Inter-Religious Marriage in Islamic and Indonesian Law Perspective

The phenomenon of inter-religious marriage is problematic, controversial, and resulted debate among Muslim and non-Muslim relationship in Indonesia. It also not only becomes the social conflict among Muslim and non-Muslim couples, but also pro and contra among the others such as family and society. In the classical Islamic marriage law discourse (fiqh al-munakahat), there are two kinds of inter-religious marriage, namely marriage between Muslim men with non-Muslim women and marriage between non-Muslim men with Muslim women. Some Muslim scholars said that Muslim men allowed marrying non-Muslim women and non-Muslim men prohibited marrying Muslim women, which the reason is based on the concept of polytheists and the group of experts (Kitabiyyah). In contrast, some Muslim scholars in Indonesia rejected inter-religious marriage based on the reason that it has been changed and regulated under Marriage Law Number 1 of 1974 and President Regulation Number 1 of 1991 on Islamic Law Compilation. One the one hand, the phenomenon of inter-religious marriage is an interesting phenomenon in the society and on the other hand it will become the legal implication to the inheritance and children care rights in Islamic and Indonesian law perspective. Therefore, the aim of this paper is to examine comprehensively about the legal status of inter-religious marriage in Islamic and Indonesian law perspective, including its legal implication to the inheritance and children care rights.


A. Introduction
During the recent times, the difference of religion is seen as one of the factors that inhibit a person get the inheritance from his or her parents. But that view seems to be abandoned, in which the court has made progressive rulings to protect the rights of individuals without discriminating ethnic, religious, racial, and other social status. But in the pluralistic culture of Indonesian society is found in one family and fellow siblings embracing a different citizenship, not to mention inter-religious marriage.
In the discourse of Islamic law, marriage and religion has very close and inseparable relationship. Almost all religions regulate marital matters, which basically always desire marriage among men and women in one or the same religion. This is understandable, because religion is the main and very important foundation in determining the success of one's household life. There is one of the doctrines of Islamic law which states that ideally legitimate marriages are based on religious similarities.
The expectation that every married couple wants is to live a household without being disturbed by religious beliefs. In practice, however, such harmony is often disrupted by the problem of dividing inheritance, in which religious differences become one of the obstacles to inheritance. According to the doctrine of Islamic law, one of the heirs of inheritance rights is religious difference. A child who professes a different religion outside the religious beliefs of his or her parent who is Muslim, then he will be prevented from obtaining the inheritance.
Moreover after the Marriage Law Number 1 of 1974 and President Regulation Number 1 of 1991 on Islamic Law Compilation, inter-religious marriage is not justified and illegitimate. Nevertheless, in reality there is still this marriage in the middle of a society that is conducted in private or openly by marrying it abroad and then returning to Indonesia and registering it in the Civil Registry Office as if the marriage is similar to a mixed marriage as referred to in Article 57 of the Marriage Law Number 1 of 1974. This is one of the interesting topics for us to examine comprehensively the legal status of inter-religious marriage in Indonesian and Islamic law perspective.

B. Literature Review on Inter-Religious Marriage
The essence of marriage in Islamic law is as worship and to build a lasting family bond (mitsaqan ghalidha) filled with rays of peace (sakinah), mutual love (mawaddah), and mutual affection (warrahmah). Therefore, a family of lawful descendants is one of the efforts to continue the baton of relay (its existence on earth) throughout the ages (Purwanto, 2008).
Inter-religious marriage or different religious marriage or also often referred to as inter-religious marriage is the marriage of two people who are different religions, beliefs or understandings (Slamet Abidin and Aminudin, 1999). Meanwhile, inter-religious marriage is determined as a marriage performed by people who embrace different religions and beliefs between one to each other. Inter-religious marriage contains a distinctly different meaning from the term mixed marriage in the Compilation of Islamic Law which means inter-citizenship marriage (Abdurrahman and Syahrani, 1978).
In another opinion it is also explained that inter-religious marriage is a bond of inner birth between a man and a woman of different religion as husband and wife in order to form a happy and eternal household based on the One Godhead (Eoh, 2000). The definition is also supported by other opinions that inter-religious marriage is a marriage of a man and woman of different religions that he holds by maintaining his own religion, even though his religion is the same purpose of worship but they have different in the implementation of religious ceremonies and beliefs (Hadikusuma, 1990).
Referring to the definition of marriage formulated in Article 1 of Marriage Law Number 1 of 1974, inter-religious marriage can be defined as the bond of inner birth between man and a woman, different religion, with two different rules regarding on the terms and procedures of marriage in accordance with their respective religious law with the aim of establishing a happy and eternal family based on the One Godhead (Rusli and Tama, 1986 Based on the description above, I can say that the notion of interreligious marriage is essentially inherent with the same concept between one and another opinion. So the term of inter-religious marriage is a marriage that is held between a man who is Muslim with a woman who is non-Muslim or vice versa , with two different rules regarding on terms and procedures of implementation that must be in accordance with law of their respective faiths with the aim of forming a happy family.

C. Method
This research uses historical-normative method and bibliography approach. These methods and approaches are used to explain the legal status of

D. Research Finding
Based on the background and literature review, I found that there is the number of different opinions among Muslim scholars on the legal status of inter-religious marriage in Islamic and Indonesia Law perspective.

Inter-Religious Marriage in Islamic Law
In general, inter-religious marriage in Islam can be divided into two parts, namely marriage between Muslim men with non-Muslim women and marriage between non-Muslim men with Muslim women. Before discussing about the legal status of its marriage, we need to know about the notion of non-Muslims in Islam. Non-Muslim group itself can be divided into two, namely the polytheists and the group of experts (Kitabiyyah).
According to Sheikh Muhammad Ali al- Shubuni (1975), the polytheists are those who have dared to associate Allah with His creatures (worshipers of idols, idols or the like). As an example of this faction is in the days before the advent of Islam it was mentioned that the Magi who worshiped the fire or the sun and those who worshiped idols, idols or the like. While the People of the Book (Kitabiyyah) are those who hold fast to the Book of the Law revealed to Prophet Musa a.s. or those who cling to the Gospels revealed to the Prophet Jesus a.s. or many who call it a divine or religious religion derived directly from the sky like the Jews and Christians (Yoeseof, 2018). Then, according to Syamsul Zacharias, the scribe is one who embraces one of the celestial religions given the Torah, the Gospel and the Zabur (Zakaria, 2011).

a. Marriage between Muslim Men with Non-Muslim Women
Inter-religious marriage can be interpreted as marriage between a Muslim man and a non-Muslim woman whether ahl al-kitab or a mushrik.
The Muslim Scholars tend to differ on the so-called polytheists and ahl alkitab. In this case, I will discuss the legal status of inter-religious marriage in the opinion of some scholars of jurisprudence such as Imam Abu Hanifa, Imam Malik, Imam Syafi'i, and Imam Ahmad bin Hambal.
First, according to Iman Abu Hanifah, the marriage between Muslim man and his legal polytheist is absolutely forbidden, but to marry the woman of the ahl al-kitab (Jews and Christians), even though the ahl alkitab believes in trinity, because according to them the most important is that the ahl al-kitab has the temple of heaven. According to Iman Abu

Hanifa, what is meant by the ahl al-kitab is anyone who believes in a
Prophet and a book ever revealed by Allah SWT, including those who believe in Prophet Ibrahim and Suhufnya and those who believe in the prophet Moses and his book of Zabur, the woman may be married.
Second, according to Imam Maliki, the legal status of inter-religious marriage has two opinions: firstly, married with kitabiyah law makruh absolute both dzimmiyah and harbiyah, but makruh married woman harbiyah bigger. In specific word, the term of dzimmiyah here means the non-Muslim women who stay and living in Islamic region or living in a country under the implementation of Islamic law. However, if it is feared that this wicked wife will affect her children and leave his father's religion, then the law is haram. So the punishment makruh or haram is based on how strong the influence of the wife against efforts to influence his son to leave his father's religion. Secondly, no absolute makruh because verses of the Quran surah al-Maidah verse 5 does not prohibit marriage between Muslim men and women kitabiyah absolutely.
Third, according to Imam Shafi'i may have married the ahl al-kitab woman and which belongs to the ahl al-kitab women. According to Imam Shafi'i, they are Jewish and Christians women who descendants of the people of Israel (Israelites) and not including other nations, even including Jews and Christians. The reason put forward by Imam Shafi'i is that the Prophet of Moses and Isa were only sent to the Israelites, and not other nations. In addition, the term of min qoblikum (people before you) in the Quran Surah al-Maidah verse 5 shows to two groups of Jews and Christians.
Nevertheless, although Imam Shafi'i belongs to the cleric who permits a Muslim man to marry the woman of the People of the Book but on condition (taqyiid), that woman of ahl al-kitab is to be the female of the Children of Israel. If he is not a Bani Israel woman, for example an Arab woman but a Jews or a Christians, then she do not belong to the people of ahl al-kitab so it is unlawful for Muslim men to marry her (Baihaqy, 1975).
Furthermore, the fourth, according to Imam Ahmad bin Hanbali, on different religions between Muslim men and non-Muslim women, prohibits marrying non-Muslim women of polytheists, and they may marry non-Muslim women of the female class kitabiyah in this case are Jewish and Christian women. This opinion is much supporting the opinion of the teacher (Imam Shafi'i). But it is not restricting those who belong to the ahl al-kitab are the Jews and Christians of the Israelites only, but declare that women who adhered to the Jews and Christians women since the time of the Prophet Muhammad have not been sent to be Apostles. In other word, according to the four Muslim scholars such as Imam Abu Hanifa, Imam Malik, Imam Shafi"i, and Imam Ahmad bin Hanbal, they have agreed on the possibility of a Muslim man marrying non-Muslim women of the people of ahl al-kitab (kitabiyyah), ie Jewish and Christian women.

b. Marriage between Non-Muslim Man with Muslim Women
The scholars have explained that Muslim women should not

Inter-Religious Marriage in Indonesian Law
According to the Article of Indonesia  (Mulyadi, 2008).
Similarly, in terms of inheritance rights, according to Islamic teachings, one of the heirs of inheritance rights is a religious distinction. It can be said that a child who professes another religion outside, even though in the view of Christianity, and religious differences do not preclude the right of inheritance. If the child is immature then he follows the religion of his parents. If the child is Christian, then he will follow the prevailing civil law so that the child remains entitled to inheritance.

D. Discussion and Research Result
The first consequence of the legal implication of inter-religious marriage is to the guardianship of children rights. In the munakahat jurisprudence, the term guardianship of the child is closely related to the custody of the child (hadhanah does not inherit the believer from an unbeliever, vice versa (Farza, 2018). There are two terms of cumulative and one additional requirement of a person who has the right to be a part of his property, as contained in the provisions of Article 194 paragraph (1) of the Islamic Law Compilation, which stipulates that a person who is at least 21 years of age, sensible and without coercion may mandate a portion his property to another person or institution. Based on Islamic Law Compilation regulation, the cumulative requirement of the willful person is at least 21 years of age and sensible, while the additional requirement of a person is "without coercion" (Ayu, 2018).
In plain view, the Islamic Law Compilation no longer uses measures that do not contain legal certainty to determine whether a person is competent or incompetent to perform legal acts, but uses an age limit of at least 21 years. This number is also used by the Indonesian Civil Code to determine whether a person is adults or not yet adults. Moreover, in order for a person to express his wasiat, he must be sensible. This requirement is logical and must be included; otherwise it will be difficult to know whether someone really wants to pass on his property or not, including someone should be considered healthy.
About the recipient will be known from In this context if it is true there is a judgment of the Supreme Court that grants inheritance to non-Muslim heirs. The Supreme Court Verdict is providing an opportunity for the giving of inheritance rights to the followers of different religions. However, if it returned to the original legal basis, it is clearly very contrary to the Sunnah and also prohibited in the Islamic Law Compilation. In such a judgment, the Supreme Court may have special consideration, although it is very weak because the provision of Article 171 of President Regulation Number 1 of 1991 on Islamic Law Compilation is very clear that the heirs should be Muslim.
As a reference, he also quoted the explanation of the Young Chairman of the Religious Courts at the Indonesia Supreme Court, Andi Syamsu Alam, who stated that the Supreme Court now implements contemporary Islamic law. If the religious parent is different with the children, it must be considered to leave the will called the wasiat wajibah. The consideration of the mandatory will be based largely on customary and maslahat al-mursalah considerations to meet the economic and future rights of religious heirs. And now, the term mandate is defined as such and it has become jurisprudence which the wasiat wajibah may be given to the heris but it may not more than 1/3 of the property. It means that Islamic law in Indonesia is compatible to protect the rights of children in the family, society, and state in accordance with the principles of maqashid al-sharia (Anshory, 2006).
The concept of maqashid al-sharia refers to the most popular opinion of Muslim thinkers, Imam al-Syatibi, who has defined the signs to achieve the objectives of the sharia or maqashid al-sharia, i.e. primary (dharuriyyah), secondary (hajjiyyah), and tertiary (tahsiniyyah) -which contains the five objectives of Islamic law namely: (a) maintaining the religion or hifzh aldin; (b) maintaining the soul or hifzh al-nafs; (c) maintaining offspring or hifzh al-nasl: (d) maintaining the mind or hifzh al-aql; and (e) maintaining property or hifzh al-maal (Al-Syatiby, 1975). This is also similar with the ulama ushul fiqh perspective who stated that each law is contained a goodness for servants of Allah SWT both the benefit is worldly and ukhrawi (Editor, 1996). Therefore, the ulama mujtahid concluded that the problem solving of the law cases must be based on the goals of law enforcement in the line of maqashid al-sharia, and also must be set in accordance with the benefit of mankind (mashlahah al-mursalah) and relevant with universal principle of human rights.