scholarly journals Matrimonial property and legality of claiming it between fiqh and the laws of Malaysia, Morocco and Tunisia

2021 ◽  
Vol 5 (S4) ◽  
pp. 2211-2218
Mohamed Shafei Moftah Bosheya

One of the most important goals of the marital relationship is the affection and compassion that drive spouses to cooperate together in earning their livelihood. When the marital relationship breaks down, each of the spouses would claim his/her share of the matrimonial property; such claim is different from the stipulated legal dues such as the inheritance and the alimony. The question is, what is the definition of the matrimonial property? Does this concept exist in the old Islamic jurisprudence? Is it legal to claim this money by one of the spouses or their heirs? And to what extent is the interest achieved or hardship avoided if the claimant is given his/her share? What is the position of the Malaysian Judiciary and its legal text on that issue? What is the stand of the official fatwa departments on this issue? What are the types of legal evidence cited by the different fatwas related to the matrimonial property? Moreover, are there countries other than Malaysia that have adopted this system?

2021 ◽  
Vol 24 (2) ◽  
pp. 350-370
Mohamed Shafei Moftah Bosheya

Islam guaranteed marital life with great security and care, surrounded it with great concern for the sake of preserving it and made one of its most important goals of affection and compassion that send reassurance and fruitful cooperation between the spouses, so that each of them helps the other in earnings and sources of livelihood. If the marital relationship between them broke down, each of them will sought to demand the other for his/her share of this joint fortune away from stipulated legal dues such as inheritance and alimony. The question is, what is the definition of this money? Does it exist in the old Islamic jurisprudence? What is the legitimacy of the claim of this money by one of the spouses or their heirs in these cases? And to what extent is the interest achieved or hardship avoided by him/her in obtaining what she/he is demanding? What is the attitude of the Malaysian Judiciary and its legal text on that issue? What is the stand of the official fatwa departments on this issue? What are the legal evidences on which these are based in determining whether it is due or rejected based on fatwa?  Are there other countries have adopted this system other than Malaysia?  This research is focusing on this contemporary issue, addressing it in the light of the laws of three countries, namely Malaysia, Morocco and Tunisia as the latter two have agreed on this principle and work in this system, and according to three trends in Malaysian society as the research such as: jurisprudence, fatwa dan judiciary.  This research proceeds with descriptive methodology in inference of terms of jurisprudence and analysis of position of Malaysian law with reference to the sources adopted in every jurisprudential art and commitment to scientific and technical controls adopted in scientific research.

2021 ◽  
Vol 59 (1) ◽  
pp. 1-32
Moh Khasan

The issue of the escalation of crime, which is increasingly varied and is getting heavier, is becoming a global concern. The development and progress of the world seems to have contributed to changes in the type and quality of crime, not only in the form and method, but also in the damage it causes. Crime trends increasingly point to collective crimes, systematic crimes, and crimes with extensive and massive excess damage. This article intends to criticize the systematic change (evolution) that has occurred in the concept of ḥirābah crime in Islamic law from a classical to contemporary perspective. The qualitative analysis of this article is focused on three fundamental issues, namely; ḥirābah interpretation, ḥirābah liability, and ḥirābah punishment. The author reveals in the conclusion that; first, based on its elements and characteristics, the definition of ḥirābah can be expanded to include new types of crimes such as; terrorism, rape, and drug trafficking and smuggling. Second, it is necessary to reconstruct the ḥirābah responsibility theory into a formulation that considers the principle of legal certainty and the principle of equality before the law. The reconstruction model, among others, is the affirmation that all people who involve themselves in the crime are perpetrators of ḥirābah (with an ishtirāk approach). Likewise, reconstruction efforts are needed to enforce equality of accountability between male and female actors. Third, as a serious crime, ḥirābah deserves a severe punishment and has a strong deterrent effect, as offered by Islamic law. However, the opportunity to give dispensation to the punishment will always be open if the perpetrator can prove his seriousness in repenting.[Eskalasi kriminalitas yang semakin beragam dan berat telah menjadi perhatian global saat ini. Pembangunan dan kemajuan dunia berkontribusi pada perubahan pola dan tingkat kriminalitas, tidak hanya bentuk dan cara, tetapi juga akibat yang ditimbulkan. Trend kriminalitas bertambah mulai dari yang berkelompok, sistematis, hingga yang kerusakannya masif dan pengaruhnya panjang. Tulisan ini mengkritisi perubahan sistematis pada konsep kriminal (ḥirābah) dalam hukum Islam dari pendekatan klasik hingga kontemporer. Analisis kualitatif dalam tulisan ini fokus pada tiga hal mendasar yaitu penafsiran, arah kecenderungan dan hukuman. Kesimpulan pertama tulisan ini adalah definisi kriminal berdasarkan unsur dan karakternya yang dapat meluas maknanya termasuk terorisme, pemerkosaan, narkoba, dan penyelundupan. Kedua, perlu rekonstruksi baru teori kriminalitas yang mempertimbangkan kepastian hukum dan kesetaraan hak dimuka hukum. Ketiga, sebagai kejahatan serius, ḥirābah pantas mendapat hukuman berat dan mempunyai efek pencegahan yang kuat seperti halnya dalam hukum Islam. Meski demikian, ada peluang dispensasi hukuman jika pelaku dapat menunjukkan kesungguhan untuk bertobat.]

2021 ◽  
Vol 5 (S4) ◽  
pp. 2161-2167
Khobaib Ali Saeed Salem ◽  
Salah Mohamed Moustafa Moustafa Elbahrawi ◽  
Ragab Abou Melih Mohamed Soliman ◽  
Ahmed Fathi Ramdan Abdelgayed

This research study addresses the perspective of Islamic jurisprudence on the right established for a wife in her husband’s property that is disputed by them both, especially after termination of their marital relationship. The research problem lies in that many women, upon their separation from their husbands, believe that their husbands’ financial welfare was only a result of their own assistance in undertaking marital responsibilities. This research study attempts to answer the question raised in such cases: What are the rights established for women against their husband in case they claim so?. The study seeks to highlight the objectives of the Shar?‘?h behind marriage and legalization of divorce, and to illustrate the established as a woman’s right in her husband’s property which she should have shared with him or substituted him in managing, through different considerations. The significance of the study lies in the emergent need for investigating it due to contemporary occurrences. This study builds on a descriptive and deductive comparative approach, along with a referential and applied method based on the juristic maxims and Shar?‘?h objectives, drawing only on preponderant legal opinions; outweighed views and their proofs are not mentioned in this study.

ICR Journal ◽  
2011 ◽  
Vol 3 (1) ◽  
pp. 154-180
Mohammad Omar Farooq

Analogical reasoning (qiyas) is one of the four sources of Islamic jurisprudence. It is recognised that the outcomes of qiyas are generally speculative in nature. However, a vast portion of the corpus of Islamic law is derived based on qiyas. One such area is marital relationship and mutual rights of the spouses. In several areas of marital relationship and mutual rights, the Islamic jurisprudents have applied concepts and tools that are related to commerce or business (tijarah). Such terminologies include bay’ (exchange/buy/sale) and ijarah (lease). This article examines such employment of business-related framework in the area of marital relationship and mutual rights. Based on both classical and post-classical legal sources, the author analyses the legalistic tendency underlying the legacy of the traditional Islamic law, as exemplified in using business-related framework in an overreaching manner. This article also offers an explanation of how the traditional Islamic view on slavery might be closely connected to this commodified view. Furthermore, it sheds light on how such commodification can impact on family as a central social institution.

2021 ◽  
Abdulhamid Alawaq

One of the methods that the authority uses to empty the constitutional text of its content and prevent it from achieving its goal is its resort to the two phenomena of “constitutional inflation” in sites that the nation does not need, and “constitutional failure” in sites that are expected from the text to protect public rights and freedoms or prevent an authority from overpowering the rest of the authorities. This is how the authority did in the Syrian constitution of 2012. It resorted to both phenomena together to achieve its goal of using the constitution as a tool and not as a control of the authority’s work. If legislative inflation is clear to legal jurisprudence, constitutional inflation is shrouded in ambiguity, so it resorted to a procedural definition of the research paper and considered every constitutional rule that does not bear the status of binding as a type of inflation. then I applied this definition to the general principles contained in the Syrian constitution in 32 articles, unlike democratic constitutions, which are shortened to articles regulating the general principles of the state. It became clear to me that only five articles are binding and the rest are non-binding guiding articles that are not suitable for reliance on judicial review. I have studied the rule (Islamic jurisprudence is a major source of legislation) in Syria and Egypt, and it has become clear to me that the authority intends to put it into place as a kind of distraction from paying attention to the rest of the constitution’s rules regulating public liberties and powers, even though the constitutional doctrine considers them to be non-binding. The struggle between the components of the people is still going on when drafting any constitution on general principles, most of which do not carry legal value.

2018 ◽  
Vol 32 (4) ◽  
pp. 531-546
Iyad Mohammad Jadalhaq

Abstract The United Arab Emirates (UAE) legislator has regulated gross fraud in the Civil Code, which derives its provisions from the Hanafi school of Islamic jurisprudence. A penalty was adapted so that when gross fraud has an impact on a contract, the defrauded contracting party can terminate the contract in question. The legislation also regulates slight fraud, but only in two very specific cases. This article aims at determining the accuracy of Article 189 that regulates slight fraud, and then identifies its shortcomings by analysing the cases in which slight fraud affects a contract. It concludes that this text is inaccurate, and suggests the UAE legislator amend Article 189. In addition, we suggest a new definition of terminal illness.

1990 ◽  
Vol 11 (1) ◽  
pp. 4-35 ◽  

We live in a society in which the roles of the individual tend to be both specialized and compartmentalized. Because of the fragmentation of one's relationships it is difficult for an individual to establish a clear identity and to demonstrate to others, and thus oneself, that one is a person of worth. Marriage is a very private relationship and couples are able to develop a social system with its own nomic structure that reflects their attributes and interests. It is a place where one's roles are brought together and decisions are made with regard to how one will perform those roles. An individual's investment in the marital relationship as indicated by time and resources is substantial. It is also an intimate relationship with a high level of emotional involvement and substantial rights and obligations. The primary interaction provided by the marital relationship is thus particularly well suited to the development of a clear definition of the individual's self and worth. Because of these attributes, marriage tends to be strongly related to the well-being of individuals. However, these attributes also often cause conflict and anger in the marital relationship. The benefits of marriage are strongly related to the fact that marriage is a very private relationship. However, because the marital relationship is very personal and private, it tends to be unstable and this instability undercuts many of the benefits derived from marriage. The privacy of marriage also makes effective societal intervention to achieve societal goals particularly difficult.

Nur Shabrina Sinulingga

The Criminal Code (KUHP) which is currently in force in Indonesia is a legacy that is still inherited from the Netherlands, so some of the contents of the Article are still incompatible with the culture that developed in Indonesia. One example of the definition of adultery in the Criminal Code is a marital relationship which is committed by a party that one or both are still bound in marriage. Of course this is very contrary to the culture that exists in Indonesia with a majority Muslim population. Indonesian legal experts have drafted the new Criminal Code since 50 (fifty) years ago, then after waiting all the time, finally in 2019, there is a strong discourse that the DPR (House of Representatives) will ratify the new Criminal Code. One of the revised articles in the RKUHP (draft of the Criminal Code) is this adultery article. However, this Article is one that is also a matter of controversy and much opposition.The old KUHP rules especially those relating to adultery are not in accordance with the culture that exists in Indonesia, so that frequently the act of adultery that actually disturbs the public cannot be tried as expected, but in the current development there are also many parties who consider the notion of adultery in the new KUHP too in entering into the private affairs of the Indonesian people they assume the State should not enter into a very private section.The legal basis that can be done is a legal basis that is in accordance with that contained in the Criminal  Code Keywords: Criminal Code, Adultery 

2019 ◽  
Vol 4 (2) ◽  
pp. 117-136
Rohmansyah Rohmansyah

When viewed from the aspect of the definition of the jilbāb (long, loose-fit outer garment worn by some Muslim women), the issue of jilbāb is a social-religious problem that is often used as a material for discussion among experts of fiqh (Islamic jurisprudence) and tafsir (exegesis, interpretation), both classic and contemporary. This research focuses on the interpretation of the jilbāb in the Quran Surah al-Aḥzab verse 59 based on the view of al-Tabari. The researcher conducts a critical study of his thoughts by using the library research method and the sociological-historical approach. The findings proved that al-Tabari was a very careful person in interpreting the Quran based on the hadith (the record of the words, actions, and the silent approval of the Islamic prophet Muhammad) and the atsar (the words or actions) of the sahabah (the companions of the prophet). The jilbāb, according to him, was something that covered the head, face, and one of the eyes (the left one). Such interpretation of al-Tabari certainly cannot be separated from the aspects of socio-historical phenomena that occurred in the past where the Abbasid Caliphate’s seizure of territory took place to have implications for human freedom, especially for women. Such a condition of insecurity for a woman that made al-Ṭabari interpreted jilbāb as such in order to protect women. However, if the definition of jilbāb is contextualized today, then it is no longer relevant because the conditions are safe, and women are free to fulfill their needs. Still, a woman must maintain her honor and cover her aurat (intimate parts in Islam), except for something that can be seen which are the palm of the hands, and the face.

Hussain Ahmed Alawi Ba Omar

This article discusses an important jurisprudential issue related to one of the sources of reasoning by Imām Al-Shāfi’ī, especially in his book (Al-umm), which is the opinions of (Saḥābah) the Companion. This article collects all the clear texts that are directly related to the companion's opinion in each book (Al-umm), and mentions the jurisprudential events that were mentioned because of them. It aims, therefore, to prove that Imām Al-Shāfi’ī considered the statement of the Companion to be one of the sources of legislation in Islamic jurisprudence, and that it comes after the Qur'ān and Sunnah and before Qiyās. This article also explains - inference from the texts of Al-Shāfi’ī - the different cases of the companions saying, such as the state of the companions ’consensus and their difference, and the criteria for weighting between the opinions of the companions of jurisprudence in the case of their difference. In the end, the article concludes that Al-Shāfi'ī considered the statement of the Companion as a legal evidence in itself, and that it is part of the Prophet’s Sunnah, and that the difference of the Companions does not preclude taking some of their sayings. This result is different with the well-known from Shāfi'ī's sayings in the books of Fundamentals of Jurisprudence that were written after him, even books written by jurists belonging to the Shāfi’ī school of thought. The article relies on the method of extrapolating all texts in the book (Al-umm) in order for the result to be an unquestionable affirmation, and for it to be a reference for all texts related to the subject in this book.

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