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Eduvest � Journal
of Universal Studies Volume 3 Number 1, January, 2023 p- ISSN
2775-3735- e-ISSN 2775-3727 |
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EXTRAMARITAL DAUGHTER'S ABUSE TO
BIOLOGICAL FATHER DURING IJAB-QABUL IN ORDER TO COVER UP FAMILY DISGRACE |
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Cut Hudzaifah
Najwa Azalea Dzahin, Muhammad Yogi Galih Permana STDI
Imam Syafii Jember,
Indonesia |
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ABSTRACT |
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This study
examines the problem of sexually abstaining girls born out of wedlock to
their biological fathers in the ijab-qabul contract
in order to protect family disgrace. Clerics agree that a daughter born out
of wedlock, then she is given to her mother, not her father biologically.
However, what about in the pronunciation of ijab-qabul?
Do girls still have to be given to their mothers? Then, if that happens
wouldn't it be a container for dismantling family disgrace? So, this journal
was written to find a definitive answer to the unrest experienced by children
who were "victims" of their parents' dark past. This research is a
library research study with a quantitative method approach. From the
aforesaid description it can be concluded that the daughter is not to her
biological mother has a very large mashlahah here.
The syar'i proposition that forbids to speak to
other than his father is a general prohibition under absolute conditions |
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KEYWORDS |
Marriage; Nasab; Adultery; Islamic family. |
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This
work is licensed under a Creative Commons Attribution-ShareAlike
4.0 International |
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INTRODUCTION
Thank
God, all praise be to Allah. I testify that no god has
the right to be worshipped properly other than Allah who created the heavens
and the earth and handed down the Quran to His servant as a guide and guide for
life (Rupita, 2021). Shalawat
and greetings to the Prophet Muhammad صلى
الله عليه
وسلم, the Messenger of Allah who brought the people out of the
darkness to the light of faith (Muhammadun, 2017). He was the
Messenger of Allah صلى
الله عليه
وسلم who guided his ummah towards the straight path.
Nasab
is an important issue and is highly regarded by Islam. This is evidenced
by the nash postulate and the inclusion of this
problem in adh-dharuriyyat al-khams: 5 main things that must be taken care of (Septuri, 2018).
Nasab is a favor from Allah, as He جل
جلاله said:
﴿وَٱللَّهُ
جَعَلَ لَكُم
مِّنْ
أَنفُسِكُمْ
أَزْوَٰجًا
وَجَعَلَ
لَكُم مِّنْ
أَزْوَٰجِكُم
بَنِينَ
وَحَفَدَةً
وَرَزَقَكُم مِّنَ
ٱلطَّيِّبَٰتِ﴾
It
means: "God made for you wives of your own kind and made for you of your
wives, children and grandchildren, and gave you sustenance from the
good. So why do they have faith in the good and deny God's favor?
Nasab
is a tsabit thing, that is, it is established with certainty. Nasab is
not inherited nor traded. Nasab cannot be inherited from any direction except
by legal marriage. The Messenger of Allah صلى
الله عليه
وسلم said:
الوَلَاءُ
لُحمَةٌ
كَلُحمَةِ
النَسَب، لَا
يُبَاعُ
وَلَا يُوهَب.
It means: "Al-Wala (the relationship between the master who liberated
the slave and his slave) was equated with the nasab relationship, not traded
and not given away." (HR. Ibn Hibban)
Imam
Al-Dahlawi said, "Know that nasab is one of the things that man builds to
be preserved, then you will not see a person in any of the areas unless he
likes to be attributed to his father and grandfather, and he hates being
demeaned by his nasab, except because of an accident of a lowly hereditary or
the purpose of rejecting mudharat or bringing benefits, and so on (Azzam et al., 2015). Attention
to the issue of nasab has a great impact on many issues of jurisprudence,
including: the problem of inheritance, marriage guardians, guardians to bathe
the corpse, guardians, livelihoods, wills, and mahramat (Arikunto & Praktek, 2001).
There
is no doubt that the mixing of nasabs is one of the issues of concern to
jurists. So it should be the Muslims in general and the claimants of knowledge
that will be asked by the public about the laws of jurisprudence specifically
to pay attention to and concern for this nasab problem (Manan
& SH, 2017).
People
now live in an age where people no longer care about their religion�except for
a few people whom God has mercy. They do not know God's law and the limits of
sharia. Among the many ungodliness that occur, the problem of extramarital
sex/adultery is a problem that needs further study. Because the consequences of
the act do not end with the end of the act of adultery itself (Dewi, 2020).
First,
there is the possibility of spreading infectious diseases such as HIV and Aids.
Second, it is a great disgrace that must be borne for life, especially if
people who have committed adultery, especially women, want to marry and
prospective partners demand a wife with a virgin state (Abror & MH, 2016). Third, a
bigger problem will arise if from the act a child is born, because a child born
from an extramarital relationship must not be given to his biological father
and is not entitled to inheritance or a living (Az-Zuhaili, 2011). A
much bigger problem will be present at a time when girls born from extramarital
relationships will enter into marriage. First, his biological father must not
be his guardian married, then he must be married by the guardian of the judge.
Secondly, he should not be confined to his biological father (Al-Barry,
1997).
Then
how will the mention of his name be pronounced? If he were to be given to his
mother, wouldn't this be tantamount to dismantling the disgrace that should be
covered tightly? In this case, is it okay for a daughter born of an adulterous
relationship to be given to her biological father in order to cover up the
disgrace her parents once committed? (Saputra, 2019)
Therefore,
this matter is considered so important to discuss. In an effort to convey
knowledge that can be the basis for charity and reassurance for the shock and
sadness of the hearts of girls born out of wedlock. Because of course they
never want to be labelled as "illegitimate children" and have to bear
so many consequences for their parents' mistakes in the past (Asman,
2020).
RESEARCH METHOD
This research is a type of library research carried out by examining
various sources of literature or reading materials such as books, books,
journals, theses, theses, magazines, and various other sources relevant to the
discussion of research. The approach used is a quantitative approach by
focusing on causation and the solution of the problems that occur.
RESULT AND DISCUSSION
1.
Definition of Zina
Zina according to fiqh is copulation
between a man and a woman in the absence of a valid marital bond, that is, by
inserting the male sex into the female genitalia, at least to the limit of
hasyafah (chief testicles) (Samsidar
et al., 2019).
Definition of adultery from the 4 of Mazhab
a.
Zina According to Al-Hanafiyah
قَضَاءُ
المُكَلَّف
شَهوَتَهُ
فِي قُبُلِ المُكَلَّفِ
امرَأةِ
خَاليَةٍ عَن
المِلكَين
وشَبهتهما لاَ
شُبهَةَ
الأشبَاه
وَتمكين
المرأة من ذلك.
It
means: �The commissioner fulfills his desire for a woman who is free of the two
angels, and she resembles them, not the suspicion of similarities, and empowers
the woman to do so.�
b.
Zina According to Al-Malikiyyah
كُلُّ
وَطءٍ وَقَعَ
عَلىَ غَيرِ
نِكَاحٍ صَحِيحٍ،
وَلَا
شُبهَةَ
نِكَاحِ،
وَلَا مِلك يَمِينٍ.
���� It means: ��Every intercourse that took place was not a
valid marriage, there was no suspicion of marriage, and there was no possession
of an oath.�
c.
Zina According to Asy-Shafi'iyyah
هُوَ
عِبَارَةٌ
عَن وَطَءِ
رَجُلِ مِن
أَهلِ دَارِ
الإسلاَمِ
امرأةً
مُحَرَّمَةً
عُحَرَّمَةً
عَلَيهِ مِن
غَيرِ عَقدٍ،
وَلاَ شُبهَةَ
عَقدٍ،
وَغَيرِ
مِلكٍ، وَلَا
شُبهَةَ
مِلكٍ.
���� It means: �It is about the intercourse of a
man from the House of Islam with a woman forbidden to him without a contract,
without a contract, without possession, and without a suspicion of possession.�
d.
Zina According to Al-Hanabilah
هُوَ
فِعلُ
الفَاحِشَة
فِي قُبُلٍ
أَو دُبُرٍ.
�������� It
means: �It is an act of obscenity, before or after.�
From the definition given by Fuqoha
and 4 Muslim imams, it can be understood that adultery can be briefly defined
as sexual intercourse performed in the absence of a marital relationship or a
cause that justifies the relationship, such as slave ownership.
Unfortunately, the definition of
adultery recognized in Indonesia is contained in article 248 of the Criminal
Code, that a man or woman can be charged with the sanction of adultery if he
meets three conditions, namely: 1) having intercourse with a woman or man
instead of her husband or wife; 2) for himself applies art. 27 BW; 3) he is in
marriage (Tahir & Handayani,
2018).
From these conditions, it can be
understood that adultery according to Indonesian law is if the copulation
relationship is carried out by a married man or woman and a man or woman who
does it with someone else's husband/wife.
Thus, Muslims should return this
problem to Islamic law, which has made it clear that adultery is any form of
sexual intercourse that is not based on legal marriage. It doesn't matter
whether it is married or not. Also, it doesn't matter whether it is done with
the married or not (Ariswoyo
& Nasution, 2005).
Adulterers are grouped into 2
groups: 1) Zina muhsan, is adultery committed by a man or woman who has
been and is still in marital status. 2) Zina ghairu muhsan, is adultery
committed by an unmarried man or woman.
2.
�Definition of Children Outside Marriage
According to Indonesian Civil Law
There are several types of children
known, including: biological children, adopted children, stepchildren,
breastfeeding, children, and children out of wedlock or what is known as
adulterous children. An out-of-wedlock child is a child born to a woman while
the woman is not in legal marital status.
Law
No.1 of 1974 regulates the position of a child in chapter IX articles 42-44,
which reads:
Article
42 "A legitimate child is a child born in or as a result of a valid
marriage".
Article 43 "(1) A child born
out of wedlock has only a civil relationship with his mother and his mother's family.
(2) The position of the child in subsection (1) above shall henceforth be
regulated in a government regulation."
Article 44 "(1) A husband may
deny the validity of a child born to his wife if he can prove that his wife has
committed adultery and that the child is the result of the adultery. (2) The
court renders a decision on whether or not the child is valid at the request of
the interested party."
3.
Nasab's Position of Children Out of
Wedlock
a.
�Perspectives of the Compilation of Islamic Law
According to the compilation of
Islamic law, a child born through an extramarital relationship has no law and
attachment to his father, nor his father's family. There was no nasab bond
between the two of them.
Looking at article 43 of Law No. 1
of 1974 and article 100 of the KHI, both of them state that extramarital
children only have a civil relationship with their mother's family. However,
there is an exception set out in article 53 of the Compilation of Islamic Law,
namely that in point (1) a woman pregnant out of wedlock, can be mated with a
man who impregnates her. (2) The marriage with a pregnant woman referred to in
subsection (1) may take place without first waiting for the birth of her child.
So it can be understood, that a child who is fertilized out of wedlock is then
born into a valid marriage i.e. the mother and the man who impregnated him to
marry, hence the status becomes a legal child because he was born in a legal
marriage, thus having a nasab relationship with the man who married his mother.
If the woman has married a man who impregnated her before her child was born,
then under article 99 of the Compilation of Islamic Law, the child is a
legitimate child. This is because a legitimate child is:
a) Children
born in or as a result of a legal marriage
b) The
result of the legal fertilization of the husband and wife outside the womb and
born by the wife.
Based on article 99 paragraph (a) of
this, it is clear that the child of adultery or the out-of-wedlock child after
his mother has married the impregnator as stipulated in article 53 paragraph 1
of the KHI is a legal child. The reason is that the child was born in a legal
marriage. This child is not a child born outside of marriage.
b.
Perspectives of 4 Madzhab
Regarding
the position of the out-of-wedlock child, the madzhab scholars dissented as
follows:
a)
Madzhab Shafi'i
Madzhab
Shafi'i argues that an extramarital child is a child born less than six months
after the existence of a legal conjugal relationship. Followers of the Shafi'i
madzhab argue that the nasab of a child born out of wedlock is cut off from his
father. In this case the father is considered ajnabi (non mahram foreigner)
which is allowed to be married. Thus, all rights that a child can get from his
parents are also cut off, including inheritance rights, living rights, and
guardianship rights.
This
opinion is derived from an understanding of the hadith of the Prophet صلى
الله عليه
وسلم as follows:
الوَلَدُ
لِلفِرَاشِ
وَلِلعَاهِرِ
الحَجَرُ.
It
means: "The child born is the right of the owner of the firasy, and for
the adulterer is a stumbling block (gets nothing). (HR. Muslim).
b)
�Madzhab Hanafi
In
contrast to the opinion in the Shafi'i madzhab, the Hanafi madzhab assumes that
the nasab of an extramarital child remains continuous to his biological father.
A person is called a child because he is born from his father's semen,
therefore the Hanafi madzhab argues that nasab is not decided by marital
status, but rather by a clear blood relationship, in the presence of
copulation. Thus, a daughter is a mahram for her biological father and
illegitimate to marry.
Imam
Abu Hanifah reasoned by understanding the meaning of the pronunciation of
"marriage" according to the essence of being a marriage. Every child
born will be linked to the male who has the seedling (seminal). This provision
is seen by his attitude of interpreting marriage with a marriage. So, the
consequence is that as long as there is sexual intercourse that results in the
birth of a baby, then the baby is the child of a man who results in pregnancy.
c)
Madzhab Maliki
According
to Maliki's madzhab that the son of adultery is not given to his father, but is
given to his mother. In this case, Maliki's madzhab also allows a man to marry
his daughter, his sister and nieces and nephews from adultery, because the
women have no shari'a relationship with him.
d)
Madzhab Imam Ahmad ibn Hanbal
Madzhab
Hambali is no different from other madhabs which say that extramarital children
only have nasab to a mother who gave birth to him and do not have a nasab to
the father who impregnated his mother. But just like the Hanafi madzhab, the
Hambali madzhab also forbade him and his father to marry and marry the people
who became their mahram. It is not even justified for them to see and touch
their adulterous child with lust. But at the same time they do not inherit each
other.
Imam
Hanafi and Imam Hambali stated that girls resulting from adultery are
illegitimately married as are legal daughters. For the daughter is her own
flesh and blood. In terms of language and traditions of the people or "urf
he is his own child. Not being recognized as a syar'i in terms of
inheritance law, does not mean that he is not his biological son in essence,
but what is meant is to deny the consequences of his syar'i only, for
example the law of inheritance and giving a living. They suggested that
adultery could cause mushaharah, so that the man was illegitimate to
marry the daughter and mother of the woman he had adulterated. Meanwhile, the
woman herself was also married by the father and son of the man who killed her.
Imam Hanafi These two madhabs do not distinguish between the occurrence of
adultery before and after marriage. If a man commits adultery with his in-laws,
or a child commits adultery with his father's wife (his stepmother) then his
wife becomes illegitimate to her husband forever.
4.
Nasab Children Out of Wedlock During
Ijab-Qabul
1.
The Obligation to Cover Disgrace in
Islam
Islam
teaches its people to always cover up the disgrace of themselves and others. as
this is clearly stated in the hadith of the Prophet صلى
الله عليه
وسلم narrated by Ibn Umar radhiyallahu anhuma, Messenger of
Allah صلى
الله عليه
وسلم said:
يأَيُّهَا
النَّاسُ
قَدْ آنَ
لَكُمْ أَنْ تَنْتَهُوا
عَنْ حُدُودِ
اللَّهِ مَنْ
أَصَابَ مِنْ
هَذِهِ
الْقَاذُورَاتِ
شَيْئًا فَلْيَسْتَتِرْ
بِسِتْرِ
اللَّهِ
فَإِنَّهُ
مَنْ يُبْدِى
لَنَا
صَفْحَتَهُ
نُقِمْ عَلَيْهِ
كِتَابَ
اللَّهِ.
It
means: "O people, I have reminded you to be careful of the limits of God.
Whoever falls into a bad deed, should he cover himself with the curtain of God.
For whoever tells us his deeds will surely establish the statute of the law of
God upon them." (HR. Ath-Thahawi)
Similarly, in the editorial of the following hadith, the Messenger
of Allah صلى الله
عليه وسلم said:
كُلُّ
أُمَّتِى
مُعَافًى
إِلاَّ
الْمُجَاهِرِينَ
، وَإِنَّ
مِنَ
الْمَجَانَةِ
أَنْ يَعْمَلَ
الرَّجُلُ
بِاللَّيْلِ عَمَلاً
، ثُمَّ
يُصْبِحَ
وَقَدْ
سَتَرَهُ اللَّهُ
، فَيَقُولَ
يَا فُلاَنُ
عَمِلْتُ الْبَارِحَةَ
كَذَا
وَكَذَا ،
وَقَدْ بَاتَ
يَسْتُرُهُ
رَبُّهُ
وَيُصْبِحُ
يَكْشِفُ
سِتْرَ
اللَّهِ
عَنْهُ
It
means: "Every one of my people is forgiven except one who is blatant in
his misgivings. That is, a person who has sinned at night and then in the
morning he says that he has committed this and that sin even though God has
covered his sin. In the evening, God has covered his disgrace, but in the
morning he opens himself the disgrace that God has covered." (HR. Bukhari,
no. 6069 and Muslim, no. 2990).
Both
editors of the hadith prove that Islam pays great attention in the obligation
to cover up disgrace. Anything that God has covered, must not be easily opened
by others. All sins and misdeeds committed, should be sealed off and do not let
anyone know about it.
On
the issue of adultery, scholars argue that both women and men who have
committed adultery are prohibited from exposing the bad disgrace of the past,
including to the future husband. It is not permissible for a woman to explain
that she is not in a virgin state. Whereas in this case, knowing it is
considered an important matter. However, the obligation to cover up the
disgrace of the past is more important.
What
else if it is exposed without any udzur and great importance? So it can
be concluded that the law is illegitimate and will have sinful consequences if
it is still done. This is God's concern for His people. It is also a form of
affection and mercy from God. Because with the exposure of disgrace and
ugliness, it will have an impact on the many opportunities for sin that may
occur, including: blasphemy, hunting, enmity, and breaking the ropes of
friendship.
2.
Reviewing Maslahah's Perspective
Let's
review in terms of the mashlahah and mafsadah that may be caused. Maslahah is a
concept that is used as the main consideration in solving Islamic legal
problems because the principle contained in maslahah is the maintenance of the
objective purpose of law (maqasid al-shari'ah) namely the maintenance of
religion, soul, reason, offspring, and property. So all that guarantees the
five principles (ushul) is a maslahah and any omission in the maintenance of
these five things is mafsadat. According to al-Ghazali, maslahah should be based
on nash syara' and not on reason alone, al-Ghazali stated maslahah is
acceptable if it has three qualities namely daruriyyah, qathiyyah and kulliyah.
Al-Ghazali rejects maslahah in relation to the benefit of humanity, research
and study of maslahah should be focused on existing nash-nash.
If
an extramarital daughter is married and at the time the ijab-qabul is given to
her mother's name, then this will create so much mafsadah and mischief. The
disgrace that has been tightly closed will be open in front of many people, not
only families, but even invited guests who in fact foreigners will know about
it. Of course this is a condition that no one really expects. Marriage should
be a bliss, a day in which people rejoice. However, the atmosphere changed because
of the daughter's blasphemy to her mother which proved that she was a child
born out of wedlock. In terms of mashlahah, there is no good thing to do by
pinning the mother's nasab behind the name of the daughter who is about to
marry, except for sticking to the sharia of God.
3.
Reviewing Indonesian Civil Law
Perspectives
Regarding
the status of your child born outside of marriage, in the opinion of the Head
of KUA Pademangan District, North Jakarta Abdul Syakur, the ijab process in the
marriage will be directly carried out by the guardian of the judge, namely the
head of the local KUA sub-district. Meanwhile, his own biological father cannot
be a guardian of nasab, even if he is related by blood. Later, the name of the
head of the local sub-district kua will be recorded in the guardian column on
the marriage certificate citation. So it can be concluded, an out-of-wedlock
daughter can still carry out marriage. The name of the husband who is not the
biological father of the child does not need to be listed, either on the birth
certificate or on the quotation of the marriage certificate.
As
for the mention of nasab when ijab-qabul refers to what is stated in the Family
Card, because that is the data that is considered valid. If the mother has
remarried while still pregnant, then the child is allowed to use the last name
of the stepfather's name. As for if the mother does not remarry, then the
child's nasab is leaned on to the mother or other alternatives are carried out
by the KUA as follows:
1. Keep mentioning the name of his biological father.
2. Not naming the biological father and not giving anyone a name.
3. Replacing nasab with the mention of "binti Adam / binti
Abdullah"
CONCLUSION
From
the aforesaid description it can be concluded that the daughter is not to her
biological mother has a very large mashlahah here. The syar'i proposition that
forbids to speak to other than his father is a general prohibition under
absolute conditions. The Messenger of Allah صلى
الله عليه
وسلم said:
مَنِ
ادَّعَى
إِلَى غَيْرِ
أَبِيْهِ
أَوِ
انْتَمَى
إِلَى غَيْرِ
مَوَالِيْهِ
فَعَلَيْهِ
لَعْنَةُ
اللهِ
وَالْمَلاَئِكَةِ
وَالنَّاسِ
أَجْمَعِيْنَ
لاَ يَقْبَلُ
اللهُ مِنْهُ
يَوْمَ الْقِيَامَةِ
صَرْفاً
وَلاَ
عَدْلاً
It
means: "Whoever confesses father to other than his father or relies on the
one who is not his guardian, then the anathema of Allah, also the Angels and
all men fall upon them, and on the day of judgment, Allah will not receive from
them, neither the fardhu nor the sunnah." (HR. Bukhari)
As
for this issue, the purpose is not to lean on nasab nor to claim to be part of
the descendants. The mention of the biological father's name behind an
extramarital daughter who is about to get married aims to cover up disgrace and
avoid the dignity of the family. Then this problem can be regarded as a special
problem that has different laws and general problems.
The
mention of nasab is not an obligation in the marriage contract and does not
fall under the legal terms of ijab-qabul. The name of the bride-to-be's father
may not be mentioned if the bride-to-be is clear, in harmony between the
intention of the one who pronounces the ijab and the one that pronounces qabul.
The rules of jurisprudence reveal:
العِبرَةُ
فِي
العُقُودِ
بِالمَقَاصِدِ
وَالمَعَانِي
لاَ
لِلأَلفَاظِ
وَالمَبَانِي
It
means: "What is considered important in the contract is the intent and
meaning not the pronunciation and form of the word."
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