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

1 Harahap, M. Yahya, SH., Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan. Jakarta: Sinar Grafika, 2005; cet II, p. 4962 Ibid3 Ibid, p. 4994 Mertokusumo, Sudikno Prof., DR., SH., Hukum Acara Perdata Indonesia,Yogyakarta: Liberty, 1988; cet III, p. 95 Ibid, p. 116 Supranote 1, p. 4997 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. 11And 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

8 UU No. 7 Tahun 1989, Kumpulan Peraturan Perundang-undangan Dalam Lingkungan Peradilan Agama. Jakarta: Al-Hikmah, 1993, p. 2999 Ibid10 Ibid, p. 30111 Syahlani, Hensyah, H., SH., Pembuktian Dalam Beracara Perdata & Teknis Penyusunan Putusan Pengadilan Tingkat Pertama. Jakarta: Grafgab Lestari, 2007, p. 112 Supranote 4, p. 613 Ibid14 S.E.M.A. No. 19 year 1964 and No. 3 year 196515 Supranote 4, p. 116

HIR, 284 Rbg, 1866 BW) are written evidence, presumption evidence, confession evidence,

and oath evidence.16

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

)رواه اب��وا ابغض الحالل عند الله عز و ج��ل ال���طالق

داود و ابن ماجه(

Halal (permissible action) that is the most hated by Allah ‘azza wa jalla is Talak

16 Supranote 1, p. 55617 UU No 1 year 1974, supranote 8, p. 141-14218 Ibid, p. 168-17519 Soemiyati, SH., Hukum Perkawinan Islam dan Undang-Undang Perkawinan (Undang-Undang No. 1 Tahun 1974, tentang Perkawinan). Yogyakarta: Liberty, p. 13020 Supranote 7, p. 21421 Ibid, p. 21522 Rahman I.Doi, Abdur, Inilah Syariah Islam, Jakarta: Pustaka Panji Mas, 1991, p. 241

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

و ان خفتم ش��قاق بينهم��ا ف��ابعثوا حكم��ا من اهل��ه و

حكما من اهلهآ إن يريدآ إصالحا يوفق الل��ه بينهم��ا إن الل��ه

(35كان عليما خبيرا )سورة النساء, اآلية

If you fear a breach between them twain (the man and his wife), appoint (two)

arbitrators, one from his family and the other from her’s; 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

و سئل رسول الله ص.م. عن رجل ق��ال: ي��وم ات��زوج

فالنة فهي طالق فقال: )طلق ما ال يملك(

23 Ibid24 Al-Quran Al-Kariim, The Noble Qur’an, translators: Dr. Muhammad Taql-ud-Din Al-Hilali, Ph.D and Dr. Muhammad Muhsin Khan, Riyadh: Darussalam25 Supranote 22, p. 24726 Ibid, p. 24927 Abbas, S. Ziyad, Pilihan Hadits Politik, Ekonomi, & Sosial, Jakarta: Pustaka Panjimas, 1991

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.”

سأله رسول الله ص.م. عبد فقال: ان موالتي زوجنتي

و تريد ان تفرق بينني و بين امراتي فحمد الله و اثنى عليه

و قال: )ما بال اقوام يزوجون عبدهم ام��اء هم ثم يري��دون

ان يفرقوا بينهم, اال انما يملك الطالق من اخذ بالساق(

Rasulullah SAW ever asked by servant, he said: “my ma’am 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 court’s 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

28 Supranote 7, p. 21529 Keluarga Muslim, PT. Bina Ilmu, Surabaya, translator: Ansyari Thayib, p. 29730 Supranote 7, p. 51

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

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 husband’s 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 Li’an.

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

31 Ibid32 Arto, Mukti H,A,M Drs., SH., Praktek Perkara Perdata Pada Pengadilan Agama, Yogyakarta: Pustaka Pelajar, 2000, p. 21433 Supranote 7, p. 21734 Omod, Mahmud, H., Drs., بإندونيسيا اإلسالمية األحكام Kompilasi – جمع Hukum Islam di Indonesia. 35 Supranote 32, p. 214-218

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

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 hakam’s 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

hakam’s consideration.

7. And for preventing falsehood and sly tricks against the law committed by

both parties in a conspiracy, although divorce’s 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 20-

36 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 ta’lik 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

36 Supranote 31, p. 21537 Supranote 32, p. 22438 Supranote 7, p. 23439 Supranote 32, p. 227

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 ta’lik talak. In the evidence

procedural, the judges have to prove:

1. The truth that the husband after Akad Nikah (Marriage

Agreement) has been asserted ta’lik talak promise;

2. The truth that the husband has breached his ta’lik 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 divorce’s 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

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 plaintiff’s parents.

Beside of it, the defendant often shouted with high intonation that breaking plaintiff’s

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

40 Supranote 31, p. 22841 Berkas Perkara Minutasi No. 534/PdtG./2009/PA. Wsb. Wahyuni v. Pranoto al. Ahmad Syarifudin

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

acutely dispute between husband and wife. Syiqaq has been regulated in Al-Qur’an Surah

An-Nisa 35, Allah SWT said:42

و ان خفتم شقاق بينهما فابعثوا حكما من اهله و حكما

من اهلهآ إن يريدآ إصالحا يوف��ق الل��ه بينهم��ا إن الل��ه ك��ان

(35عليما خبيرا )سورة النساء, اآلية

If you fear a breach between them twain (the man and his wife), appoint (two)

arbitrators, one from his family and the other from her’s; 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;

42 Supranote 2443 Supranote 32, p. 217-218

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;

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 hakam’s 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 hakam’s 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 plaintiff’s blood

mother, and another one is plaintiff’s 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 plaintiff’s 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 Qur’an Q.S Al Baqarah:

28246:

أيها الذين ءامنوا إذا ت��داينتم ب��دين إلى اج��ل مس��مىۤ�ٰي

فاكتبوه, وليكتب بينكم كاتب بالع��دل, وال ي��أب ك��اتب أن

يكتب كما علمه الله, فليكتب وليملل الذي عليه الح��ق و

(282اليتق الله ربه.....)سورة البقرة “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)

44 Drs. H. Anshoruddin, SH, MA, Hukum Pembuktian Menurut Hukum Acara Islam dan Hukum Positif, Jogjakarta: Pustaka Pelajar, 2004, p. 6345 Drs. Cik Hasan Bisri, MS, Peradilan Agama di Indonesia, Jakarta: RajaGrafindo Persada, 2003, p.25046 Supra note 44, p.64

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

Insane

In Islam, there is an obligation to give testimony, as express in Qur’an Q.S Al Baqarah:

28348:

...و ال تكتموا الشهدة, و من يكتمها فإن��ه ءاثم قلب��ه...

(283)سورة البقرة “…and conceal not the evidence, for he who hides it, surely his heart is sinful…(Al-

Baqarah 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.

47 Supra note 45, p. 25148 Supra note 44, p. 7549 Ibid, p. 75-76

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)

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.

50 Supra note 45, p. 252