SHARIAsource

This Supreme Court jurisprudence repudiates the direction of a high religious court (Pengadilan Tinggi Agama) to a religious court (Pengadilan Agama) that it initiate a proceeding in order to witness the appellant divorce the respondent. This is because the legality of such a proceeding would first depend on obtaining the permission of the appellant's superior work officer, as well as the opinions of Badan Penasehatan Pembinaan dan Pelestarian Perkawinan (the Marriage Counselling, Mentoring and Preservation Body) and the appellant's immediate family.

This Supreme Court jurisprudence states that a woman aged 24 years and widowed does not require the permission of her parents or guardian before she remarries.

This Supreme Court jurisprudence states that if a court is convinced that a marriage is irreparable, it is to deem both parties' hearts as being broken, as it were, and that the ongoing conflict requirement in art 19(f) of Government Regulation No. 9 of 1975 is, therefore, deemed as having been fulfilled.

This Supreme Court jurisprudence states that a high religious court (Pengadilan Tinggi Agama), while overturning the decision of a religious court (Pengadilan Agama), incorrectly applied the law because it failed to properly consider the exception submitted by the cassation respondent/original defendant, that the cassation applicant/original plaintiff was domiciled in Klaten. This was a relevant consideration given the relative authority of the court.

This Supreme Court jurisprudence states that divorce (talak) is articulated as 'Menyatakan jatuh talak satu ba'in sugro dari Tergugat atas Penggugat' ('to declare an irrevocable divorce from the defendant for the plaintiff').

This Supreme Court jurisprudence pertains to divorce and reasons for divorce. It states that the contents of art 19(f) of Government Regulation No. 9 of 1975 are met if, on the facts, a reason for divorce has been established. Therefore, there is no need to apportion blame to one of the parties to the divorce.

This Supreme Court jurisprudence states that divorce applications cannot be invalidated, per arts 142(1) and 147(1) of the Criminal Procedure Code for Regions Outside Java and Madrua (Reglemen Acara Hukum Untuk Daerah Luar Jawa dan Madura), where a person with power of attorney for one of the parties does not have power of attorney for the other party.

This ministerial regulation permits Islamic marriages to be solemnised by a non-related marriage guardian (wali nikah) in the event no male family member (wali nasab) is available to marry the prospective bride and bridegroom.

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.

In Danial Latifi, the Indian Supreme Court found that the 1986 Muslim Women (Protection of Rights on Divorce) Act requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his ex-wife for the rest of her life, but that he must pay this amount in total during the iddat period (three month post-divorce period).

This Supreme Court jurisprudence states that matters pertaining to the division of Muslims' joint assets (barang gono-gini) are included in the authority of the state courts.

This Supreme Court jurisprudence states that joint asset disputes, where the submission is that the assets in dispute have not been clearly articulated/identified, provided they have not been, and the considerations of the Menado High Religious Court are not comprehensive, the decision must be overturned.

The expansion of the authority of the Court of Religion in Aceh and the subsequent change of its name to Mahkamah Syar’iyah has created an overlap of jurisdiction in the processing of civil and criminal cases. This was due to the granting of the special province status for Aceh in 1999 which entails the right for Aceh to implement Islamic law in the region. Mahkamah Syar’iyah was then granted the authority to process both civil and criminal cases for Aceh’s Muslim citizens, a jurisdiction previously shared between the Indonesian General Courts (Peradilan Umum) and the Courts of Religion (Pengadilan Agama). 

The decision of the Chief Justice of the Indonesian Supreme Court signifies the relegation of authority previously held by the Indonesian General Court to Mahkamah Syar’iyah in Aceh.

The relegated authorities are as follow:

1. Muamalah (civil law) cases of Muslim citizens of Aceh regulated in Aceh Qanun
2. Jinayah (Islamic criminal law) cases regulated in Aceh Qanun

In Indonesia, the Islamic practice of polygamy is circumscribed by specific provisions in Law No.1 of 1974 on Marriage. Mohammad Insa was a Muslim man who wished to take a second wife without any state interference, and without due consideration for the rights and feelings of his established wife. He argued that polygamy is a religious duty, and one that he was entitled to undertake in accordance with the 1945 Constitution, which guarantees freedom of religion. He petitioned the court for a judicial review of those legal restrictions on polygamous marriages. This decision to dismiss his petition was handed down by the court on 3 October 2007, after several months of lengthy deliberations and media attention. The court reasoned that art 28J(2) of the Constitution not only authorises the state to regulate religion, but obliges it do so.

The Court altered the decision of the lower court insofar as it noted that the vehicle of the two deceased, while only a shell, still constituted part of the estate. It also noted that debts acquired while the deceased couple were married needed to be paid out.

The Court upheld the appeal on the grounds that the plaintiff/respondent had failed to include the children of S bin J (deceased) in the claim.

The applicant sought to impugn a gift executed by the deceased in 2002, one year prior to the deceased's passing in 2003. The court acceded to the application, rendering the bequest process null and void for the following reasons:

1. the deceased's health was in a critical condition at the time of making the bequest;
2. the consent of the plaintiff (as a benefactor) was lacking;
3. the deceased made no oral declaration (Ijab Kabul) at the time; and
4. the witnesses involved in the notary deed process were not family members, as required.

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 appellant sought to challenge the decision of the Langsa Shari'a Court in regards to its distribution of the estate of the deceased. The Court dismissed the appeal, however, finding no fault with the judgment and reasoning of the lower court.

The appellant sought to challenge the decision of the Banda Aceh Shari'a Court (lower court), which had dismissed his claim in its entirety in regards to a bequest made by the deceased. The appellant claimed the deceased had intended to make a bequest of a parcel of land to his daughter Zainab.

The Court found that the lower court was correct in its determination, noting that, based on the appellant's claim, the legal relationship between the appellant and respondents was unclear, and that the appellant had failed to involve the relevant beneficiaries and locate their whereabouts. Moreover, while the appellant had told the Court that the bequest was intended for Zainab, points two and three of his claim stated that the bequest was for Zainab, Fatimah and Ummi Kalsum. Accordingly, the appellant's claim failed due to lack of clarity (Obscur Libel).