu muhsân adultery is punishable by flogging only, not be discarded because it was feared would cause a scandal. d) According to Abu Hanifah, Umar ibn al-Khattab once sentenced exile to

Rabi'a Ibn Umaiah, after that he never did. So the conclusion of Abu

Hanifah's opinion is the exile punishment included to takzir , not to hadd .

The takzir execution left to local judges as rulers. If there is benefit, the exile sentence carried out but if not, then the punishment should be abandoned.

In commenting on the opinion of Imam Abu Hanifah above, Al-Jaziri said that it is caused by the exile punishment is not mentioned on an-Nur: 2 and the exile punishment is only determined by the ahad hadith which means it is an effort to add the stipulation of Quran text. And according to the scholars' opinion among Hanafi school that the hadith about the exile punishment is not a punishment ( hadd ) but it is only a kind of takzir punishment.

19

17

Al-Jazîrî, op.cit., p.64, see also Asy-Sya’rânî, Loc. cit.

18

Muhammad Alî as-Sâbûnî, Rawâì’ al-Bayân fî Tafsîr âyât Ahkâm, (Beirut : Dâr al-Fikr, without year), vol. 2, p. 28, see also Al-Mawardi, Loc. cit.

19

Al-Jazîrî, op. cit., p. 64.

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The rejection of Hanafi school against ahad hadith regarding the punishment of exile, by Ash-Syaukani and As-San'ânî

20

rated as an attitude of

"inconsistent" school, because in other issues, such as the annulment of wudu problem for laughing out loud, the permissibility of ablution with wine and other problems, the Hanafi school can accept ahad hadith as arguments, in fact, all of that was not mentioned in the Qur'an, but only determined by the hadith with the same status as hadith about the exile sentence above.

Why are they not willing to admit the existence of exile punishment such acceptance hadith about the cancellation of ablution with wine? The answer is that the Hanafi school's refusal was not absolute, but is limited on implementation and enforcement, which means that the exile penalty could be imposed but not in the name of punishment ( hadd) , but in the takzir punishment, where the implementation is left to the local judge's wisdom.

The logical reason that the exile punishment for the adulterer of ghairu muhsân , will not solve the problem. But it could potentially cause a scandal and unrest in the new place. From the long explanation above, authors concluded that based on the consensus of majority scholars' opinions that offender of ghairu muhsân adultery, should be punished and sentenced to flogging 100 times and exile for one year. But for the last punishment, according to Imam Malik and Imam al-Auza'I, it can not be applied to women, while according to Imam Shafi'i, Imam Ahmad and Imam Daud az-

Zahiri, the exile can be applied to fornicatress and the fornicator.

Meanwhile, according to Imam Abu Hanifah, exile as an additional penalty of Surah an-Nur:2 stipulation, not as punishment ( hadd ), but it is takzir punishment based on the judge's policy as the local supervisor.

21 b. Stoning Punishment

Stoning is also called the death stooning. Its implementation is done by throwing stones at the suspect to death. This punishment is sanctioned for muhsân adultery that proven and has qualified for this penalty. Unlike the flogging punishment for ghairu muhsân adultery that mentioned explicitly in the Quran, stoning is not mentioned at all any provision of a single verse in the Qur'an Manuscripts. Term of stoning was included in several hadith of the Prophet PBUH whose validity has been agreed upon by the scholars of the various schools, in the hadith of stoning is:

20

Muhammad Ibn Ali Ibn Muhammad Asy-Syaukânî, Nail Al-Autâr, (Beirut : Dâr al-Fikr, without year), vol.

7, p. 252, see also Muhammad Ibn Isma’il as-San’ânî, Subul as-Salâm, (Indonesia : without place : Dahlan, without year)vol. 4, p. 4.

21

Abdul Qâdir Audah, op. cit., vol. 2 p. 380-381, see also An-Nawâwî, Syarah Sahîh Muslim, (Beirut : Dâr al-Fikr, 1984), 4 th

edi on, vol. 11, p. 189.

123



لﻮﺳر ﻰﺗأ باﺮﻋﻷا ﻦﻣ ﻼﺟر نإ ﻻﺎﻗ ﺎﻤﮭﻧأ ﺎﻤﮭﻨﻋ ﷲ ﻲﺿر ﻲﻨﮭﺠﻟا ﺪﻟﺎﺧ ﻦﺑ ﺪﯾزو ةﺮﯾﺮھ ﻲﺑأ ﻦﻋ

ﻮھو ﺮﺧﻵا ﻢﺼﺨﻟا لﺎﻘﻓ ﷲ بﺎﺘﻜﺑ ﻲﻟ ﺖﯿﻀﻗ ﻻإ ﷲ كﺪﺸﻧأ ﷲ لﻮﺳر ﺎﯾ لﺎﻘﻓ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ

نﺎﻛ ﻲﻨﺑا نإ لﺎﻗ ﻞﻗ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر لﺎﻘﻓ ﻲﻟ نذأو ﷲ بﺎﺘﻜﺑ ﺎﻨﻨﯿﺑ ﺾﻗﺎﻓ ﻢﻌﻧ ﮫﻨﻣ ﮫﻘﻓ أ

ﺖﻟﺄﺴﻓ ةﺪﯿﻟوو ةﺎﺷ ﺔﺋﺎﻤﺑ ﮫﻨﻣ ﺖﯾﺪﺘﻓﺎﻓ ﻢﺟﺮﻟا ﻲﻨﺑا ﻰﻠﻋ نأ تﺮﺒﺧأ ﻲﻧإو ﮫﺗأﺮﻣﺎﺑ ﻰﻧﺰﻓ اﺬھ ﻰﻠﻋ ﺎﻔﯿﺴﻋ

ﷲ لﻮﺳر لﺎﻘﻓ ﻢﺟﺮﻟا اﺬھ ةأﺮﻣا ﻰﻠﻋ نأو مﺎﻋ ﺐﯾﺮﻐﺗو ﺔﺋﺎﻣ ﺪﻠﺟ ﻲﻨﺑا ﻰﻠﻋ ﺎﻤﻧأ ﻲﻧوﺮﺒﺧﺄﻓ ﻢﻠﻌﻟا ﻞھأ

ﺔﺋﺎﻣ ﺪﻠﺟ ﻚﻨﺑا ﻰﻠﻋو در ﻢﻨﻐﻟاو ةﺪﯿﻟﻮﻟا ﷲ بﺎﺘﻜﺑ ﺎﻤﻜﻨﯿﺑ ﻦﯿﻀﻗﻷ هﺪﯿﺑ ﻲﺴﻔﻧ يﺬﻟاو ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ

ﺎﮭﺑ ﺮﻣﺄﻓ ﺖﻓﺮﺘﻋﺎﻓ ﺎﮭﯿﻠﻋ اﺪﻐﻓ لﺎﻗ ﺎﮭﻤﺟرﺎﻓ ﺖﻓﺮﺘﻋا نﺈﻓ اﺬھ ةأﺮﻣا ﻰﻟإ ﺲﯿﻧأ ﺎﯾ ﺪﻏا مﺎﻋ ﺐﯾﺮﻐﺗو

( ىرﺎﺨﺒﻟا هاور ) ﺖﻤﺟﺮﻓ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر

From Abu Hurairah and Zaid ibn Khalid they said: we are with the Prophet

PBUH suddenly there was someone who stood up and said, I will swear to

God in front of you unless you give us the decision based on the Book of

Allah. Then there are people who are smarter denied saying; provide us with the decision based on the Book of Allah and permit me, then tell the person to report, so he said: my son is a worker on one, he committed adultery with his mistress, I would redeem it with one hundred goats and a slave, then I ask the clever people, then they said that my son should be whipped a hundred times and exiled for one year, and the wife of the employer should be sentenced to stoning, the Prophet PBUH decreed: on behalf of my soul is on His hand, I surely will decide your problems, and your son must be flogged hundred times and exiled for a year, and you, O

Unais, observe the woman, if she confessed, and then stone her! Unais then examined and found the woman admitted, then she would be stoned.

(Narrated by Bukhari).

22

With different editorial, Imam Muslim narrated on stoning as follows:

ﻦﺑ ﺮﻤﻋ لﺎﻗ لﻮﻘﯾ سﺎﺒﻋ ﻦﺑ ﷲ ﺪﺒﻋ ﻊﻤﺳ ﮫﻧأ ﺔﺒﺘﻋ ﻦﺑ ﷲ ﺪﺒﻋ ﻦﺑ ﷲ ﺪﯿﺒﻋ ﻲﻧﺮﺒﺧأ لﺎﻗ بﺎﮭﺷ ﻦﺑا ﻦﻋ

ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ اﺪﻤﺤﻣ ﺚﻌﺑ ﺪﻗ ﷲ نإ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر ﺮﺒﻨﻣ ﻰﻠﻋ ﺲﻟﺎﺟ ﻮھو بﺎﻄﺨﻟا

ﻢﺟﺮﻓ ﺎھﺎﻨﻠﻘﻋو ﺎھﺎﻨﯿﻋوو ﺎھﺎﻧأﺮﻗ ﻢﺟﺮﻟا ﺔﯾآ ﮫﯿﻠﻋ لﺰﻧأ ﺎﻤﻣ نﺎﻜﻓ بﺎﺘﻜﻟا ﮫﯿﻠﻋ لﺰﻧأو ﻖﺤﻟﺎﺑ ﻢﻠﺳو

ﺪﺠﻧ ﺎﻣ ﻞﺋﺎﻗ لﻮﻘﯾ نأ نﺎﻣز سﺎﻨﻟﺎﺑ لﺎط نإ ﻰﺸﺧﺄﻓ هﺪﻌﺑ ﺎﻨﻤﺟرو ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر

اذإ ﻰﻧز ﻦﻣ ﻰﻠﻋ ﻖﺣ ﷲ بﺎﺘﻛ ﻲﻓ ﻢﺟﺮﻟا نإو ﷲ ﺎﮭﻟﺰﻧأ ﺔﻀﯾﺮﻓ كﺮﺘﺑ اﻮﻠﻀﯿﻓ ﷲ بﺎﺘﻛ ﻲﻓ ﻢﺟﺮﻟا

( ﻢﻠﺴﻣ هاور ) فاﺮﺘﻋﻻا وأ ﻞﺒﺤﻟا نﺎﻛ وأ ﺔﻨﯿﺒﻟا ﺖﻣﺎﻗ اذإ ءﺎﺴﻨﻟاو لﺎﺟﺮﻟا ﻦﻣ ﻦﺼﺣأ

Ibn Shihab said: Ubaidullah Ibn Abdullah Ibn 'Atabah apprise me that he heard Abdullah Ibn Abbas said: Umar Ibn al-Khattab said sitting in the

Prophet Muhammad's pulpit: Allah has sent Muhammad PBUH with truth, and God also reveals the Scripture to him, and among those revelations are stoning verse that we have read it, I was worried that at any moment someone said that in the book of God we do not get the terms of stoning, they have gone astray by leaving the obligation for which Allah has sent down, indeed, the stoning is as a right punishment in God's book, which

22

Al-Bukhârî, op. cit., p. 2727-2728.

124


University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 applied to muhsan adulteress for men and women, when it was there evidence of pregnancy or confession. (Narrated by Muslim).

23

On the basis of some hadith that match the two hadiths above, majority of scholars have agreed that even the Quran does not mention stoning, but the sentence is still recognized its existence. In this case, Ibn Rushd said there was a small group of people reject the concept of stoning, he mentions this group as firqatan min ahl al Ahwa where they think the punishment for offenders of any kind of adultery is flogging.

24

The group of people who reject the stoning is called explicitly by the As-Sabuni as the Khawaarij which believe that stoning is not included to Islamic law. They have three reasons that he thought the reason was too weak, weaker than a spider's web. The three reasons are:

25 a) The penalty of stoning is too sadistic and supposing it is prescribed by

Islam certainly it will be mentioned in the Qur'an, when everyone knows that it is not a single verse in the Qur'an which states that stoning punishment. b) In the case of adultery committed by the slave, he must be punished half penalty of free man. If the flogging one hundred times is divided in two, it would be no problem, but related to stoning, it can not be divided in two, so that kind of punishment is unauthorized applied to a free man. c) Type of punishments for adultery are common, can be applied to every fornication, so specialization efforts of punishment for muhsan adulterers from the general law, will contradict Koran.

26

The three arguments of khawarij above denied by the ahlusunah generally with the explanations as follows:

No mention of stoning in the A-Qur'an, does not mean it was not prescribed.

Because there are many legal provisions of Sharia that are not mentioned by

Koran but spelled out clearly in the hadiths of the Prophet, and God tells us to always follow the Prophet and execute all his commands. Allah says:

( ٧ : ٥٩ / ﺮﺸﺤﻟا ) ..

اﻮﮭﺘﻧﺎﻓ ﮫﻨﻋ ﻢﻛﺎﮭﻧ ﺎﻣو هوﺬﺨﻓ لﻮﺳﺮﻟا ﻢﻛﺎﺗآ ﺎﻣو ...

... And whatsoever the messenger (Muhammad PBUH) gives you, take it; and whatsoever he forbids you, abstain (from it).... "(Surah Al-Hasyr/59: 7)

And as our conviction, that all the activities of the Prophet Muhammad are based on the revelation of God, as mentioned in verse:

( ٤ ٣ : ٥٣ / ﻢﺠﻨﻟا ) ﻰﺣﻮﯾ ﻲﺣو ﻻإ ﻮھ نإ ىﻮﮭﻟا ﻦﻋ ﻖﻄﻨﯾ ﺎﻣو

23

Muslim, op. cit., p. 49.

24

As-Sâbûnî, op. cit., p. 21, lihat juga Muhammad Alî as-Sâyis, Tafsîr âyât al-Ahkâm, (Beirut : Dâr al-Fikr, without year), vol. 3, p. 106-107.

25

26

Ibn Rusyd, op. cit., p. 325.

As-Sâbûnî, op. cit., p. 22.

125



"Nor does he speak of (his own) desire. It is only a revelation revealed".

(Surah An-Najm/53: 3-4).

Thus, how they think that stoning is not prescribed by Islam, when the

Prophet Muhammad carried out the punishment of stoning, and with him the companions also stoned, or at least he ordered to carry out the stoning.

About the role and function of the Prophet Muhammad also be clearly mentioned in the Holy Quran:

( ٤٤ : ١٦ / ﻞﺤﻨﻟا ) نوﺮﻜﻔﺘﯾ ﻢﮭﻠﻌﻟو ﻢﮭﯿﻟإ لﺰﻧ ﺎﻣ سﺎﻨﻠﻟ ﻦﯿﺒﺘﻟ ﺮﻛﺬﻟا ﻚﯿﻟإ ﺎﻨﻟﺰﻧأو ...

... and we have sent down the Qur'an to you, that you may explain to mankind what has been revealed to them, and that they may give thought".

(Surah An-Nahl/16: 44) (1). Allah said:

( ٢٥ : ٤ / ءﺎﺴﻨﻟا ) ... باﺬﻌﻟا ﻦﻣ تﺎﻨﺼﺤﻤﻟا ﻰﻠﻋ ﺎﻣ ﻒﺼﻧ ﻦﮭﯿﻠﻌﻓ ﺔﺸﺣﺎﻔﺑ ﻦﯿﺗأ نﺈﻓ ﻦﺼﺣأ اذﺈﻓ ...

It means: "... and after they have been taken in wedlock, if they commit illegal sexual intercourse, their punishment is half that for free (unmarried) women…"(Surat an-Nisa ': 25)

This verse is not a reason for invalidating the stoning, because the word

" adzab " in this paragraph is not stoning sanction, but flogging punishment that could be known its half of number as punishment for the adulterous slave. And in the case of stoning, God must have known that the punishment is not possible to be devided in two, so that the slave should be stoned to half death. Therefore, using this verse as an excuse for invalidating the stoning is totally unacceptable. While the Khawarij's opinion of specialization stoning of verses about adultery are considered contrary to the Qur'an is a remarkable ignorance, because there are many verses that still have been specialized by the hadiths of the Prophet, as the hadith about the theft that perpetrators hands must be cut that are not mentioned in the Qur'an, concerning the number of prostrations in the prayer which is also not explained clearly by the Qur'an, zakat nisab and many other things that are not mentioned directly in the Qur'an, but it is prescribed on the basis of the

Prophet Muhammad PBUH hadiths.

27

Further Muhammad Ali as-Sâyis found specialization of Qur'an by ahad hadith is possible and permissible, because even though the Koran text is absolute, but its meaning could be speculation. And in the case of stoning, the hadith that explain it is mutawatir or at least its meaning is mutawatir , as scholars of the Khawarij might not admit it.

28

From the above, the authors can conclude that the stoning punishment for adulterers of muhsan , although not mentioned in the

Koran, but the provisions stipulated by the hadiths of the Prophet, ijma ', the

27

As-Sâbûnî, op. cit., p. 24.

28

As-Sâyis, op. cit., p.107.

126


University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 consensus of the Prophet's companions and the consensus of the scholars of the school of jurisprudence anywhere. Then the group of people who think that stoning is not a provision of Islamic law on the grounds not mentioned in the Qur'an, then this group is questionable in terms of Islamic consistency and its faith.

D. Effects of Adultery

Besides the juridical effect in form of punishment that imposed for offender of adultery, the scholars also suggest some of the issues arising from adultery are:

29

1.On the issue of marriage

Imam Ahmad Ibn Hanbal said that believers should not marry a person who has committed adultery. It is based on the word of Allah:

ﻦﯿﻨﻣﺆﻤﻟا ﻰﻠﻋ ﻚﻟذ مﺮﺣو كﺮﺸﻣ وأ ناز ﻻإ ﺎﮭﺤﻜﻨﯾ ﻻ ﺔﯿﻧاﺰﻟاو ﺔﻛﺮﺸﻣ وأ ﺔﯿﻧاز ﻻإ ﺢﻜﻨﯾ ﻻ ﻲﻧاﺰﻟا

} ٣ : ٢٤ / رﻮﻨﻟا }

"the adulterer-fornicator marries not but an adulteress-fornicatress or a mushrikah, and the adulteress-fornicatress none marries her except an adulterer-fornicator or a mushrik. Such a thing is forbidden to the believers

(of Islamic monotheism)". (Surah An-Nur/24: 3)

On the basis of the verse above, Ibn Mas'ud, as quoted by Ash-Syaukani see a man who committed adultery with a woman and then married her, then they are always considered to do adultery. For the above verse is as confirmation of prohibition adulteress to be married.

30

However, majority of scholars argue that the content of this paragraph is not to forbid marriages between believers and people who have committed adultery, but it was limited to slur perpetrators of adultery. The adultery is forbidden while married people who have committed adultery is not prohibited. Their reasoning is that verse has been cancelled by paragraph 32

31 of the same letter, namely:

ﻊﺳاو ﷲو ﮫﻠﻀﻓ ﻦﻣ ﷲ ﻢﮭﻨﻐﯾ ءاﺮﻘﻓ اﻮﻧﻮﻜﯾ نإ ﻢﻜﺋﺎﻣإو ﻢﻛدﺎﺒﻋ ﻦﻣ ﻦﯿﺤﻟﺎﺼﻟاو ﻢﻜﻨﻣ ﻰﻣﺎﯾﻷا اﻮﺤﻜﻧأو

( ٣٢ : ٢٤ / رﻮﻨﻟا } ﻢﯿﻠﻋ

"And marry those among you who are single and (also marry) the pious of your slaves and maid-servants. If they be poor, Allah will enrich them out of

His bounty. And Allah is All-Sufficent for his creatures' needs, All-Knowing

(about the state of the people)." (Surah An-Nur/24: 32)

In this case, imam Abu Hanifah see someone who committed adultery with a woman, he should marry her and other people may marry. Even other

29

Ensiklopedi Hukum Islam, op. cit, p. 2031-2032

30

Muhammad Ibn Ali Ibn Muhammad asy-Syaukânî, Fath Qadîr al-jâmi’ Baina Fanni ar-Riwâyah wa

ad_dirâyyah Min ilm at-Tafsîr, (Beirut : Dâr al-Fikr, h), vol. 4, p. 5.

31

Al-Qur’tubî, op. cit., p. 169

127


University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 scholar argue that the marriage of adulterer is valid and if a wife or husband committed adultery, then their marriage contract is still valid.

32

But Hasan

Basri found adultery can cancel the contract.

In addition to the above verse, majority of scholars also argued with a hadith narrated by An-Nasa'i as follows:

لﺎﻘﻓ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر ﻰﻟإ ﻞﺟر ءﺎﺟ ﻻﺎﻗ سﺎﺒﻋ ﻦﺑا ﻦﻋ ﺮﯿﻤﻋ ﻦﺑ ﺪﯿﺒﻋ ﻦﺑ ﷲ ﺪﺒﻋ ﻦﻋ

لﺎﻗ ﺎﮭﻨﻋ ﺮﺒﺻأ ﻻ لﺎﻗ ﺎﮭﻘﻠط لﺎﻗ ﺲﻣﻻ ﺪﯾ ﻊﻨﻤﺗ ﻻ ﻲھو ﻲﻟإ سﺎﻨﻟا ﺐﺣأ ﻦﻣ ﻲھ ةأﺮﻣا يﺪﻨﻋ نإ

( ﻰﺋﺎﺴﻨﻟا هاور ) ﺎﮭﺑ ﻊﺘﻤﺘﺳا

From Ubaidullah ibn Ubaid Ibn 'Umair, from Ibn Abbas, they said there was someone who came to the Prophet Muhammad said, I have a wife who I love very much, but she could not resist any handlers hand, the Messenger of

Allah said "divorce her", the man replied I can not be calm without her, so the Messenger of Allah said "have fun with her". (Narrated by An-Nasa'i).

33

Besides some hadiths above, another reason of majority scholars is the hadith narrated by Ibn Majjah below:

( ﮫﺟﺎﻣ ﻦﺑا هاور ) لﻼﺤﻟا ماﺮﺤﻟا مﺮﺤﯾ ﻻ لﺎﻗ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﻲﺒﻨﻟا نأ ﺮﻤﻋ ﻦﺑا ﻦﻋ

From Ibn 'Umar that the Prophet PBUH said: unlawful thing can not forbid the permitted thing (Narrated by Ibn Majjah).

34

The purpose of the above hadith is that although adultery is forbidden, but can not preclude the permissibility of marriage that is lawful.

Furthermore, the scholars of Hanafi school found the permissibility of marrying prostitutes, or commercial sex workers (CSW) must notice the condition of the woman. If she is pregnant, then the contract is only allowed but the intercourse is illegitimate, when she married another man than her pregnant partner, but if both partners adultery is married, they may do intercourse for being husband and wife.

35

So, the adulteress who married to another man, not her partner, is allowed to do intercourse after her fetus was born, the reason is a hadith:

ﻦﻣ لﺎﻗ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﻲﺒﻨﻟا ﻦﻋ ﺖﺑﺎﺛ ﻦﺑ ﻊﻔﯾور ﻦﻋ ﷲ ﺪﯿﺒﻋ ﻦﺑ ﺮﺴﺑ ﻦﻋ ﻢﯿﻠﺳ ﻦﺑ ﺔﻌﯿﺑر ﻦﻋ

( ىﺬﻣﺮﺘﻟا هاور ) هﺮﯿﻏ ﺪﻟو هءﺎﻣ ﻖﺴﯾ ﻼﻓ ﺮﺧﻵا مﻮﯿﻟاو ﺎﺑ ﻦﻣﺆﯾ نﺎﻛ

32

Az-Zuhailî, at-Tafsîr al-Munîr fi al-‘Aqîdah wa as Syarî’ah wa al-Manhaj, (Beirut : Dâr al-fikr, 1991), 1 st edi on, vol. 18, p 139.

33

an-Nasâ’î, Sunan an-Nasâ’î, (Beirut : Dâr al-Ma;rifah, 1991), 1 st

edi on, vol. 5, p. 375, see also Abî al-

Faraj Abdirrahmân Ibn Alî Ibn al-Jauzî al-Quraisyî, al-Musû’ât, (Beirut : Dâr al-Fikr,1983), 1 st

edi on, vol. 2, p. 272.

34

Abû ‘Abdullâh Muhammad bin Yazîd al-Qazwinî, Ibnu Mâjjah, Sunan Ibnu Mâjjah,, (Beirut : Dâr al-Kitab al-‘Arabi, h), vol. 1, p. 649.

35

Az-Zuhailî, al-Fiqh al-Islâmî wa Adillatuh, op. cit., vol.7, p. 149.

128



From Rabi'ah Ibn Sulaym, from Ubaidullah Ibn Basir, of Ruwaifi 'Ibn Sabit, from the Prophet PBUH said: he who believes in Allah and the Last Day should not spill his sperm on someone else's child. (Narrated by Tirmidhi).

36

While scholars of the Maliki school found the permissibility of marrying an adulteress on condition that has been done istibrâ' -an effort to repent and improve, and rid herself of nasty profession and she has actually quit her job and keep waiting for three times menstruation-. For unless istibrâ ', the contract will be null and illegitimate, and should be separated in pregnant condition or not.

2. On the issue of waiting period (iddah )

Jurists differed on waiting period ( iddah ) obligation for women who commit adultery because one of iddah purposes is to know the woman's uterus containing or not, although she does not have a husband. Scholars of Hanafi,

Shafi'i and Hanbali school found that woman who did adultery is unauthorized and improper to do iddah , because the waiting period (iddah ) is prescribed by shari'ah for women who marry legally, not for being pregnant out of wedlock. But the Maliki school still gives remarks that if the waiting period is still being done by a woman who commits adultery, it's just for unmixxing the sperm with others' sperm, especially if the man who marries her is not her adultery partner.

37

3. In determining mahram

Scholars of Maliki, Shafi'i, and Hanbali school found sexual relations outside of marriage is never going to result a mahram relationship between the two sides. The adulteress can marry the family of her adultery partner.

As for the man, it is okay to marry the mothers and families of his fornicated woman.

38

In this matter, Imam Shafi'i allegedly found that adultery is not going to affect the presence or absence of mahram relationship. Thus the biological father, if he is willing, still can marry his biological children. Of course this is not possible or very little chance happening. If there was, certainly not a marriage, but forced sexual intercourse or rape father over his daughter, to be a case of incest. This opinion is only as flood idea of Imam

Shafi'i that he thinks so highly academic. As said by writer in class of PPs

UIN Jakarta and (late) Prof. Satria Efenndi, M. Zein in 1998.

However, scholars of the Hanafi school, Abdurrahman al-Auza'i, and Sufyan al-Tsauri argues that what is prohibited in a legal marriage is also forbidden in sexual relations outside of marriage. Therefore, according to them,

36

At-Timidzî, op. cit., vol. 3, p. 428.

37

Az-Zuhailî, op. cit.,p.634.

38

Az-Zuhailî, op. cit.,p. 135, see also Al-Syâfi'î, Abû ‘Abdillâh Muhammad Ibn Idrîs al-Umm, (Beirut ; Dar al-

Fikr, 1983), 2 nd

edi on, vol. 5, p. 166.

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 muhrim and mahram relationship applies for the couple as applied in a legal marriage. Because the meaning of the word "marriage" etymologic according to Abu Hanifa is the sexual intercourse itself, not marriage. But civil rights of kid still would not have been obtained if the sexual contact that occurred was not based on a legal marriage ceremony, both valid according to religion or state as mandated by Article 2 paragraph (2) of Law

No. 1 Year 1974 on jo Marriage Article 5 Compilation of Islamic Law.

4. On the issue of using the earnings of fornication

According to the jurists, this profession is the most vile and damnable work.

Issues arising from the use the earnings of this work, which in fiqh called mahr al-bagyi , as mentioned in the hadith of Muslim as follows:

ﻲﻐﺒﻟا ﺮﮭﻣو ﺐﻠﻜﻟا ﻦﻤﺛ ﻦﻋ ﻰﮭﻧ ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر نأ يرﺎﺼﻧﻷا دﻮﻌﺴﻣ ﻲﺑأ ﻦﻋ

( ﻢﻠﺴﻣ هاور ) ﻦھﺎﻜﻟا ناﻮﻠﺣو

From Abu Mas'ud al-Ansari, truly the Prophet Muhammad prohibit use of dog price, prostitute wage, and soothsayer wage. (Narrated by Muslim).

39

On the basis of this hadith, fiqh scholars agree that prostitute wage is prohibited to be used and should not be returned to the payer, but in this case

Ibn Qayyim al-Jauziah take the attitude that the money of prostitute can be used for public purposes on condition not to be consumed.

40

In addition to some juridical consequences, which is also related to the theoretical jurisprudence on the issue of adultery is almost happening around the country in the form of prostitution. It is the biggest cause of the spread of the vicious and deadly AIDS / HIV virus. Even Dadang Hawari explicitly said the transmission of the AIDS virus is caused by "promiscuous" (change sexual partners through prostitution) and the use of shared needles among drug addicts which are generally the perpetrators are teenagers.

41

From the above discussion, the author can concludes that adultery could have repercussions not only concerned with the problems of jurisprudence, but also closely related to public health, both mental and physical health, reproductive health even, so it is purpose of Islamic teachings to prohibit adultery and strongly encourage marriage in order to preserve the purity of lineage as one of the key issues that must be maintained in the teachings of

Islamic law.

E. Illegitimate child and married by accident in Islamic Law

Basically every children were born -both in and outside of marriage- have the status and condition of fitrah , clean of sin and stain. No child is born

39

At-Timidzî, op. cit., vol. 2, p. 300, see also Muslim, op. cit., vol. 1, p. 784.

40

Ensiklopedi Hukum Islam, op. cit., p. 2032.

41

Dadang Hawari, Alquran Ilmu Kdokteran Jiwa dan kesehatan Jiwa, (Yogyakarta : PT. Dana bhakti prima

Yasa, 1997), 3 rd

edi on, p. 92.

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 with a sin derived of anyone including his parents who did adultery.

Adultery is one of big sins which is expressed by Husayn al-Dzahabi that adultery is the tenth of big sins.

42

For long time ago, the nickname is already attached to a child born in adultery cases. Not so obvious, when nickname appeared in this world. But it is clear whatever the name, nicknames and title of illegitimate child, it legally remains as clean and holy children. The illegitimate child also in the category of " Maulud " (born children), as mentioned in the hadith:

ﻰﻠﻋ ﺪﻟﻮﯾ دﻮﻟﻮﻣ ﻞﻛ : ﻢﻠﺳو ﮫﯿﻠﻋ ﷲ ﻰﻠﺻ ﷲ لﻮﺳر لﺎﻗ : لﺎﻗ ، ﮫﻨﻋ ﷲ ﻲﺿر ، ةﺮﯾﺮھ ﻲﺑأ ﻦﻋ

ﻦﺑاو ، ﻰﺋﺎﺴﻨﻟاو ، ﻰﻣراﺪﻟاو ، ﺪﻤﺣأ ه اور ) ﮫﻧﺎﺴﺠﻤﯾ وأ ، ﮫﻧاﺮﺼﻨﯾ وأ ، ﮫﻧادﻮﮭﯾ هاﻮﺑأ نﻮﻜﯾ ﻰﺘﺣ ، ةﺮﻄﻔﻟا

( ﻰﻘﮭﯿﺒﻟاو ، ﻢﯿﻌﻧ ﻮﺑأو ، ﻢﻛﺎﺤﻟاو , ﻰﻧاﺮﺒﻄﻟاو ، نﺎﺒﺣ ﻦﺑاو ، ﺮﯾﺮﺟ

From Abu Hurairah ra said, the Prophet SAW said, every child is born in a state of fitrah , until his parents who make him Jewish, Christian or

Zoroastrian (Reported by Ahmad, al-Darimi. Al-Nasa'i, Ibn Jarir, Ibn

Hibban, al- Tabarani, al-Hakim, and Abu Na'im al-Bayhaqi)

Based on this hadith, it can be stated here that every child without exception, including those born in the case of sexual affair, cohabitation, adultery and under normal conditions remain in innocent condition. Moreover, bear the burden of the sins of his parents were involved in the case of illicit relations.

In this relevance, people sometimes do not understand the meaning of fitrah word, as the hadith above. There are some who argue that because every baby born in innocent state, then it is proper that the child was not given certain sanction, and he should be released from various lawsuits. Therefore, the part of the society's comments, illegitimate children should not be treated specifically and labeled as unclean, dirty child, a bastard and a few other titles including the negatives mentioned that they forever will never have a lineage with his biological father and so on that it would be very detrimental to the psychological development of the child.

When it is read at a glance as if such sentence is correct and in line with the

1945 Constitution, basic human rights and Child Protection law. But if it is reflected and explored in depth, this statement basically is inaccurate.

Because Islamic law about illegitimate child who will not have a lineage relationship with his biological father and not be able to accept wherewithal, guardianship and inheritance rights not as a punishment for them. But as punishment for his biological father who normally would be happy with the birth of the child, then he can be proud of his son, so his parents pride is manifested by the biological father's right to give the lineage, livelihood,

42

Al-Dzahabî, Syamsuddîn, Kitâb al-Kabâìr, (Jakarta : Syirkah Dina Mutiara Berkah Utama, without year), p. 42

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 guardianship and inheritance rights to his son. Parents, especially the biological father has been forbidden to be proud of his biological child, because his biological father had done adultery as a great offense with this child's mother.

But the fact says another, the biological father is punished with moral punishment that should not be proud and accept some fundamental rights over his own child, was misinterpreted by stating that as in the case of children born out of wedlock, the child suffered as an illegitimate child, unclean child, bastard and some other very bad nicknames. Herein the misconception lies that really needs to be clarified. The innocent child was not convicted, but his biological father and mother who had already sinned because of adultery.

What about his biological mother? Why she was not convicted as his father that was disconnected all his civil rights to the child? The answer is there are some scholars who also sentenced the mother as his real father. But majority of scholars generally disagree if the mother was also given the same sentence with his biological father. Their reason is because the Prophet's text hadith said so. And when it is examined logically, perhaps because the role of the mother during pregnancy and suckle her child is very heavy.

What the writer pointed out above, it is not common explained by the jurists.

In this case the writer tried to find the answers of ordinary people's questions; why the illegitimate child that does not bear the burden of his parents' sin, still labeled as a child who does not have a guardian for a lifetime? Not have a lineage relationship with his biological father? did not get a living and inheritance? Is not this as a form of discrimination law?

Does not this show that the illegitimate child beared the burden of suffering caused by sin done by both his parents? is not in Islam there is the verse that says that there is no original sin, no transfer of sin? And so a couple of silly questions that were quite difficult to be answered and clarified. In order to answer some "weird" questions, the author explained above explanation.

Some of these consequences for the people who clean and mukhlish , he would understand that it is a punishment. But for people whose hearts are impure, alMujrimun and sinners, certainly will not be able to understand the concept of God's judgment. They would likely say, if they can not give a living, can not be the guardian and should not give the inheritance to illegitimate child, it will be better to be not bothered by taking care and being responsible for this child . The sinner certainly will not be familiar with the concept of " istidrâj " as Allah says:

( ١٨٢ : ٧ / فاﺮﻋﻷا ) نﻮﻤﻠﻌﯾ ﻻ ﺚﯿﺣ ﻦﻣ ﻢﮭﺟرﺪﺘﺴﻨﺳ ﺎﻨﺗﺎﯾﺂﺑ اﻮﺑﺬﻛ ﻦﯾﺬﻟاو

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And those who deny Our verses, then we shall gradually seize them with punishment in ways they perceive not. (Surah: al-A'raf / 7: 182)

This Istijrâj concept can be strong base in penalties case for parents who commit adultery; he must abandon all his rights that should be attached to him. People who do a lot of sins, not necessarily rebuked by Allah in this world, but on the contrary, he even stretched out, or Javanese people call it

"dilulu". The author was aware that at the time of writing these last few paragraphs, what the author pointed out is different from the concept of

Islamic jurisprudence. It has even entered the realm of the other Islamic sciences, but the author believes that such a description is still relevant to the theme of lineage and status of children in Islamic law.

Another problem that often occurs in people are married by accident, as the author described above. In Article 53 paragraph 1 to paragraph 3

Compilation of Islamic Law (KHI) is mentioned as follows: (1) A pregnant woman out of wedlock, can be married to men who impregnate her. (2)

Marriage with a pregnant woman referred to in paragraph (1) may be performed without waiting for the birth of her child. (3) The holding of marriage at the pregnancy time, it is unnecessary to do re-marriage after the child was born.

By looking at the formulation of Article 53 paragraph (1) may be interpreted that a pregnant woman can be married to a man who impregnate her and may not be married to a man who impregnate her. This is the consequence of using the word "may". The word is also used in the formulation of Article 2, paragraph (2) of Law No. 31 of 1999 on the eradication of corruption. There is mentioned that in the case of corruption as referred to in paragraph (1) shall in particular condition, the death penalty can be imposed. Because this chapter also uses the word "may", then although the corruption done in certain circumstances as provided for by article 2, paragraph (2) is carried out, the death penalty can also be imposed. So that, till this day no one of corruptors in Indonesia who had been sentenced to death. This is a consequence of using the word "may".

The question is why did drafting team of Islamic law compilation use the word "may" in the formulation of Article 53 paragraph (1)? Of course, this is meant as an anticipatory step. For pregnancy out of wedlock case, the pregnancy could happen due to rape. In this case, of course, women victims of rape will never mated with a rapist. So the formulation of this article may sound a pregnant woman can not be married to a man who impregnate her.

Then the relevancy of paragraph (2) which states that marriage with a pregnant woman referred to in paragraph (1) may be performed without

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 waiting for the birth of her child. If the pregnancy -as referred to this article- has been linked with the problem of waiting period for a pregnant woman who is mentioned in the Koran, Surah al-Talaq/65 paragraph 4, which reads

"ﻦﮭﻠﻤﺣ ﻦﻌﻀﯾ نأ ﻦﮭﻠﺟأ لﺎﻤﺣﻷا تﻻوأو" (and for those who are pregnant, their iddah is until they birth), it is not appropriate. Because iddah obligation is a religion mercy to maintain the purity of the lineage. Since the purpose of waiting period is so explicit, then in the pregnancy out of marriage case is not appropriate to continue to use this verse as an argument of prohobition the pregnant woman due to adultery be married in a state of pregnancy. In other words, the pregnant woman who is forbidden to marry until her son's birth as message of paragraph above is if the pregnancy due to a legal marriage, but if it were not, it means it does not respect the Koran. Because the Qur'an never condone a woman to get pregnant before she got married.

There is no single verse that allows pregnant before marriage.

This is necessary for author to emphasize, because it is likely in most places, there is a scholar or religious leader of Islam that prohibits pregnant women to marry men who impregnate or with another man willing to marry her, based on the argument of paragraph 4 of the surah al-Talaq above. Even the funny and strange things can happen that to make the child was conceived by a pregnant woman without marriage was legal and had lineage relationship with his biological father, then shortly after she birthes, she do re-married. This also is a baseless habit. Therefore it is necessary to socialize simultaneously in the community about the contents of Article 53 of Islamic law compilation.

F. Adultery Causes rise in Indonesia

In a book written by Moeammar Emka titled "Jakarta Under Cover", it is presented at length the various of adultery businesses in Indonesia in form of stalls, plus-plus salons, massage parlors or another legal prostitution such as the Dolly at Surabaya area or Kramat Tunggak at North Jakarta that been converted now to the Islamic Center in the Governor Fauzi Wibowo's era.

In this relevancy, the author found Adultery in Indonesia especially in

Jakarta and surrounding areas, after the close of the biggest arenas in Kramat

Tunggak prostitution, Adultery is not diminishing, but hookers still practice in various regions even more rampant. This example can be observed in various corners of the city. For example, in the Blok M in South Jakarta, along the highway Parung Bogor, Tegal Rotan Bintaro area South

Tangerang and in a variety of shop or home office under the guise of a salon or massage parlor, sauna or Traditional massage and others.

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Adultery, overspel or mistress as mentioned in Article 284 of the Criminal

Code is a term of criminal acts that is very dangerous committed by any person who has the opportunity, in the form of the time and funds opportunity. In a magazine published some time ago mentioned that almost every new year, on every road leading to the lodge as Kali Urang in

Yogyakarta or Puncak Bogor in West Java region, all pharmacies or minimarkets are reported that their condom stock is sold out. The irony is that the buyers are generally young couples are expected to have not been tied in a wedding.

In addition, the culture of the majority of Indonesian people feel safe when her daughter dated with a boy and the boy has been allowed to take her to go to anywhere or even been allowed to sleep together because it has been ready to perform marriages, it obviously caused the tens or even hundreds of pregnancy cases out of wedlock, Married By Accident which is a major problem associated with the validity lineage of the child to his father as what the writer suggested above.

In connection with the causes of adultery occur prevalent in Indonesia; the author argues that this can be seen from different factors, both internal and external factors. The meaning of the internal factors are related to one's faith and religious whereas external factors include two things: the first related to information and technology that is very fast and very opened and easily accessed by anyone in the current internet era. The second related to the laws of the Republic of Indonesia. a.

Internal factors related to one's faith and economics

It should be emphasized that if a person truly believe and have the enthusiasm and good understanding in the field of religion then it is impossible that he will commit immorality, including adultery. For in a hadith mentioned that a person who committed adultery, will likely not commit adultery if he really believe; he is also impossible to steal if he believed in earnest; he also will not corrupt if he is in the group of a strong faith people. Therefore, if there is someone who seems to be pious, but he still did immoralities like adultery, stealing or corruption. So obviously he could not be called a believer. He could even be called as a fasiq , because he still did badness behind his pious appearance. Na'udzu billah wal 'iyadzu billah. n the other hand, if the news related to this sordid business are traced and followed, then the adultery usually commited by the hookers or the commercial sex workers (CSWs) and philanderers. The commercial sex workers (CSWs) are the sellers themselves on one side and philanderers are

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 a buyer on the other side as two different sides of the coin. Sellers themselves as the party is in need of money, while the buyer of self-esteem as the party that may have excessive money. The writer mentioned the word

"may" because the philanderer who bought self-esteem surely as those who have surplus wealth, unless they are also needy people. Even, the way to get money in a way that was not done properly, such as stealing, robbing or corruption. Therefore, adultery is not only because of economic factors alone, especially when viewed from the side of the buyer. Because the philanderer is not always done by people who are already rich. Needy people could be tempted by this immorality and abominations.

But it still needs to be presented here that if the writer observed from various sources, both in the news sources or result of several studies, the prostitute who served as therapist or massage traditional maid in certain places, the economic factor is the main cause of their beginning into this black world.

The commercial sex worker usually is a wife who is not treated well by her husband. She was a wife who protests against her husband that sudden get married again without her knowing, so she rebelled and protested angrily asked for a divorce and then she want to show her"greatness", that she was actually still interesting, when she appeared cool and sexy, many men glanced over and looked at her. It may be that there are some sex workers who want to show that they were also able to make a living. In addition, some information sources also presented data that in general the prostitutes were forced to jump into this black world because it was forced to support and pay her children due to been divorced by her husband. So if there is a widow who prostitute after her husband's death, it is possible due to economic factors, and certainly because of her faith and religious factors.

Similarly, if hookers are teenagers who are not married or even they were still in high school or junior high school, then surely this is because of social factor, the internet era and instant lifestyle. They want to have money without working hard, but the writer sure that in the case of teenagers who go into the sex business is still linked to the faith and supervision of parents, families and communities. b. External factors such as Republic of Indonesia's Legislation

If the causes of adultery occur rampant in Indonesia are related to the faith and economics, then the external factor in writer's view is related to the laws in this country. In this case, the writer could bring there are close links between substance formulation of article about adultery, overspel or mistress on article 284 Book of Criminal Act, Article 42 of Law No. 1 of 1974 about

Marriage and supreme court's decision on February 17, 2012 related to the

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 judicial petition of marriage law by Machicha Mochtar, ex-wife of (late)

Moerdiono, a former high-ranking officials of the New Order era. The third rules and regulations will be presented sequentially as below:

1) Article 284 of the Criminal Code

Adultery offenses contained in Article 284 of the Criminal Code is much different than what was discussed by hadiths of the Prophet Muhammad and the opinions of the scholars who sort and classify adultery into two forms namely ghairu muhsan and muhsan adultery. Muhsan adultery is adultery committed by a person who is or ever has legitimate spouse, whether he has status as a husband, wife, widow or widower. While ghairu muhsan adultery is the opposite of muhsan adultery, ie if the offender is a virgin who has not or is not being tied to a valid marriage. The article 284 of the Criminal Code mentioned:

(1) Punishable by imprisonment of nine months: if a man who has married commits adultery, whereas known that section 27 BW applies to him, b. a married woman who did adultery; 2.a. a man who took part did the deed, although knew that the offender had been married, b. unmarried woman who participated committing such crimes, though knew that the offender had been married and section 27 Bw applied to her. (2) No prosecution but based on complaints of the husband / wife who are disgraced, and when chapter 27 BW applied for them, within a period of three months followed by a demand for divorce or separation-table and bed for that reason as well.

(3) For the complaint, Article 72, 73, and 75 are not applied. (4) The complaint may be withdrawn during the hearing in the trial has not started yet. (5) If the article 27 of the BW is applied to the spouses, the complaints are ignored during the marriage has not been decided because of divorce or before the verdict stating tables and beds separation to be fixed.

From the formulation of Article 284 of the Criminal Code can be known that the category of muhsan and ghairu muhsan adultery is unknown in the

Indonesian Penal Code. In the Criminal Code, as stated in the article, adultery is the adultery that its culprit was bound by the contract of marriage, which is the case of sexual affair that occurred in the household and included in the complaint malfeasance, so the Criminal Code does not recognize the term ghairu muhsan adultery, in which also implies that as long as the perpetrators whose husband or wife that still feel safe with the offense of adultery committed by the partner, the offender can not be prosecuted because no complaint by the harmed party. So if adultery is consensual and not being tied to marriage, then by the Penal Code is not regarded as a crime that can be punished.

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In this case, Abduh Malik, a professor of FSH UIN Jakarta suggests that if a man who had a wife commits the adultery while the wife does not mind on her husband's cheating, then the code of law will not apply to the husband.

Similarly, if a woman whose husband commits the adultery while her husband does not mind, then the wife is committing adultery will not be punished by the Penal Code. J adi if the husband does not mind his wife having an affair (adultery) with another man or the wife does not mind her husband's affair (adultery) with another woman with lust motif, or material rewards and so the act of adultery is not the bad things (necessary) prohibited in the Criminal Code. If the husband or the wife embarrassed to complain his wife or her husband who commit adultery to law enforcement officials, of course, the act of adultery will not be processed. Thus fornication committed a husband or a wife would be able to go on. So, the

Article 284 of the Criminal Code cannot prevent the act of adultery in society, and even provide opportunities to be rampant in society.

43

That is a glance comparison of views between Jurisprudence jinayah and the

Criminal Code. It is likely any cases MBA (married by accident) are very common in the community as a result of the formulation of the Criminal

Code that an extramarital affair carried on consensual by couples that are not bound on marriage is not fornication. As prostitutions in Indonesia, both legal and illegal may be influenced by an understanding that comes from

Article 284 of the Criminal Code.

2) Article 42 of Law No. 1 of 1974 on Marriage and article 99

Compilation of Islamic Law

The author should emphasize at this point that this is the author's understanding related to the formulation of of article marriage law and

Compilation of Islamic Law. Therefore, if there are some parties objects to the author's opinion, please put forward views and arguments politely and considerately. The author must honestly state that this formulation of article

42 UUP was ever writer suggested officially in the plenary session in agenda to hear testimony of expert witnesses who accidentally the author that acts as an expert witness in a judicial review UUP on Wednesday, May 4, 2011 at the Constitutional Court.

The formulation of Article 42 UUP reads "the legitimate child is a child born in or as a result of a legal marriage." Article was adopted in full view with the second additional paragraph of the Compilation of Islamic Law as follows: "the legitimate child is: a. a child born in or as a result of a legal

43

Muhammad Abduh Malik, Perilaku Zina, Pandangan Hukum Islam dan KUHP, (Jakarta : Bulan Bintang,

2003), 1 st

edi on, p. 191-192

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 marriage b. result of legitimate conjugal act outside the womb and be born by the wife. "

According to the author's understanding, the formulation of article 42 UUP and article 99 Compilation of Islamic Law in paragraph (2), it is clearly contrary to the content of a Hadith Sahih narrated by al-Bukhari and Muslim

" al-waladu lilfirasy " which confirms that the legitimate child is the child born as a result of legitimate marriage is not just born "in" legal marriage.

Because if it used the word "in", means that the important point is the child was born at the time his parents were tied to a marriage.Even if at the time of uterine muscle contraction at the first or second opening before the baby birth, and his parents' marriage is just held, then within the next few minutes the innocent baby is born, then on the basis of the formulation of article 99

Compilation of Islamic Law it can be stated as a legitimate child, though clearly that poor baby's conception embryos have occurred before a legitimate marriage.

Article 99 Compilation of Islamic Law is quoted directly of article 42 of

Law No. 1 of 1974 about marriage stating that the legitimate child is the child born in or as a result of a legal marriage. At the time of the author acted as an expert witness in Constitutional Court related judicial marriage law, the author proposed several statements as described as below. in the author's view, even though Article 42 of Law No. 1 of 1974, does not conflict with the 1945 Constitution, but it would be excellent if the words

"in" clause contained in the formulation is to be reviewed or removed if necessary. Because the presence of the word "in" implicates and effects in the legalization of adultery. This can happen due to the formulation of this article; means the state automatically recognize or permit and legalize the process of sexual intercourse before marriage. Communities mitigate without feeling guilty will argue that married by accident, pregnant out of wedlock are reasonable and are common in modern society.

The author states that law No. 1 of 1974 On Marriage and Compilation of

Islamic law potentially restore for determining lineage-style of Jahiliyah era, because this law does not recognize children born out of wedlock on the one hand, only because his parents' marriage was not recorded, and children were processed through adultery is regarded as a legitimate child in the other hand, with conditions at the time of the child's birth, father and mother were married. It was as a formula of clause that needs serious attention.

Al-Qadi 'Iyadh as quoted by Imam al-Nawawi said:

ﮫﻟ ﮫﻧﺄﺑ مﻷا ﺖﻓﺮﺘﻋا نﺈﻓ ﺎﻧﺰﻠﻟ ءﺎﻣﻹا نوﺮﺟﺄﺘﺴﯾ اﻮﻧﺎﻛو ﻰﻧﺰﻟﺎﺑ ﺐﺴﻨﻟا قﺎﺤﻟإ ﺔﯿﻠھﺎﺠﻟا ةدﺎﻋ ﺖﻧﺎﻛ

ﻲﻋﺮﺸﻟا شاﺮﻔﻟﺎﺑ ﺪﻟﻮﻟا قﺎﺤﻟﺈﺑو ﻚﻟذ لﺎﻄﺑﺈﺑ مﻼﺳﻻا ءﺎﺠﻓ ﮫﺑ هﻮﻘﺤﻟأ

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It is the habit of jahiliyah society in setting children lineage through adultery, they hire female slaves for adultery, if a slave claimed that the child was born from the sperm of a man who impregnated her, so they decided that child's lineage to him. Islamic teachings come to undo this bad tradition. Then set the foundation of lineage by bed ownership in syar'i / legal marriage.

44

3) Children's Constitutional Court on Judicial Foreign Marriage in

Marriage Law

The full decision of the Court is as follows: First , grant some petitions of the petitioner; Second , Article 43 paragraph (1) of Law No. 1 of 1974 on

Marriage (State Gazette of the Republic of Indonesia Year 1974 No. 1,

Supplement to State Gazette of the Republic of Indonesia No. 3019) which states, "Children born out of wedlock just have a civil relationship with her mother and her mother's family", contrary to the Constitution of the

Republic of Indonesia Year 1945 meant eliminating all civil relationship with a man who can be proved by science and technological and / or other evidence under the law turns out to have a blood relationship as father ;

Third , Article 43 paragraph (1) of Law No. 1 of 1974 on Marriage (State

Gazette of the Republic of Indonesia Year 1974 No. 1, Supplement to State

Gazette of the Republic of Indonesia Number 3019), which states, " Children born outside marriage has only a civil relationship with her mother and her mother's family " has no binding legal force throughout meant eliminating civil relationship with a man who can be proven by science and technology and / or another evidence under law turns out to have a blood relationship as his father, so that the verse should be read, "Children born out of wedlock have a civil relationship with her mother and her mother's family as well as with men as her father can be proved by science and technology and / or other evidence equipment by law to have a blood relationship, including civil relationship with his father's family " ; Fourth , Rejecting another part and rest of petitions; Fifth , Ordered to load this decision in the Official

Gazette of the Republic of Indonesia;

Against the decision of the Court is the Chairman of the Indonesian scholar council, KH. Dr. Ma'ruf Amin said that the decision has become controversial because open the opportunity to be understood that there is civil relationship between the children born of adultery with a man that resulted in birth. Civil relation referred to Islam is associated with lineage, inheritance, maintenance and guardianship, so that court decision is

44

Imam al-Nawawi, Syarh Sahîh Muslim, (Riyâd, Bait al-Afkar al-Dauliyyah, without year), p. 913

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University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 understood to be the door to legalize adultery.

45

Therefore, Indonesian scholar council responded this ruling by setting the illegitimate child Status and treat decision. It's good to see the Indonesian scholar council's full decision in response to a decision of the court, it can be seen on the author's book, lineage and status in Islamic law at pages 236-259.

In line with what's suggested by the Indonesian scholar council's chairman, the writer also believes that the Court's decision can indeed be understood as expressed by the chairman of Indonesian scholar council. But the author as a professor of islamic criminal law in UIN Jakarta also understand that what was decided by the Court is not without good reason. The Court decided the child out of wedlock have a civil relationship not only to the mother, but also to the biological father as long as can be proved by science and technology and or other evidence, as a spectacular decision that aims to give legal protection to women who normally be victimization by certain men and children who may be abandoned by the tyranny of a man who is not responsible of his actions.

Therefore according to the author, considering the Court's decision is final and binding, the meaning of final is that this decision immediately has the force of law since spoken and no effort that can be taken. The character of final in this decision also includes binding legal effect, therefore, it needs to be made law or at least a government regulation or Rule of the Supreme

Court as an explanation of this decision with consider the various formulations of Indonesian scholar council's decision which include some of the following key: illegitimate children do not have lineage relationship, guardian of marriage, inheritance, and living from a man who caused his birth. Child of adultery have only lineage relationships, inheritance, and living with her mother and her mother's family.

Child of adultery did not bear the sins of adultery committed by people who lead his birth. The punishment of fornicator imposed by the authorities, for the sake of maintaining the legitimate offspring (hifzh Al-nasl ). Government authorities sentenced ta'zir to adulterer that resulted in the birth of children by obligating them to: provide for the child's life; provide property after he died through wasiat wajibah . The punishment is as mentioned by no 5 aimed to protect the child, not for legalizing lineage relationship between the child and the men that resulted in his birth.

Conclusion

Adultery is a kind of disease that has existed since the human existence, even it is possible that the adultery will never disappear from this earth when

45

M. Nurul Irfan, Nasab dan Status Anak dalam Hukum Islam, (Jakarta: Amzah, 2012) 1 st

edition, p. vi

141


University of Bakht Alruda Scientific Journal Issue No. 9 Dec 2013 there is human life. The great impact caused by this crime. Namely the issue of marriage, the waiting period problem, the problem of determining a mahram and in terms of the utilization of the earnings of this heinous act of adultery. Even the psychological impact of the child that was born from this crime may have its own share in the development of human resources in the future. An adulteress is lawful to be married by her partner in pregnancy condition, but if she is married by another man who is not her adultery partner, he should refrain from sexual intercourse. It is based on the hadith that ban for doing so. In the waiting period case, an adulteress does not have to do iddah , because the word of God on the waiting period obligation is only for a pregnant woman due to legal marriage. Adultery also does not affect on the legal forhibition issue to marry her partner ‘s mother or child.

Then all sorts of earnings gotten by fornication is not lawful for consumption and used for religious facilities. Even if the proceeds of adultery will still be consumed by the family, a new generation of children and grandchildren could feel the negative effects of this heinous act, so they will be a weak generation of people in many ways, both weak faith, weak economy, weak intellectuals and various other flaws that can be caused by consuming the proceeds of adultery. Factors causing rampant adultery in

Indonesia include internal factors, such as faith and belief conditions and external factors form of legislation which includes Article 284 of the

Criminal Code, section 42 UUP or section 99 compilation of Islamic law and may also Constitutional Court.

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