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The parties were married on 26 May 2012. They had lived together in the village of Ambokembang, Kedunwuni, Pekalongan for three years and ten months, but had no children. Pursuant to art 171(h) of the Compilation of Islamic Laws, the parties sought to adopt a 40-day old child whose parents, due to their own financial hardship, were unable to provide for their child.

On the facts, and in accordance with Islamic law as it applies in Indonesia, the court acceded to the parties' application for adoption. The court stipulated that between the parties and their adopted child now existed a legal relationship of compulsory inheritance (wasiat wajibah), whereby the child would inherit one-third of his/her adoptive parents' estate, and vice versa, pursuant to art 209 of the Compilation of Islamic Laws.

In November 2021, the UAE government issued a new personal status law from Sheikh Khalifa bin Zayed al-Nahayan, president of the UAE federation of seven emirates, titled Law No. 14 of 2021 Concerning the Personal Status of Non-Foreigners Muslims in the Emirate of Abu Dhabi. The law covers civil marriage, divorce, alimony, joint child custody, proof of paternity, and inheritance. Most notably, this new law allows for civil marriage, not just marriage under Islamic law. It allows expats, tourists, and non-residents to marry in Abu Dhabi and allows foreigners to follow their home countries’ laws on matters of inheritance and divorce.

The appellant sought to challenge the decision of the Takengon Shari'a Court insofar as it distributed the assets of the deceased.

The Court overturned the decision of the lower court and readjudicated the distribution of the assets subject of the will. Particularly, the Court found that the distribution of a coffee plantation (one of the assets) was not based on a mutual agreement or applicable law, meaning parties entitled to it were deprived of their inheritance.

The appellants sought to challenge the decision of the Meureudu Shari'a Court (lower court), which had dismissed their inheritance claim in its entirety.

The Court acknowledged the appellants' objection that the lower court had only considered one witness' information (a witness produced by the respondents), but reconciled this by noting that that witness' information and one of the appellants' confessions had been corroborated by other evidence. This aside, the Court affirmed the decision of the lower court.

A baby produced through medical intervention by the sperm and egg of duly wedded couples (without involving a third party) is permissible under Islamic law. However, surrogacy is not allowed because marriage is the only means through which children should be produced under Islamic law. Surrogacy is likely to give rise to innumerable legal problems regarding paternity and maternity of the surrogate children, the relationship between actual children and surrogate children, and inheritance rights.

The appellants sought to challenge the decision of the Bireuen Shari'a Court, which had rejected their inheritance claim in full and ordered them to pay costs.

The Court concurred with the lower court that the appellants' original claim was legally flawed and, accordingly, unclear. While the Court said this per se was grounds for dismissal, the lower court had adjudicated the appellants' claim regardless. As the lower court arrived at the same conclusion, the Court felt there was no need to render the lower court's decision null and void.

The Compilation of Islamic Laws (Kompilasi Hukum Islam) is the Republic of Indonesia's own state-sanctioned compilation of Islamic laws on marriage, inheritance and charitable foundations (wakaf). Established pursuant to Presidential Instruction No. 1 of 1991, it was compiled within the two authoritative symbols of Soeharto's New Order: the Pancasila and 1945 Constitution. Kompilasi Hukum Islam was intended to be treated as a set of guidelines, rather than an enforceable statute, its intended effect being to make matters of Islamic law become matters of the state.

University of Kansas School of Law

Examines the history, doctrine, texts, and role of Islamic law throughout the world. The course focuses on the background and birth of the Arab-Islamic Empire, the life and times of the Prophet Muhammad, the development of Islam, the Moghul and Ottoman Empires, the Qurʾān and Sunna and other sacred texts, the principal schools of Islamic law, the status of women and religious minorities, and basic principles of some of the substantive areas of law, including criminal, family, inheritance, contract, business, and banking law.

This is a reference to Ṣaḥīfat al-farāʾiḍ, a text on the designated shares of inheritance recorded by ʿAlī from the statements of the Prophet, which Jaʿfar al-Ṣādiq possessed and showed to his disciples. Hossein Modarressi cites this reference to argue that ʿAlī was "the father" of the legal legacy of the Family of the Prophet and that the Prophet's teachings were passed down through the family from one generation to the next.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

The appellants sought to challenge the decision of the Sigli Shari'a Court, which divided the assets of the two decased between the beneficiaries.

The Court upheld the appeal on the grounds that the original decision contravened art 185(2) of the Compilation of Islamic Laws insofar as it excessively granted rights to two successors of beneficiaries. The Court stated that the purpose of a successor of a beneficiary is to ensure a beneficiary's children are not neglected when assets are distributed.

The Court stipulated 14 beneficiaries, but ensured the four biological children of the deceased inherited two-thirds of the estate, with the remaining third of the estate being distributed among the relevant grandchildren of the deceased.

The deceased passed away in 1999, stipulating his wife (second appellant) and son (first respondent) as his beneficiaries. He bequeathed them a house attached to some land, as well as seven other separate parcels of land. The Jantho Shari'a Court (lower court) granted the beneficiaries their inheritance, subject to a bequest of the deceased to gift one-third of his estate to his step-son (first appellant). Accordingly, the lower court granted the first appellant 1890m-squared of land, the second appellant one-quarter of the land (945m²), and the first respondent 2835m², but also declared the bequest executed by the deceased to be unlawful.

The Court overturned the lower court's declaration regarding the bequest, declaring it lawful and noting that anything the appellant received in excess of that one-third was to be returned to the beneficiaries. The Court also determined that the second respondent was also a legitimate beneficiary (as the deceased's other biological son) and entitled to one-third of the aforementioned parcels of land.

A bin H (deceased) married F binti A (second appellant) in 1974, after his first wife (A binti I) had passed away. The question before the Court was whether or not the property subject of the will was the joint property of the deceased and second appellant, or just that of the deceased. If it had been acquired while the deceased and second appellant were married, art 35 of Law No. 1 of 1974 on Marriage, in conjunction with art 85 of the Compilation of Islamic Laws, dictated that it was their joint property, which had obvious consequences in terms of how it was distributed among the deceased's beneficiaries.

In overturning the decision of the Calang Shari'a Court (lower court), the Court found that certain portions of some of the parcels of land in dispute were the sole property of the deceased, while others were the joint property of the deceased and second appellant. The deceased's sole property was to be divided between his 10 beneficiaries (two wives and eight children), while the joint property of the second appellant and the deceased was to be divided 50/50 between the second appellant and the deceased. The inheritance of A binti I and M binti A bin H (one of the deceased's daughters, also deceased) was to be distributed among the surviving beneficiaries.

Sujak and Nuryani were married on 3 August 1982 and had two children (Tugik Dini Rike Nur Anggrainingsih (23) and Almaiciko Bawita Firnanda (13)). They also owned a property they had purchased with Nuryani's inheritance and Sujak's pension funds. The property had been placed in the name of their first child, Tugik, but was tenanted by Nuryani's mother (Wartini) and another family member (Rumini). On 5 February 2005, Nuryani passed away due to illness. On 12 February 2012, Nuryani's father, Joyo Suwito, passed away, also due to illness. On 23 December 2014, Tugik relocated to East Kalimantan with her husband. Then, on 8 December 2015, Sujak passed away. Since Sujak's passing, Almaiciko had been cared for by her uncle (Nuryani's younger brother), the applicant (Mutaal). As Almaiciko was still under the legal age of consent, the applicant sought from the court a stipulation that he was Almaiciko's legal guardian.

The court acceded to the application for guardianship, pursuant to arts 50(1) and 51(2) of Law No. 1 of 1974 on Marriage, in conjunction with art 107(4) of the Compilation of Islamic Laws, on the grounds that Almaiciko was under the age of consent (and not yet married) and that the applicant was a family member and, therefore, a legitimate applicant for guardianship.

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.

On 1 August 1988, the applicants were married. While they had no children of their own, they had raised and cared for a child named Muh. Ilham, now aged 21 years. Muh. Ilham's parents had given him to the applicants to care for because they had two other children for whom providing financially was already a struggle (at the time Muh. Ilham's father was unemployed, only working as a farmer). The applicants had been prepared to raise Muh. Ilham as their own and were able to bear the costs associated with caring for and educating Muh. Ilham because the first applicant had a steady salary with the Indonesian National Military's ground forces (Tenaga Nasional Indonesia - Angkatan Darat). The applicants requested that they be stipulated as Muh. Ilham's legal adoptive parents.

The court cited art 171(h) of the Compilation of Islamic Laws, which states that an adopted child is a child for whom the responsibility to cover their educational costs and the like is transferred from their biological parents to their adoptive parents, pursuant to a court judgment. Moreover, pursuant to art 49(1) of Law No. 7 of 1989, for the sake of legal certainty, an adoption based on Islamic law requires a religious court determination.

The court found that, pursuant to Islamic legal provisions, child adoption is legal if the following conditions are met:

1. the child's welfare is prioritised;
2. the child's educational expenses and the like are covered, per art 171(h) of the Compilation of Islamic Laws;
3. the child's adoption does not sever the bloodline between the child and his/her parents;
4. the child's adoption does not result in the child being deemed to share bloodline, inheritance or any other legal relationship with his/her adoptive parents, except for the responsibilities mentioned above in point 2;
5. the child is to inherit one-third of their parents' estate, pursuant to art 209 of the Compilation of Islamic Laws;
6. the child's adoption requires an agreement between the adoptive parents and the representative or person/legal entity facilitating the adoption;
7. the adoption must adhere to current laws vis-a-vis the prospective adoptive parents;
8. the adoption must adhere to current laws for the sake of the child;
9. the adoption of a Muslim child is to adhere to the fatwa of the Indonesian Council of Ulama, No: U-335/MUI 182 of 10 June 1982; and
10. in the interests of legal certainty, child adoption, pursuant to Islamic law and art 171(h) of the Compilation of Islamic Laws, be ratified by a religious court decision.

Acceding to the applicants' request, the court acknowledged that, even though Muh. Ilham was 21 years of age and adoption was no longer appropriate, the history and nature of the applicants' relationship with Muh. Ilham was such that he could be declared their adopted child.

The plaintiff married her husband on 31 December 1945, upon which her husband gave her a 20-acre plot of land as a dowry (mahar). The plot of land had been controlled by the plaintiff's husband's younger sibling since 1983 until the present. When the plaintiff's husband passed away, her mother-in-law asked to use the land until she passed away herself. When her mother-in-law passed away, the plaintiff requested of the defendant that the land be returned to her, but the defendant refused to do so. The plaintiff had also sought to resolve this dispute in a familial manner through deliberation and by making polite requests, but the defendant had not responded in a favourable manner himself, compelling the plaintiff to instigate proceedings.

In response to the plaintiff's claim, the defendant submitted that, when the plaintiff married her husband, the defendant himself was not yet an adult and, therefore, could not have known that the land constituted the plaintiff's dowry. Moreover, that he had sold the land in order that he have some money when he married his wife. Two years later he re-purchased the land, but he did not want to return it to the plaintiff because he believed it to be his inheritance from his parents. The plaintiff asserted that, as the land the defendant believed to have previously belonged to his parents was 35 acres, and the dowry land was 20 acres, only 15 of those acres actually belonged to the defendant.

The court found that the evidence submitted by the defendant did not support his case, whereas evidence submitted by the plaintiff showed that the 20 acres in question had indeed been given by the plaintiff's husband to the plaintiff as a dowry on the day of their marriage. Accordingly, the court ordered the defendant to transfer to the plaintiff the 20 acres of land.

This fatwa states that, in Islam, a child is born in a holy state, free from sin, even if born of adultery. The fatwa acknowledges Indonesian Constitutional Court Decision No. 46 of 2010 that granted children born out of wedlock the same status as that of children born of parents in wedlock.

The fatwa states, however, that a child born of adultery does not have a relationship with its father or father's family, but does with its mother and mother's family. The child does not bear the sin of its parents, who are to be punished (hadd) by the authorised parties. The government is authorised to hand down a ta'zir punishment to compel the male adulterer to cover the child's needs and provide the child with some form of inheritance in his will (wasiat wajibah). This ta'zir punishment is designed to afford the child some protection; not to legitimise the relationship between the father and child.

The fatwa also recommends that the People's Representative Assembly (Dewan Perwakilan Rakyat) and government legislate to ensure severe punishments for adultery as a deterrent, as well as to ensure that children born of adultery are afforded the necessary protections a father should provide his child. The fatwa requests that the government facilitate with ease the provision of birth certificates to children born of adultery, but not to legitimise the relationship between the father and child. The fatwa also obliges the government to educate society so as children born of adultery are not discriminated against, but are treated like any other child.

Abū Yūsuf (d. 182/798) records a statement attributed to the Caliph ʿUmar I (d. 23/644) on the legal standing of non-Muslims which considers "all of unbelief" to be a single community in contradistinction to the community of Muslim believers and concludes that “neither do we inherit from them, nor they from us.” In this respect, non-Muslim and Muslim communities operate under separate legal statuses. Abū Yūsuf also relates in the same text the noteworthy opinion of Ibrāhīm al-Nakhaʿī (d. 96/715), an Iraqi jurist and forebearer of the Hanafī school, regarding non-Muslim testimony.  Nakhaʿī opined that the verse of Q. 65:2 functioned to proscribe non-Muslim testimony and could be understood to abrogate the allowance of non-Muslim testimony in verse 5:106. Ibrāhīm’s opinion differed from that of Companion Abū Mūsā al-Ashʿarī (d. between 42/662 and 53/673), among others, who had relied on the Quranic verse 5:106 to specifically permit non-Muslims testimony to record the last will of a Muslim traveler who dies away from home. Ḥammād b. Salama (d. 167/784) distinguished all non-Muslims as one community discrete from Muslims in his argument that non-Muslims were permitted to testify against any other non-Muslims, regardless of confessional lines. Ahmed El Shamsy notes the legal premise of non-Muslims' and Muslims' separate legal status in Justice and Leadership in Early Islamic Courts.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.