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Namun nikah dengan seorang wanita tidak bisa asal-asalan. Ada syarat yang mesti dipenuhi seperti mesti adanya wali dan mahar. Begitu pula ada bentuk nikah yang terlarang dan membuat akadnya menjadi tidak sah yang sudah sepatutnya kita jauhi.
Bentuk nikah seperti apa sajakah itu? Simak dalam tulisan sederhana berikut. Nikah Syighor Bentuk nikah syighor adalah si A menikahkan anak, saudara atau yang berada di bawah perwaliannya pada si B, namun dengan syarat si B harus menikahkan pula anak, saudara atau yang di bawah perwaliannya pada si A. Bentuk nikah syighor terserah terdapat mahar ataukah tidak. Keharaman bentuk nikah seperti ini telah disepakati oleh para ulama baca: Jumhur mayoritas ulama berpendapat bahwa nikah seperti ini tidaklah sah.
Alasan jumhur adalah dalil-dalil berikut ini. Muslim no. Bukhari no. Abu Daud no. Syaikh Al Albani mengatakan bahwa hadits ini hasan Bentuk nikah syighor dinilai terlarang karena telah menetapkan syarat yang melanggar ketentuan Allah. Persyaratan apa saja yang tidak diperbolehkan dalam kitab Allah merupakan persyaratan yang batil, meskipun seratus persyratan. Ketetapan Allah lebih berhak untuk ditunaikan, dan persyaratan Allah lebih kuat untuk diikuti. Nikah Muhallil Kita telah ketahui bahwa maksimal talak adalah sampai talak ketiga.
Dua talak sebelumnya, masih bisa ada rujuk. Jika suami telah mentalak istri sampai tiga kali, maka ia tidak bisa rujuk kembali sampai si istri nikah dengan pria lain dan cerai lagi dengan cara yang tidak diakal-akali. Nikah muhallil yang dimaksud di sini adalah seseorang menikah wanita yang telah ditalak tiga, kemudian ia mentalaknya dengan tujuan supaya wanita ini menjadi halal bagi suami yang pertama. Nikah semacam ini terlarang, bahkan termasuk al kabair dosa besar.
Pria kedua yang melakukan nikah muhallil terkena laknat sebagaimana pria pertama yang menyuruh menikahi mantan istrinya. Allah akan melaknat muhallil dan muhallal lahu. Ibnu Majah no.
Al Hakim dalam Mustadroknya 2: Hakim berkata bahwa hadits ini shahih sesuai syarat Bukhari Muslim. Adz Dzahabi pun menyatakan demikian Nikah muhallil dinilai terlarang dan nikahnya tidak sah, terserah apakah dipersyaratkan di awal bahwa si wanita akan dicerai supaya halal bagi suami pertama ataukah tidak disyaratkan tetapi hanya diniatkan.
Masih ada beberapa bahasan lainnya mengenai bentuk nikah yang terlarang yang akan dibahas pada edisi selanjutnya.
Semoga Allah memberi kemudahan.
The differences in these provisions maybe due to the different time period when the respective laws were written and compiled. It might have also been due to different attitudes of society towards the acceptance of Islamic law Jusoh According to Fang , it is futile to attribute the compilation of Undang-undang Melaka Malacca Laws to any one ruler or at any one period.
Nevertheless, the Malacca Laws proper , and possibly also the section on Maritime Law, were first established during the time of Sultan Muhammad Shah and were completed during the reign of Sultan Muzaffar Shah , the golden period of the Malacca Sultanate. The section on Muslim Islamic laws, especially those pertaining to commercial matters and procedures, including criminal may have been compiled sometime later Fang It only stated some of the Islamic principles relating to the rulers and the concept of leadership.
On the other hand, Mahmood Zuhdi commented that, even if the matters relating to the Federation were not mentioned in Malacca Laws, this does not mean that absenteeism of the said laws in writing can be taken as grounds to say that the basis of Islamic constitution never existed at that particular time.
This is because the constitution for a federation may not necessarily be in writing. It may have been an oral tradition Mahmood Zuhdi When the kingdom of Malacca was defeated by the Portuguese in , the texts of the Malay laws were taken and adapted with modifications in the various Malay states including Pahang, Johore and Kedah Ibrahim, The Pahang laws which were formulated during the reign of Sultan Abd.
Ghafur Muhaiyyuddin Shah — A. There were also provisions dealing with trade sale, security, guarantee, investments trust, payment for labour, land, gifts and waqfs. The Johore laws too, were modelled on the Undang-undang Melaka. At the beginning of the 20th century, the codifications of the Islamic law, as seen in Turkey and Egypt, were translated into Malay and adopted. According to Ahmad Ibrahim, all these examples show that there were attempts before the arrival of the British to modify the Malay customary laws and to adopt Islamic laws.
This was in progress when the British arrived and exercised their influence in the Malay states Ibrahim and Joned In the case of Shaikh Abd. Latif v. However, according to Hooker , in this instance, Muslim law was applied, not because it was the law of Selangor but because it was the proper law relating to a Muslim estate. In other words, Hooker was saying the Court was not prepared to admit that Muslim law had a territorial definition as the law of a State or an area. In this case, the present authors are incline to support his view by mentioning the case of Ong Cheng Neo v.
Yap Kwan Seng [ 1 S. Laton binte Malim Sutan, [ 6 F. The court must accept the law and there should be no confusion as to what was the local law.
However, M. Hooker in commenting this case wrote: It was, in other words, placed in the embarrassing position of attempting to administer a local law without knowing its contents!
Hooker Replacing Islamic Law The British arrival in Malaya led to the introduction of the English law thus replacing the hitherto Islamic law. Malaya was officially colonised by the British in via the Anglo-Dutch Treaty of , which divided the Malay Archipelago into British and Dutch spheres of influence. Malacca and the rest of the Malay states came under the jurisdiction and administration of the British while Indonesia was governed by the Dutch.
Penang and Malacca became British colonies and therefore the English law was introduced via the Charter of Justice , which set up the courts of judicature and provided in effect that the Courts should apply the English law. Nonetheless, this was subject to the qualification that in cases where the introduction of English law would cause hardship and injustice to the inhabitants, they would be allowed to follow their own personal law.
Thus, in regard to the Muslims in Malacca and Penang, they were allowed to follow the Muslim law in matters of marriage and divorce. Later, legislation was enacted to provide for the administration of the Muslim family law. The Malay States were, in theory, independent Malay kingdoms but English law was introduced through the influence of the British in two ways: Under these provisions, the British Resident advised the Sultan to enact laws such as the Contracts Act, the Penal Code, the Evidence Act, the Criminal Procedure Code and the Civil Procedure Code, based on the Indian modifications of English law and in the case of land, laws following the legislation in Australia based on the Torrens system of registration of title.
The second stage of British influence was the introduction of the court system. On the advice of the British, the Malay Sultans set up civil courts and these were presided by British judges. In the absence of legislation governing this matter, the judges tended to refer to the law in England and in this way the English law of torts and the English rules of equity were introduced to the Malay States.
British colonialism and its influence led to Peninsular Malaysia inheriting a dual system of courts. The civil courts deal with the majority of the laws concerning contracts, torts, commercial cases, property and succession to property, crime and constitutional and administrative cases; all Malaysians are subjected to the jurisdiction of the civil courts.
The Syariah Courts on the other hand deal mainly with Islamic family law and some criminal offences relating to the practice of Islam, and have jurisdiction only over Muslims. An amendment to the Federal Constitution has provided that the civil High Court and subordinate courts shall have no jurisdiction over any matter that falls within the jurisdiction of the Syariah Court Federal Constitution, Article 1A.
The jurisdiction of the Syariah Courts however, is still limited Ibrahim ; Faruqi ; Mohamad ; Salbiah Hence, some would see these two separate legal systems as not harmonious and thus, more serious efforts need to be taken to harmonise them Pa et al. However, most of the time the Constitution does not spell out everything in detail. Due to this uncertainty, the role of the court becomes important. This becomes apparent during the litigation process where the courts determine and validate or invalidate certain practices.
Nevertheless, it is not rare that the judgements by the court are more confusing and fail to solve the problem. The same scenario prevails regarding the position of Islam in the Constitution; a matter that has to be discussed first before discussing the issue of Islamic criminal law. The position of Islam in the Constitution is generally limited. Article 3 1 of the Federal Constitution recognises Islam as the religion of the Federation.
It says: Islam is the religion of the Federation; but other religion may be practised in peace and harmony in any part of the Federation. Though Article 3 1 recognises Islam as the religion of the Federation, subsection 4 of the same Article limits it.
Nothing in this Article derogates from any other provision of this Constitution. Malaysia has two legal systems—civil and Syariah—and the Syariah Court has limited jurisdiction, as seen in in the above sub section. Nevertheless, the status of Islam compared with other religions—which are free to be practised by their followers—is at a higher level and recognised by the government Bari Thus, Islam in Malaysia occupies a superior position.
It may be because of this position, it appears that some minority groups and open-minded Muslims feel increasingly discriminated despite the apparent protection provided by the Federal Constitution Jeyamohan ; Haji However, whether Islam, the official religion, overshadows the civil courts remains to be seen. This is based on the fact that the said powers are mentioned under the State List of Ninth Schedule of the Federal Constitution, while important matters such defence, internal security, criminal law and the administration of justice and finance are listed under the Federal List List I—Federal list Legislative Lists of Ninth Schedule of the Federal Constitution Latif Based on this provision, the power to legislate any laws relating to Muslims regarding the matters included in the State List is within the jurisdiction of the state.
Thus, every state has the power, and because of this, it is a fact that the Islamic Law Enactments are different from one State to another. Moreover, the fatwa relating to some issues are different between the States. These different Islamic Law Enactments are not only confusing the public but also affecting the firmness of the fatwa itself and the Muslim image as a whole.
The effect of the lack of uniformity of these laws can be seen from the different time when Hari Raya Aidilfitri is celebrated. Although Islam is the religion of the Federation, there is no head of Muslim for the entire Federation.
The remaining nine states of Malaysia have each their own Ruler, or Sultan, as the Head of Islam in that states. The Conference of Rulers have agreed, however, that in respect of ceremonies and observances in the Federation, the King is authorised to represent each of the Rulers as the head of religion in their states [Federal Constitution, Article 3 2 ].
The various state constitutions provide that the Ruler may act in his discretion in the performance of any functions as the patron of Islam, but it appears that the YDPA may only act on advice in performing his functions as the patron of religion in Malacca, Penang, the Federal Territory, Sabah, and Sarawak Kamali Though the state government has the power to enact laws for Muslims it only relates to and governs personal laws and family matters.
This means that even if the state governments can enact laws to govern Islamic criminal matters, their jurisdictions are still limited. Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a state may make laws with respect to any of the matters enumerated in the State List that is to say, the Second List set out in the Ninth Schedule or the Concurrent List.
If this happens, the said laws will be regarded as invalid by the court because the laws, which are against the Federal Constitution, are void. This is mentioned in Article 4 1 of the Federal Constitution, which reads as: This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
Thus it is clear that Islamic laws are only accepted to be implemented in a very limited way, and even this limitation is subject to intervention Jusoh Hairuddin Megat Latif concluded that, this situation is not so strange because the main objective of making Islam as the official religion of the Federation is only for formal functions such as to allow prayers to be performed in a good manner, and the coronation function of the Yang di-Pertuan Agong, among others Latif Conclusion Based on the above discussion, it can be discerned that historically, the laws which were implemented in Malaysia before colonisation, were mainly based on Islamic influence.
Some of them were in harmony with Islam even though they were not based on the Quran or Hadith they were based on customary laws. If we were to compare the position of Islam during the Malacca Sultanate and its current position, the scope in the Malacca Laws was wider as the laws were not only limited to the personal and family matters but also covered aspects of crime, civil, economy and commercial.
The changes and developments to the Muslim laws were also influenced by the pluralistic society as well as respect for multiculturalism in Malaysia. All authors read and approved the final manuscript.
Competing interests The authors declare that they have no competing interests. Ahmad Termizi Abdullah, Phone: Abdul Karim Ali, Phone: Islam and adat. Indones Malay World. US Admin Phone: Admin Fax: Admin Fax Ext: Admin Email: Domain Admin Tech Organization: MA Tech Postal Code: US Tech Phone: Tech Fax: Tech Fax Ext: Tech Email: Unsigned Registrar Abuse Contact Email: ORG is providing privacy protection services to this domain name to protect the owner from spam and phishing attacks.
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