LAW OF EVIDENCE IN ISLAMIC COURT

A. INTRODUCTION Law of evidence in a dispute/case is a complex part in litigation process. 1 Its complexity becomes abstruseness, in reason that evidence is related to the ability to reconstruct the action or past events as a truth.2 In private case, the judge supposed to be passive in action, 3 they only waiting for the lawsuit concerning the rights submitted before them (iudex ne procedat ex officio: see article 188 HIR, 142 Rbg.) .4 The understanding of passive action means that judge is as the final attempt in solving a dispute and for whom reaching justice, on reason that they are capable of understanding the law (ius curia novit) and so they are enlightened ones.5 Thus they have their own function and role for the limited actions on finding the formal truth and collecting the truth from the facts and reasons submitted by the parties.6 Religious Court or could be named so called as Islamic Court in Indonesia has the absolute competences in the scope of private for specific cases stated in the article 49 Act No 7 Year 1989.7 It stated that Islamic Court deserves the rights to hold the authority to investigate, decide, and solve the settlement for Muslim Community in the scope of

Harahap, M. Yahya, SH., Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan. Jakarta: Sinar Grafika, 2005; cet II, p. 496 2 Ibid 3 Ibid, p. 499 4 Mertokusumo, Sudikno Prof., DR., SH., Hukum Acara Perdata Indonesia,Yogyakarta: Liberty, 1988; cet III, p. 9 5 Ibid, p. 11 6 Supranote 1, p. 499 7 Harahap, M. Yahya, SH., Kedudukan, Kewenangan, dan Acara Peradilan Agama UU No. 7 Tahun 1989. Jakarta; Sinar Grafika, 2007; cet IV, p. 101

marriage, heritage, testament, bequest (based on Islamic Law), wakaf, and shadaqah. 8 And for marriage, it used the Statutes concerning marriage been applying.9 For the procedure in Islamic Court, used the Law of Private Procedure been using in the General Court.10 Article 54 of the Act No 7 year 1989 concerning the Islamic Court stated that the law of procedure applied in the Islamic Court is the law of private procedure that also been applying in the General Court except that has been regulated specifically and specially in this Act.
11

And the Law of Private Procedure been using in General Court especially

District Court is based on the article 5 clause 1 UUDar/1951 that stated for the Law of Private Procedure ought to use Het Herziene Indonesisch Reglement (HIR: S. 1848 no 16, S. 1941 no 44) and Rechtsreglement Buitengewesten (Rbg: S. 1927 no 227).12 And those officially applied as the Law of Private Procedure, 13 and divided to HIR that used in Java and Madura, and Rbg used outside Java and Madura.14

B. LAW OF EVIDENCE IN DIVORCE CASE According to HIR system, in the private procedure, judge bound to the valid evidence tools, meaning that they just permitted to take a decision based on the evidence tools stated by the law only.15 And the evidence tools in private procedure stated by the law (Art 164 HIR, 284 Rbg, 1866 BW) are written evidence, presumption evidence, confession evidence, and oath evidence.16
8

UU No. 7 Tahun 1989, Kumpulan Peraturan Perundang-undangan Dalam Lingkungan Peradilan Agama. Jakarta: Al-Hikmah, 1993, p. 299 9 Ibid 10 Ibid, p. 301 11 Syahlani, Hensyah, H., SH., Pembuktian Dalam Beracara Perdata & Teknis Penyusunan Putusan Pengadilan Tingkat Pertama. Jakarta: Grafgab Lestari, 2007, p. 1 12 Supranote 4, p. 6 13 Ibid 14 S.E.M.A. No. 19 year 1964 and No. 3 year 1965 15 Supranote 4, p. 116 16 Supranote 1, p. 556

The procedure of divorce in the marriage Act regulated in the article 39 to 41, 17 and also in the Government Regulation No. 9 year 1975 article 14 to 36. 18 After observing the regulations stated above, can be concluded that divorce can be classified into two kinds way which are so called as Cerai Talak and Cerai Gugat. 19 Act No. 7 Year 1989 especially regulated concerning the investigation (proving to evidences) of the marriage dispute mainly regarding divorce.20 It has been flatly classified the form and procedure of Cerai Talak and Cerai Gugat, both the forms of divorce regulated in the different paragraphs, Cerai Talak regulated in the Chapter IV, second part, paragraph 2, and Cerai Gugat regulated in paragraph 3.21 a. LAW OF EVIDENCE IN CERAI TALAK Rasulullah SAW said:22

) (
Halal (permissible action) that is the most hated by Allah azza wa jalla is Talak The purpose of marriage is for reaching a welfare family (sakinah, mawadah, and rahmah). But, if this could not be reached, Islam proposed peaceful way to solve it, but if finally it also could not be reached, divorce is the last attempt.23 Allah SWT said:24

17 18

UU No 1 year 1974, supranote 8, p. 141-142 Ibid, p. 168-175 19 Soemiyati, SH., Hukum Perkawinan Islam dan Undang-Undang Perkawinan (UndangUndang No. 1 Tahun 1974, tentang Perkawinan). Yogyakarta: Liberty, p. 130 20 Supranote 7, p. 214 21 Ibid, p. 215 22 Rahman I.Doi, Abdur, Inilah Syariah Islam, Jakarta: Pustaka Panji Mas, 1991, p. 241 23 Ibid 24 Al-Quran Al-Kariim, The Noble Quran, translators: Dr. Muhammad Taql-ud-Din Al-Hilali, Ph.D and Dr. Muhammad Muhsin Khan, Riyadh: Darussalam

 (35 , )
If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, Well-Acquainted with all things. In syariah, there is no procedural step before divorce conducted. 25 But if someone that is in an extra-ordinary condition, conducting divorce must be fulfilled by three conditions to be valid, which are Aqil, Baligh, and Mukhtar. 26 And the one who has the authority to assert talak is the husband, Rasulullah SAW said:27

: .. ( ) :
And Rasulullah SAW ever asked by a guy saying: (if) one day I would like to get married with fulanah, but she wants to be divorced. (how is this?). His answer: divorce what not belonged.

: ..
25 26 27

Supranote 22, p. 247 Ibid, p. 249 Abbas, S. Ziyad, Pilihan Hadits Politik, Ekonomi, & Sosial, Jakarta: Pustaka Panjimas, 1991

 ) : ( ,
Rasulullah SAW ever asked by servant, he said: my maam took me in marriage, but now she wants to break me with my wife. And Rasulullah commended to Allah and said: what are the hearts of the groups; they took their servant in marriage with their female servant, and then want to break them! Get known that talak is only belonged to the husband. In Indonesian law, talak has been regulated in the Act No. 1 year 1974, and in the Government Regulation No. 9 year 1975.28 And after both been ratified, talak must be asserted by the husband before the court in the competence Islamic Court. 29 The private absolute rights for the husband in the permission of talak, have mostly been transferred to the courts authority, the permission nor the prohibition for asserting talak depends on the court decision (verdict) after the judge considered and determined by hearing the argument of the husband and the contra argument told by the wife against him. 30 She also permitted to submit and prove the evidences and witnesses in proving and strengthening her arguments.31 In the law of evidence concerning the divorce especially for Cerai Talak has been specifically regulated by examining in detail the reason of the divorce itself. 32 The reasons that being the basis for divorce as Cerai Talak have been limited in the article 19
28 29

Supranote 7, p. 215 Keluarga Muslim, PT. Bina Ilmu, Surabaya, translator: Ansyari Thayib, p. 297 30 Supranote 7, p. 51 31 Ibid 32 Arto, Mukti H,A,M Drs., SH., Praktek Perkara Perdata Pada Pengadilan Agama, Yogyakarta: Pustaka Pelajar, 2000, p. 214

Government Regulation No. 9 year 1975 jo explanation of the article 39 Act No. 1 year 1974.33 The reasons for Cerai Talak can be mentioned and explained appropriate with the reasons regulated in the article 116 KHI jo article 19 Government Regulation No. 9 year 1975 jo explanation of the article 39 Act No. 1 year 1974,34 as follows35: 1. Divorce in reason the wife committed zina. For proving the evidences, the husband (hereafter referred to as Supplicant) has to provide 4 witnesses, and if the wife denies his husbands statement and he cannot provide 4 witnesses, the judges by their authority can order the supplicant to take an oath, and the settlement conducted by Lian. 2. Divorce in reason the wife is a drunker, condenser, gambler, or other bad action that is difficult to get cured, for proving the evidences, used the evidence tools based on the law of evidence in the law of private procedure. 3. Divorce in reason the wife left him for 2 years continued without his permission and invalid reason or because of the other thing that is out of her capability. The way for proving the evidences, can be used the evidence tools such as written form or letter, the witnesses, or the other tools that can be received by the judges. 4. Divorce in reason the wife get punished imprisoned for 5 years or more serious punishment after the marriage solemnized. For the supplicant, he has to submit the verdict that asserting the punishment of her by 5 years
33 34

Supranote 7, p. 217

Omod, Mahmud, H., Drs., Islam di Indonesia. 35 Supranote 32, p. 214-218

Kompilasi Hukum

imprisoned or more serious punishment with also submitted the official statement stating the verdict has its permanent legal power (inkracht) (see article 23 Government Regulation No. 9 year 1975, and article 74 Act No. 7 year 1989). 5. Divorce in reason the wife got physical defect or diseases causing she is not capable of conducting her obligation as a wife. There are many ways to prove the evidences by this reason, as follows: 1. The confession from the wife before the court by showing her physical defect obviously; 2. The statement from the witnesses provided who can giving conviction to the judges, or if necessary provided an expert witness; 3. The judges can order the defendant to check her condition to the doctor, but if the defendant refuses to check her condition to the doctor although has been ordered by the judges, so she will be defeated (law of inversely evidence) (see article 75 Act No. 7 year 1989). 6. Divorce in reason there are continuously husband-wife disputes, fracas, and it will be hopeless to live together harmoniously as a family. The procedural and the evidence have been regulating in the article 22 Government Regulation No. 9 year 1975, article 76 Act No. 7 year 1989 as follows:

1. This reason can be classified as Syiqaq, it is an acutely dispute between husband and wife; 2. The judges have to examine the dispute, and the form of the disputes; 3. The judges have to examine the reason of the disputes; 4. The judges have to consider the reason of the disputes, is it true or not that if the reasons are going to influence the family life; 5. The judges have to hear the witnesses statements from the family or the closest ones, as the witnesses, they have to be taken an oath; 6. After hearing witnesses statements concerning the disputes, can be appointed one or more from each family or other to be hakam; 7. The appointment of hakam is facultative, it is the authority of the judges to assert the needed of appointing hakam or not, and hakam can be appointed by each parties family or the judges themselves; 8. Hakam appointed under an oath, then the judges explain the guidance concerning hakams duty, that is further examining the reason of the disputes, and in any full attempt to placate both of the parties and giving the consideration to the judges. Hakam reports his result before the court, and the judges are freely of appraising hakams consideration. 7. And for preventing falsehood and sly tricks against the law committed by both parties in a conspiracy, although divorces reasons are not denied by

the defendant, the judges obliged to further prove the truth of the evidences submitted by the other evidence tools.36

b. LAW OF EVIDENCE IN CERAI GUGAT Cerai Gugat has been regulated in the article 40 Act No. 1 year 1974, article 2036 Government Regulation No. 9 year 1975, article 73-88 Act No. 7 year 1989, article 113-148 KHI.37 Basically, the process of proving to evidences in Cerai Gugat case is not too much different to Cerai Talak,38 except in the kinds of the conditions as follows:39 i. Divorce in reason the husband committed zina; ii. Violation to talik talak; iii. Violation to the marriage agreement/contract. 1. Divorce in reason the husband committed zina. It is used if a divorce suit submitted by the reason that the husband has committed zina, whereas the plaintiff only has inception evidences, she cannot fulfill the evidences mentioned, all attempt for confirmation the evidence tools are impossibly acquired neither from the plaintiff nor defendant, and the judges have been arguing that the suit is not no evidence tools at all, thus the judges on behalf of their authority can order the plaintiff to take an oath (suppletoir oath), if all been conducted, the suit can be granted (article 87 and 88 Act concerning Islamic Court) 2. Divorce in reason the husband violating talik talak. In the evidence procedural, the judges have to prove:
36 37 38 39

Supranote Supranote Supranote Supranote

31, p. 215 32, p. 224 7, p. 234 32, p. 227

1. The truth that the husband after Akad Nikah (Marriage Agreement) has been asserted talik talak promise; 2. The truth that the husband has breached his talik talak promise; 3. The truth that the wife is not willing for the breach; 4. The truth that the wife will pay iwadl to the husband; 5. The truth that the judges can receive the complaint from the wife by examining the evidences submitted by her before the court; 6. Proving to evidences in this matter done based on the general law of private procedure 3. Divorce in reason that the husband violated marriage agreement as stated in the article 51 KHI. Thus the judges have to prove: 1. The existence of the marriage agreement; 2. The validity of the marriage agreement and principals along with influential toward the totality of a family; 3. The truth that the husband has violated the marriage agreement; 4. Proving to evidences in this matter done based on the general law of private procedure. 4. And for preventing falsehood and sly tricks against the law committed by both parties in a conspiracy, although divorces reasons are not denied by the defendant, either because of verstek or the confession from the defendant, the judges obliged to further prove the truth of the evidences submitted by the other evidence tools.40

40

Supranote 31, p. 228

C. CASE STUDY OF DIVORCE There is a real case concerning Cerai Gugat, 41 the lawsuit submitted by Wahyuni binti Sumardi (hereinafter referred to as Plaintiff) against Pranoto al. Ahmad Syarifudin bin Fuad Sagaf, they both have been solemnized a registered marriage at October, 12 th 2004 by no. 419/25/X/2004 dated October, 12th 2004. They have been living harmoniously for 4 years 3 months, and in the beginning January 2009, there were many disputes and fracas that cause of less attention from the defendant to the plaintiff, the defendant was not entirely giving careless and love to the plaintiff while she was suffering disease that take a long time to be healed although many times has been checked medically and alternatively. And also the defendant ever said that the plaintiff was useless, even the medicinal treatment cost has been reached to amount eight million rupiah, and the defendant just helping her for amount a million rupiah, and the rest helped by plaintiffs parents. Beside of it, the defendant often shouted with high intonation that breaking plaintiffs heart and the summit of cracking family relation between them happened in January 2009, causing the defendant left her and went home to his parents for two months until now, for two months, there were no longer good relationship externally and internally, and also for two months, the defendant had been leaving her. And because of the reasons mentioned, for the petitum, the plaintiff asked the court to divorce the marriage between them. This case can be classified to Cerai Gugat in reason there are continuously husband-wife disputes, fracas, and it will be hopeless to live together harmoniously as a family, or it can be called as Syiqoq. According to the article 76 clause 1 Act No. 7 year 1989, it means an

41

Berkas Perkara Minutasi No. 534/PdtG./2009/PA. Wsb. Wahyuni v. Pranoto al. Ahmad Syarifudin

acutely dispute between husband and wife. Syiqaq has been regulated in Al-Quran Surah An-Nisa 35, Allah SWT said:42

(35 , )
If you fear a breach between them twain (the man and his wife), appoint (two) arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, Well-Acquainted with all things. For the case of divorce in reason by syiqaq, the procedural and the evidence have been regulating in the article 22 Government Regulation No. 9 year 1975, article 76 Act No. 7 year 1989 as follows:43 i. This reason can be classified as Syiqaq, it is an acutely dispute between husband and wife; ii. The judges have to examine the dispute, and the form of the disputes; iii. The judges have to examine the reason of the disputes; iv. The judges have to consider the reason of the disputes, is it true or not that if the reasons are going to influence the family life; v. The judges have to hear the witnesses statements from the family or the closest ones, as the witnesses, they have to be taken an oath;
42 43

Supranote 24 Supranote 32, p. 217-218

vi. After hearing witnesses statements concerning the disputes, can be appointed one or more from each family or other to be hakam; vii. The appointment of hakam is facultative, it is the authority of the judges to assert the needed of appointing hakam or not, and hakam can be appointed by each parties family or the judges themselves; viii. Hakam appointed under an oath, then the judges explain the guidance concerning hakams duty, that is further examining the reason of the disputes, and in any full attempt to placate both of the parties and giving the consideration to the judges. Hakam reports his result before the court, and the judges are freely of appraising hakams consideration. In this case, for the evidence, the plaintiff has submitted her written/letter evidences and the witnesses to be checked before the court, the written/letter evidences consisted of: a. Photo copy duplicate of certificate of marriage No:

Kk.11.0704/PW/OO/118/2008 dated March, 17th 2009 that has been legalized and nazegelen (P.1) b. Photo Copy Residence Identification Card No: 33.0704.800985.0002 dated March, 3rd 2008 that has been ratified and nazelegen (P.2) And those letter evidences has been checked and compared to the original and appropriate to the original. And for the letter evidences, the defendant does not deny for the evidences. And then the plaintiff provided two witnesses, one is the plaintiffs blood mother, and another one is plaintiffs blood brother, after that both witnesses have been asked several questions by the judges, and finally, the defendant does not deny the statements from both witnesses and he has no objection to the both witnesses statements.

And finally, the judges have been discussed together while the session has been suspending, after discussing, the judges call all parties in questioned to get back in session, and the chief of session asserting the opened-session to general, and decided the determination granting the plaintiffs petitum, and pass talak one bain sughro to the defendant (PRANOTO al AHMAD SYARIFUDIN bin FUAD SAGAF) toward the plaintiff (WAHYUNI binti SUMARDI).

D. LAW OF EVIDENCE EXCLUDE DIVORCE AND FORNICATE Indonesian Religion Court is established based on the Act no. 7/ 1989. The article 54 of this act stated that the procedural law applied in Religion Court is the same with the private procedural law in the General Court, except for the matters which have been regulated in this act.

The Act no. 7/1989 is not regulating the matter about evidence, so it will refer to the private procedural law.44 The Indonesian Private Procedure is based on the HIR. The evidence matter is regulated in the article 164 of HIR. Based on that article, the legal evidences are45: a. Written document (art. 165,168; art. 1867 BW): any written information which made in the written form. For example: certificate. Written document is very important evidence in the court. The importance of written document is also expressed in the Quran Q.S Al Baqarah: 28246:

, , , (282 ) .....
O you who believe! When you contract a debt for fixed period, write it down. Let a scribe write it down in justice between you. Let not the scribe refuse to write as Allah has taught him, Let him (the debtor) who incurs the liability dictate, and he must fear Allah, his Lord,.(Al-Baqarah 282)
b.

Witness (art. 168-172; art. 1895 BW): any information given by the person who hear, sees, and experiences the actions. Principle unus testis nullus testis (one witness is not witness) is applied. Any person can become a witness in the court, but there are some exception47: Kin (family) The wife or husband Under 15 years old children

44

Drs. H. Anshoruddin, SH, MA, Hukum Pembuktian Menurut Hukum Acara Islam dan Hukum Positif, Jogjakarta: Pustaka Pelajar, 2004, p. 63 45 Drs. Cik Hasan Bisri, MS, Peradilan Agama di Indonesia, Jakarta: RajaGrafindo Persada, 2003, p.250 46 Supra note 44, p.64 47 Supra note 45, p. 251

 Insane In Islam, there is an obligation to give testimony, as express in Quran Q.S Al Baqarah: 28348:

... , ... (283 )

and conceal not the evidence, for he who hides it, surely his heart is sinful(AlBaqarah 283). According to Abdul Karim Zaidan, person who giving testimony shall fulfill some requirements49: Mature Sane Know of what have been seen Islam Fair Capable to see Capable to talk c. Presumption (art. 173; art. 1915 BW): a conclusion of legal facts. d. Acknowledgement (art. 174, 175, 176; art. 1923 BW): a statement of a party about a fact.
e.

Oath (art. 155-158, 177, 381; art. 1929 BW): a statement which stated in a formal way in the name of God (Allah SWT). There are 3 kind of oath in the law of private procedure50: Suppletoir: as an additional evidence of other evidence (legal fact) Aesmatoir: to estimate the sum of loss to be paid Decissoir: as the only evidence (the party has no other evidence)

48 49 50

Supra note 44, p. 75 Ibid, p. 75-76 Supra note 45, p. 252

E. CASE STUDY EXCLUDE DIVORCE AND FORNICATE The case we brought is the case of child adoption. The case happened in Wonosari, when a sterile mother named Tumijem, desires to adopt a10 years old child named Pawitri. She requests the court to permit her adopt the child. Here, the mother, as requester needs to proof to the judge that she appropriate to adopt the child. Firstly, the court examines the statement of parties: The statements of Tumijem The statements of Pawitri The biologic mother of Pawitri named Giyanti

The evidences brought before the court are: Written documents, among other: the copy of identity card of Tumijem, the copy of marriage certificate, copy of identity card of Giyanti, copy of Birth Certificate of Pawitri, copy of identity card of all witnesses. Witnesses: Sutikno, the brother in law of Tumijem Endro, the neighbour of both All statements and testimonies given before the court are giving Tumijem a chance to adopt Pawitri. They stated that Tumijem already treat Pawitri in a proper manner, and no domestic violation occurred when Pawitri live with Tumijem. Giyanti even gives permission for Tumijem to take care of her daughter.