Nikah

The Muslim populous of the UK now numbers almost 3 million people. In this context, with empirical research estimating that 30% of Muslim marriages are not legally valid, there is a clear lacuna between the law and practice. Much has been written about the topic of relationship regulation in recent years in the context of cohabitation and same sex relationships and some clarity has been given to same sex couples by the enactment of the Marriage (Same Sex Couples) Act 2013. There remains a lack of clarity and uniformity in the existing law dealing with marriage and it is, in part, due to this plurality that the Home Office recently concluded its Sharia Law Review (www.gov.uk/government/publications/ applying-sharia-law-in-england-and-wales- independent-review). The Home Affairs Select Committee was also conducting an inquiry into Sharia Councils during late 2016/early 2017 but due to the general election on 8 June 2017 the Committee closed the inquiry and it has not yet been re-instated. It is concerning that given the depth and breadth of the issues impacting (predominantly) British Muslim women, we lack the legal remedies to address the unfairness caused following the breakdown of an Islamic only marriage and have gone so far as to call this Home Office review a ‘non-event’.

There are some different opinions about the discourse of Nikah Siri criminalization that due to Nikah Siri is official and valid under Islamic jurisprudence. However, it is seen as unregistered marriage under Indonesia governmental law and has caused many problems for people who are engaged with it. This research aims to find out the fundamental problems and the perspectives of religious law towards criminalization of the perpetrators Nikah Siri. In order to answer the problems, the researcher collects the literature reviews based on primary and secondary data. Both data is analyzed by descriptive method. According to the results, the government can criminalize the perpetrators of Nikah Siri by jarimah ta " zir. It is done to prevent the practice that will impact for other people. This prevention is called by saddudz az-zari " ah. Abstrak: Wacana pemidanaan pelaku nikah siri terdapat perbedaan pendapat karena Nikah siri sah dan halal secara hukum Islam, akan tetapi nikah siri menurut UU perkawinan di Indonesia adalah illegal dan banyak menimbulkan masalah dan kemudharatan bagi pelaku nikah siri. Penelitian ini bertujuan untuk mencari jawaban dari persoalan pokok, pandangan hukum Islam terhadap wacana pemidanaan pelaku nikah siri. Untuk memperoleh jawaban tersebut peneliti menggunakan kajian kepustakaan dengan data primer dan data sekunder. Kedua data tersebut dianalisis dengan mengunakan metode deskriptif. Berdasarkan kajian yang dilakukan, ditemukan pemerintah dapat memidanakan pelaku nikah siri dengan jarimah ta " zir. Dengan pertimbangan memidanakan pelaku nikah siri untuk mencegah terjadinya perbuatan yang merugikan orang lain. Upaya pencegahan tersebut disebut saddudz az-zari " ah. Kata kunci: nikah siri, hukum islam, Ta " zir Pendahuluan Sebuah pernikahan dipandang sah apabila telah memenuhi rukun nikah, yaitu calon mempelai pria, calon mempelai wanita, wali mempelai perempuan, dua orang saksi, dan ijab qabul, serta memenuhi syarat-syarat nikah. Yaitu syarat calon suami yang meliputi beragama Islam, laki-laki, jelas orangnya, dapat memberikan persetujuan dan tidak terdapat halangan perkawinan. Syarat calon istri yang meliputi beragama (meskipun yahudi atau nasrani), perempuan, jelas orangnya, dapat dimintai persetujuannya, dan tidak terdapat halangan perkawinan. Syarat wali nikah yaitu laki-laki, dewasa, mempunyai hak perwalian, dan tidak terdapat halangan perwalian.

The concubines, with whom the sultans lived a family life, were classified according
to a certain hierarchy in the Harem. The first wives of the sultan and those who gave birth
were called Kadınefendi. The other wives with a lower status than the Kadınefendi wives
were called Ikbal Hanımefendi. According to Islamic law, marriage with a concubine is not
like a marriage with a free woman. If a marriage is desired, the concubine must be freed. Until
the 19th century, sultans did not marry their concubines for a few exceptions. In the 19th
century, the legal status of concubines in the Ottoman Empire became controversial. The
countries of origine changed when the Ottoman Empire was unable to conquer new territory.
Consequently, the enslavement procedure of prisoners of war disappeared. Instead, Cauca-
sian immigrants, who had to leave their homeland mainly due to the Russian attacks, gave
their daughters to the Ottoman palace so that they would not suffer misery and could reach
important positions in the future. Among these were orphans from poor families as well as
those from noble Caucasian dynasties. Even though the young women in the palace were
called concubines, at least some of them were free/Muslim persons. This meant, that they
could not be enslaved according to Islamic law. Although there was no problem for those who
served in the palace, a remarkable situation emerged for the would-be spouses of the sultan.
Could a woman from a free and Muslim family be the sultan's wife without a marriage bond?
Was the limitation of the Kadınefendi numbers to four (in times of Sultan Abdülaziz) due to
the Islamic law principle, that a man could marry maximum four wives? Was there a marriage
ceremony (nikāh) for Kadınefendi wives? What was the situation of the Ikbal? Satisfactory
answers to these questions have not been given yet. However, there are no official records it
was claimed that lately sultans married especially their concubines who were Abkhaz de-
scendants and included them among their wives in this way, because they were free and Mus-
lims. Thus, the matter whether Sultan Abdülhamid II's wives were concubines or wedded be-
came the subject of some research today. Memoires claim that almost all of Sultan Abdülha-
mid's wives were free and of Muslim origin. According to this, it was said that the wives of
Sultan Abdülhamid could not have the status of the concubine and that their relationship
should have been by marriage. On the other hand, considering that a maximum of four women
can be married according to Islamic law, the marriage of the Sultan, who had thirteen wives,
raised juristic questions. This problem was most clearly seen in the inheritance case filed by
his heirs after the death of Sultan Abdülhamid. In this case, where it was claimed that Sultan
Abdülhamid was married to nine wives, no objection was made to that claim. In this study,
information about the wives of Sultan Abdülhamid and their legal status was tried to be de-
termined through the documents related to their salaries during the 2nd Constitutional Era.
Besides, the issue of nine wedded women, which emerged in the case of Sultan Abdülhamid's
inheritance, was evaluated in terms of fiqh (Islamic jurisprudence). Sultan Abdülhamid was
never accused of marriages contrary to Islamic law by his opponents during and after his
reign. From this point of view, it can be said that there was no situation contrary to Islamic
law regarding the Sultan's harem at that time. This might be due to three possibilities: Firstly,
some wives have concealed the truth in the court, which is the weakest possibility according
to the data obtained. Secondly, the talaq (divorcement) was hidden by Sultan Abdülhamid
and his wives were not aware of it. This possibility has been found to be problematic when
evaluated in terms of Hanafi fiqh. Thirdly, the practice of al-nikāh al-tanazzuhī (marriage per-
formed in order to avoid from fornication). Considering the correspondence between the
state departments in the period starting with the 2nd Constitutional Monarchy and until the
Republic, it is clear that the Kadınefendis were regarded as married wives (their number was
limited to four), while the Ikbals were regarded as concubines. From this point of view, it is
thought that the most plausible possibility is that the Ikbals were regarded as concubines and
their marriages were al-nikāh al-tanazzuhī.

İslâm hukukunun kadının haklarını tespit ve tayin noktasında ortaya koyduğu en önemli hususlardan biri olan mehir, kültürlerde farklı isimler adı altında uygulanagelmiş olsa da salt kadının hakkı olma özelliğini İslâm hukuku sayesinde kazanmıştır. Para, mal, menfaat gibi şeylerin mehir olarak kabul edildiği İslâm hukukunda mehir, kadının şahsî malı olarak değerlendirilmiş ve bu mal üzerindeki tasarruf yetkisi kadına verilmiştir. Vasfı ne olursa olsun nikâh akdinde taraf olan her kadının mehir hakkı vardır. Evliliğin bir şekilde sona ermesi halinde kadın, yeni bir yuva kurma imkânı bulana kadar geçen süre zarfındaki ihtiyaçlarını mehir sayesinde karşılayabilecek ve belki de yüksek miktarda olan bir mehirle hayatını ekonomik açıdan güvence altına alabilecektir. İslâm hukukunda farklı çeşitleri olan mehrin, yarısının veya tamamının kesinleşmesini gerektiren hususlar, mezhepler arasında ihtilafa konu olsa da mehirsiz bir nikâh akdinin olamayacağı konusunda icma oluşmuştur. Mehrin tesmiye ya da teslimi hususunda ortaya çıkan anlaşmazlıklar ise mehir davaları olarak incelenip konuya dair hükümler tespit edilmiştir. Bu çalışmada mehir konusundaki ihtilaflar ele alınacaktır.

Dower (al-mahr) is one of the most important matters revealed by Islamic law about determination and identification of women’s personal rights. Even if dower has been applied with different names in the human societies, it has won feature of being mere woman’s right thanks to Islamic law. In the Islamic law, in which money, goods, benefit have been accepted as dowers, dower has been evaluated as woman’s personal property and the mere power of disposition has been given to the woman. Every woman who is one of the sides in the marriage contract has right of dower regardless of their attributes. Although there are some disputes between sects about issues that require the becoming definite dower’s half or whole, there is an ijma about that a marriage contract can not be without a dower. The conflicts about specifying or delivering of dower have been examined and the judgements regarding the issue have been determined. In this study, the disputes about matter of dower will be handled.