The Human Rights and Women in the Context of Interfaith Marriage

and Inheritance: A Comparative Analysis of Family Law in Muslim

Countries

Nurul Adhha

Sekolah Pascasarjana UIN Syarif Hidayatullah, Street Kertamukti No5 West Pisangan Cireundeu Ciputat, Jakarta,

Indonesia

Keywords: Human rights, inheritance, interfaith marriage, women.

Abstract: This study aims to explain in comparative vertical, horizontal, and diagonal how family law in Turkey,

Somalia, Egypt , and Indonesia on interfaith marriages and inheritance move out from the fiqh scholars in

Islamic law with their legalization relationships with gender and human rights issues in these countries as

one of the significant factors affecting the changes of its family law. Descriptive method with qualitative

approach used to collect data by library research method. The focus of the analysis is the extent of civil law

in Turkey, Somalia, Egypt and Indonesia move out from the fiqh scholars in Islamic law regarding Interfaith

Marriage and Inheritance. The results of this study show Turkey, Somalia, and Indonesia are more moderate

countries in regulating interfaith marriage by making human rights and gender a subject that significantly

affects legal reform. While Turkey is more liberal in regulating the rules of interfaith marriage due to

secular ideology. Then Somalia, Egypt and Indonesia constitutionally did not pave the way for their people

to do interfaith marriage, although in reality women violence, and forced inter-clan marriage keeps

interfaith marriages between religions going on in Somalia, licensing through the dioceses permission also

loosening the rules in Egypt, as well as registering marriages abroad also became a middle ground for

Indonesians to legalize interfaith marriages.

1 INTRODUCTION

Interfaith marriages can be translated into several

meanings, (1) Muslim male marriage with infidel

women, (2) Muslim male marriage with polytheistic

women, (3) Muslim male marriage with atheist

women, (4) Muslim male marriage with apostate

women, (5) Muslim male marriages with book

recipients other than scriptural experts, (6) Muslim

male marriages with female scholars, (7) Muslim

woman marriage with infidel men, and (8) Muslim

woman marriage with communist men (Qardhawi,

1995). Jumhur Sunni clerics argued that the

marriage law was changed with several notes.

However, this mubah is also divided into two

absolute mubah and mubah which are circumcised if

the husband intends or intends to attract his wife to

Islam. Meanwhile some Sunni clerics also stated that

the law was makruh. In contrast to this, Shia

Imamiyah and Shia Ismailliyah scholars punished

the marriage with illicit status (ath-Thaba'thaba'i,

1985).

However Interfaith marriages in terms of

terminology are sometimes referred to as mixed

marriages. interfaith marriages cannot be compared

to mixed marriages. Because the second may be

more common, including marriage where the partner

is from a different race or ethnicity, different

nationalities are also different beliefs. So that the

mention of interfaith marriage is more appropriate to

be used as one of the discussions in this verse.

Furthermore, this paper divides the types of

interfaith marriages into two types. The first

category is marriage between Muslim men and non-

Muslim women. The second category is marriage

between Muslim women and non-Muslim men. The

second type based on fiqh is clear that the law is

haram. This first type of marriage can be categorized

into two types, (1) non-Muslim women are experts

in the book (2) non-Muslim women are not experts

in the book. Thus, the main problem in this verse is

how the law of civil law in four countries, Indonesia,

964

Adhha, N.

The Human Rights and Women in the Context of Interfaith Marriage and Inheritance: A Comparative Analysis of Family Law in Muslim Countries.

DOI: 10.5220/0009921109640971

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 964-971

ISBN: 978-989-758-458-9

Turkey, Somalia, and Egypt, has passed from

Islamic fiqh after experiencing changes from time to

time in regulating interfaith marriages among the

general public and the existing Muslim community

in that country specifically.

Islam introduces the concept of inheritance

sharing between men and women with a (2:1)

presentation. In the study of fiqh scholar law, there

are 4 things that abort a person from inheritance

rights, namely, (1) slaves, (2) murder, (3)

Relationships due to adopted children or adoptive

parents, (4) Religious Differences. There are also

scholars who add one more thing, namely apostasy

because some of them give different definitions

between apostates and religious differences from

birth (al-Qurthubi, 1989: 56).

2 INTERFAITH MARRIAGE IN

TURKEY, SOMALIA, EGYPT,

AND INDONESIA

In Indonesia, legally formal, marriage in Indonesia is

regulated in the Law of the Republic of Indonesia

Number 1 of 1974 concerning Marriage and

Presidential Instruction of the Republic of Indonesia

Number 1 of 1991 concerning Compilation of

Islamic Law. In this formulation it is known that

there is no marriage outside the law of each religion

and belief. in 2004, some progressive Muslim

groups, that is led by Siti Musdah Mulia, proposed,

in response to the CIL (Compilation of Islamic law),

a counter legal draft which, among other things,

permitted Muslim–non-Muslim marriage for male as

well as female Muslims. This is one of the most

significant dynamics in the discourse on the

development of family law in Indonesia. The

emergence of KHI Counter Legal Draft. The CLD

KHI is a response to the Applied Law on the

Religious Courts (RUU HTPA) submitted by the

Ministry of Religion to the DPR in 2003. On

October 24, 2004, the Indonesian Ministry of

Religion's Main Gender Mainstreaming Working

Group (MoRA Working Group) launched the

Counter Legal draft Draft Compilation of Islamic

Law (CLD KHI). The manuscript of the KHI CLD

sued and criticized as many as 19 crucial issues

related to the articles contained in the KHI, one of

which was about the legalization of interfaith

marriages. Verse 54 of the CLD states: (1) Muslim–

non-Muslim marriage is permitted. (2) Muslim–

non-Muslim marriage is carried out based on a

principle of appreciation and respect for the rights of

religious freedom of each other. Since MUI (the

Majelis Ulama Indonesia) and MMI (Indonesian

Mujahidin Council) rejected the motion of CLD, it

was not incorporated into the law. He concludes,

“the debate on Muslim and non-Muslim marriage is

shifting from an interreligious debate between

Muslims and Christians in the early 1970s, to a

debate within interreligious groups, as well as

between conservative and moderate Islamic groups”.

But at the fact the Supreme Court of Indonesia

endorsed the interfaith marriage on the basis of

human rights disregarding the rules of the sharīʿa. It

seems that interfaith marriage disputes will continue

to occupy the premises of the law courts for the

foreseeable future (Recep Çigdem, 2015).

This is certainly in accordance with the opinion

expressed by Moh. Mahfud MD (2010) that in order

to make changes to Islamic law and make it national

law, Muslims must fight in the framework of

national politics.

Then Turkish Civil Law governing marriage has

changed from time to time, Previously the Law

promulgated in 1917 prohibited marriage between

various sects of Christianity (verse 29) with other

different religions. Therefore, even a Catholic may

not marry a Protestant (Aydın, 1985). Verse 58 also

prohibits marriage between a Muslim woman and a

non-Muslim man and thus a Christian lover cannot

marry the Muslim woman he loveas. But the

opposite is allowed. This has changed since the

promulgation of the 2001 Turkish civil law which

did not regard religious differences as a barrier to

marriage. This is particularly found in verses 129,

130 and 145. Verse 129 which regulates the

obstacles to carrying out a marriage legally reads

“Evlenme engelleri: Aşağıdaki kimseler arasında

evlenme yasaktır: (1) Üstsoy ile altsoy arasında;

kardeşler arasında; amca, dayı, hala ve teyze ile

yeğenleri arasında, (2) Kayın hısımlığı meydana

getirmiş olan evlilik sona ermiş olsa bile, eşlerden

biri ile di

ğerinin üstsoyu veya altsoyu arasında, (3)

Evlât edinen ile evlâtlığın veya bunlardan biri ile

diğerinin altsoyu ve eşi arasında”. This verse clearly

does not state that religious differences are included

in one of the things which is a barrier for the Turkish

people to marry.

After the amendment of the law in 2001 Turkey

which was also in line with secular western

countries, tended to allow interfaith marriages,

because in the west the marriage had been shifted

from religious affairs to mere public affairs, so that

civil marriage was rampant, and marriages were not

must be based on religion. The legality of marriage

is not based on religious marriage but is in the

regulation of marriage registration by marriage

officials by the State. So, whatever religion is

embraced by the parties, not even a variety of

people, can establish their marriage by fulfilling the

The Human Rights and Women in the Context of Interfaith Marriage and Inheritance: A Comparative Analysis of Family Law in Muslim

Countries

965

existing procedure by proposing the Turkish Civil

Code adopted from Swiss law.

If analyzed in depth, it can also be concluded that

changes in family law that occur in Turkey are in

accordance with the theory put forward by John L.

Esposito (1982). He said that the reforms that occur

in the marriage law could be caused by social

changes, this social change will bring new demands

in accordance with the needs of the situation and

conditions of the community.

Different from Indonesia and Turkey, Disclaimer

Country Marriage Packs (CMPs) report that related

to marriage, there are 3 types of marriages in

Somalia. One of them is Traditional/Other

Merriages, based on the 2014 European Asylum

Support Office report. Mixed marriages between the

majority of clans and minority groups often occur in

the form of interfaith marriages. This is because the

rules that apply in Somalia are tied to the respective

laws in their respective regions (Somaliland,

Puntland, South-Central Somalia/al-Shabab-Islamic

Movement) (Abdullahi, 2001).

This is also supported by evidence of

LANDINFO (Danish Immigration Service, 2014),

which reports back that Somalia does not have a

functioning state government since 1991, and most

of the territory is not under real administration or

government. This means that Somalis cannot obtain

official documents such as ID cards, passports or

various certificates for the past 17 years. Thus, it

will be difficult to detect the administration of

religion in each of the prospective husband and wife

couples who will marry in the absence of official

documents that will inform the religion of the

government. In addition, as stated by the Director of

RRDR at Carleton University during a telephone

interview with IRBDC (May 15 and 18, 1990) that

"marriage is a religious matter in Somalia, not civil."

These statements were supported by COSTI

Manager, Center for Scholastic Organizations and

Italian technical located in Toronto, and the Somali

affairs authority that resides in Ottawa. So that the

action or treatment of whether or not the marriage of

a different religion is left to the family or clan of

their respective religions.

However Somalia based on its laws governing

marriage contains rules in 2000, that the marriage of

civil society must be in accordance with the

prevailing customs and religious rules. This rule is

contained in the marriage rules section 2 of verse 10.

In the general terms of the marriage, religious

equality is not included as one of the conditions. But

the necessity of having the same religion can be

understood in section 5 of Somali civil law which

specifically regulates religious marriage. This verse

reads “Qaybta 5aad: guur diimeedka, Qodobka 33

aad: Shuruudo Dheeri ah Guur diimeedku waa inuu

u dhacaa si waafaqsan nidaamka iyo shuruudaha ku

xusan diinta la isku guursanayo”. This means that

marriage based on religion must follow the terms

and procedures of the religion adopted by the bride

and groom. In fact, not only that, Somalia's civil law

section 7 also stipulates that violations of the terms

and procedures of religious rules in marriage include

violations of the law (verse 48), “Qodobka 48 aad:

Jabinta Shuruudaha Guur Diimeedka Saamaynta ka

dhalan karta jabinta mid ama wax ka badan ee

shuruudaha guur diimeedka waxay noqonaysaa sida

ay xeerinayso diinta la isku guursaday”.

In Egypt the Government only recognizes

interfaith marriages for Muslim men with non-

Muslim women, although there are no clear rules

governing the marriage rules of a Muslim man with

a Christian woman allowed under Islam. In Verse 22

of the Act which is unofficial code, Qadri Pasha

states that stating that Muslim women may only

marry with fellow Muslims. Whatever marriage has

been done between a Muslim woman and a priest, a

Christian, or a Jew, it is void and is no longer valid.

The interfaith marriage that applies in Egypt is a

marriage between two people in which the male is

Muslim and the woman is non-Muslim. So that

Egypt does not recognize interfaith marriage

between non-Muslim men and Islamic women.

In Egypt there are interfaith marriage records

(including mixed marriages) called Maktab at-

Tausiq (Husnul, 2016). Regarding the marriage of

Egyptians of different religions, there are 2

categories; First: If the man is Muslim, and the

woman is Christian. In this category, the Egyptian

wedding record office will ask Christian women to

make a statement from the diocese. A statement that

the woman will become a legal wife for her Muslim

husband and that there is no religious barrier for her

to marry. Usually the diocese does not agree on this,

which results in problems which prevent the

marriage record office from ratifying it. Second: If

the wife is a Muslim, her husband is not Muslim. In

this category, the marriage record office obstructs

from the beginning of the marriage, with the

foundation of this type of marriage violating general

rules in Egypt. So it's not the office of the record that

made the problem, but the marriage itself is a

problem.

Furthermore The Declaration of Human Rights, a

declaration of the member states of the Organisation

of the Islamic Conference adopted in Cairo in 1990

gives men and women the right to marriage

regardless of their race, color or nationality, but not

religion. Verse 6 is in contradiction with verse 5 as

the former specifies equality between men and

women but the latter revokes it by not allowing

women to marry non- Muslims. Verse 6 clearly

states: “Woman is equal to man in human dignity,

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and has her own rights to enjoy as well as duties to

perform, and has her own civil entity and financial

independence, and the right to retain her name and

lineage.” Verse 5 is contradiction with this one as it

remains silent on interfaith marriage: “The family is

the foundation of society, and marriage is the basis

of making a family. Men and women have the right

to marriage, and no restrictions stemming from race,

color or nationality shall prevent them from

exercising this right.”

It can be understood that in order to carry out

interfaith marriages in Egypt, the women of the

Book of Experts must first request permission from

the diocese. If there is no permit, the marriage

records office cannot validate the interfaith

marriage. As for the male non-Muslim, the marriage

records office from the beginning prevented the

marriage, because the Egyptian Marriage Law

prohibited interfaith marriages between male People

of the Book and Muslim women. When compared

with Indonesia, Egypt and Indonesia both apply the

concept of mixed marriage based on differences in

citizenship. However, the concept of mixed marriage

in the perspective of Egyptian marriage law is

broader by categorizing interfaith marriages as

mixed marriages, while Indonesia does not.

Based on analyzing vertically, it is seen that

Somalia, Egypt and Indonesia constitutionally do not

open the way for their people to conduct interfaith

marriages. So here it is illustrated that the applicable

rules and laws contained in the constitution in these

three countries are not too far away from the

classical fiqh. This is due to several reasons. Egypt

as a self-proclaimed country as a country with the

initials of Islam also constitutionally prohibits

Muslim women from marrying non-Muslim men,

this illustrates that the influence of the majority of

Egyptians who adhere to the Sunni school,

especially Shafi'i, has managed to maintain the rules

of immorality. the marriage is in their constitution.

So that the indignation of Egyptian family law from

classical fiqh is not far away, it even seems to be

inclined to the rules of Islamic turats. Although in

some cases as explained there are still efforts which

are considered to be an alternative for the marriage

to be permitted with several demands such as

permission from the religious leaders and others.

Indonesia too, clearly stated in the law that marriage

only occurs if marriages are carried out by brides

with the same religion. There is an element of

demand or necessity of religious unity on the part of

men and women. The phenomenon in these three

countries is certainly very different from Modern

Turkey which has now determined that marriage is

an act regulated by civil law no longer religious, so

that interfaith marriages are legitimate and

recognized by Turkish family law. This certainly

confirms that the regulation has gone far from the

provisions of Islamic Jurisprudence. The cause is of

course the secular values that are embraced by the

state and the influence of western culture that has

long been in contact with Turkey itself.

Furthermore, if analyzed horizontally, between

four countries there are three countries with similar

rules regarding interfaith marriages which prohibit

or not regulate constitutional interfaith marriages.

All three are Somali, Egyptian and Indonesian.

Diagonally, it is clear that among the four countries,

Turkey has become the most secular country with

the rules that apply far away from fiqh so that

interfaith marriages are not questioned because

religion is not a requirement for marriage. Then, if it

is reviewed, it seems that Egypt and Indonesia can

occupy the second position after Turkey because

there are still people who do interfaith marriages,

and the marriage is finally recorded in civil records,

even though by law, legal material explicitly does

not recognize interfaith marriages. Only Somalia

occupies the last position, although in Somalia there

are still forced marriages, and marries with demands

for clan cooperation which can allow interfaith

marriages with customary procedures rather than

religion, terms of family law material, the Somali

Family law stipulates that marriages must be carried

out according to religious procedures.

3 INHERITANCE IN TURKEY,

SOMALIA, EGYPT, AND

INDONESIA

Islam introduces the concept of inheritance

sharing between men and women with a (2:1)

presentation. In the study of jumhur fuqaha

inheritance law, there are 4 things that abort a person

from inheritance rights, namely, (1) slaves, (2)

murder, (3) Relationships due to adopted children or

adoptive parents, (4) Religious Differences. There

are also scholars who add one more thing, namely

apostasy because some of them give different

definitions between apostates and religious

differences from birth (al-Qurthubi, 1989).

Especially for Indonesia, the rules for the inheritance

section between men and women are compared with

2 to 1. Legislation used as a guide to family law in

Indonesia is the Compilation of Islamic Law (KHI)

which is a transformation of Law No. 1 of 1974

concerning marriage with several amendments and

additional articles. Indonesian legislation regulates

this because Muslims in their formulation are based

on faraid law (Islamic inheritance law based on

classical fiqh).

In contrast to Indonesia, Turkey is one of the

countries that establishes the same part of

The Human Rights and Women in the Context of Interfaith Marriage and Inheritance: A Comparative Analysis of Family Law in Muslim

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967

inheritance between men and women as there are

other countries such as Somalia. The Turkish Family

Law (The Civil Code 1926) stipulates that the share

of male and female inheritance is 1 in 1. One of the

most important things offered by the Turkish Family

Law is the principle of equality between men and

women related with inheritance with the same

division. This means that the share between men and

women in Turkish legislation is 1 in 1. The Turkish

legislation used is Civil Code 1926 (Tahir, 1987). In

the third book of the Law (Civil Code 1926), Turkey

applies the provisions of the same inheritance

section between men and women known as

"Introduction of equitable rights for men and women

in matters of succession" (Julio, 2013). Meaning:

Introduction to equality of rights between men and

women in terms of inheritance. Book III of the

Turkish Civil Code also states that the children left

by the heir, they get the same part of each other. But

in this law does not explain the status of adopted

children. In terms of legal material, family law

reform in Turkey is a reinterpretation of texts or

extra-doctrinal reforms, namely by giving a new

interpretation of the existing texts by including

elements from outside including the idea of

socialism and secularism in this case equality

between men and woman.

In Somalia Ismail Muqodim stated that the first

time that the idea of equating the inheritance of men

and women was the Turkish state during Musthofa

Kamal At Taturk's time, namely by replacing the

Shari'a Law with Swedish Law. Then this change

moved to Tunis through the hands of the Burqaibah,

then to Somalia (Anderson, 2008). The provision for

inheritance distribution in Somalia is to equate parts

between boys and girls. In Somalia in the law of

family law No. 23 of 1975 verse 158 states that men

and women have equal rights in the distribution of

inheritance. Verse 169 of the Act also stipulates in

detail that the wife whose husband is left dead

receives half of the inheritance if there is no child or

grandchild, and earns a quarter of the property if

there is a child or grandchild (Atho, 2003). In

addition, verse161 of the Law states that if the heir

consists of only sons and daughters, then the

inheritance is divided equally between the two,

except to distinguish between sexes, besides that, if

the heir is only a woman then he takes all the assets.

Likewise, the heirs of the heirs are only a mother, so

they will take all the assets.

In terms of legal material, (in this case

inheritance law) Somali family law has undergone

very drastic changes from inheritance law which is

formulated in the school of fiqh adopted by it, and is

very different from the inheritance law adopted in

various other Muslim countries. The renewal of the

concept of inheritance is essentially still based on

the concept of inheritance of the Sunni school

(especially Shafi'i) which he adopted first, such as in

the system of distribution according to the heir level

and the Ashabaah system, but then changes in the

distribution of inheritance in all levels of heirs and

system changes Ashabaah, which is based on the

idea of equal rights between men and women. In the

Somali inheritance law the surviving spouse, either

husband or wife, gets half the portion if there is no

child and a quarter if there is a child. While in

thesystem bi Nafsi Ashabah in Somalia female heirs

can also become bi Nafsi Ashabah. Then the reform

of material inheritance in Somalia also uses the

extradoctrinal reform model or form as in Turkey.

If Turkey and Somalia stipulate the provisions of

the inheritance section between men and women that

is a ratio of (1:1), then the Inheritance Law Reform

in Egypt is by granting the right to the husband or

wife to get the rest of the property (radd). In 1925,

the Egyptian Court issued a Judicial Circular No. 28

of 1925. The contents of this circular letter were

about the right of a widow to obtain the remaining

inheritance if there were no ashabah, ashabul

furudh, or other heirs by returning the remainder

(radd). In the development of Egypt's inheritance

law, the provisions concerning radd for husband /

wife are found in verse 30 paragraph (2) of law No.

77 of 1943 concerning waris (qānûn al-mīrāș) which

reads Egypt giving radd rights to spouses if there are

no other ashabul furudl and dzawil arham.

Provisions regarding radd for spouses in the

Egyptian law may be just a small change in the

Islamic inheritance system. However, this rule has

an important influence in the transfer of inheritance

(Anderson, 1965). In terms of legal opinion that

develops in fiqh, rules like this are more inclined to

opinions that are not popular among Islamic jurists

(fuqaha). The majority of scholars (jumhur) argue

that radd is only given to heirs because of blood

relations (nasabiyyah). Husbands or wives, as heirs

due to marriage (sababiyyah), are not entitled to

receive the remaining property with radd. As said by

Muhammad Ali Ash-Shabuni, that a husband and

wife are heirs of the ashhabul furudh who cannot get

radd. Therefore, they only get a portion in

accordance with the part that is the right of each

without the addition of one of them which is due to

the excess of the remaining assets. Even other

opinions referring to Zaid bin Thabit, do not know

the concept of radd. For this group, the remaining

assets go directly into the State treasury for the

public interest (Ash-Shabuni, 1995). Whereas

according to the Shia, the concept of radd is only

given to the husband (besides heirs who are entitled

to get radd as the opinion of Sunni) and not given to

the wife (Sukris, 1997).

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The granting of radd rights to husbands and or

wives refers to the opinion of Usman bin Affan.

Uthman believes that all heirs, including husband

and wife, are entitled to get the remaining property

by means of radd. The reason is, when there is a

shortage of inheritance 9in the event 'aul', the couple

will bear the shortage, so that if there is residual

property, the couple also has the right to enjoy the

remaining property. However, opinions like this

become the opinion of shadz / periphery which is not

popular among fiqh scholars. Compared to

inheritance law in Indonesia, this Egyptian

inheritance rule is similar to that in the Indonesian

inheritance rule which in verse 193 of KHI, based on

the interpretation of verse193 occurs when there is

no heir of heir, other than that radd is also given to

husband and wife as the right of experts other

inheritance.

Compared to inheritance law in Indonesia, this

Egyptian inheritance rule is similar to that in the

Indonesian inheritance rule which in verse 193 of

KHI, based on the interpretation of verse193 occurs

when there is no heir of heir, other than that radd is

also given to husband and wife as the right of

experts other inheritance. In terms of changing

Islamic law, Egypt has formally carried out

takhayyur (the selection of alternative law) by

moving from mainstream opinion to unpopular

opinions (Anderson, 1965). Whereas from the

perspective of the way the worldview of Muslims

towards Islamic inheritance law, the recognition of

the legal provisions concerning the right of a spouse

to receive radd has changed the Islamic view of the

sacredness of Islamic inheritance law and rigid

character in the provisions contained in the faraid.

(Ahmad, 2014).

Anthropologically, renewal or reform of

inheritance law in Egypt is related to changes that

occur in the social system of society, namely the

movement of Muslim communities from extended

family systems to the nuclear family system. The

rules in the faraid (husband/wife cannot get radd)

are more suitable to be applied in a society that

adheres to a large family clan system (extended

family), and is not in accordance with the nuclear

family system in Egypt.

In addition, if analyzed vertically, the Egyptian

and Indonesian family law spells the jumhur's

opinion about giving radd to husband and wife in

accordance with the theory proposed by Ahmad

Tholabi Kharlie (2013) which concludes that law

modernization and social change are two related

entities and influence each other. This opinion is

also in accordance with Maznah Mohammad (2011)

observance which explains that law and legal

interpretation undergo changes in accordance with

the structure of changes in state and community

authority.

In Turkey the concept of division of parts

between men and women which is equated, namely

(2:1), besides that it is also seen from the granting of

inheritance rights to grandchildren, adopted children,

children born from illegal marriages, even to heirs

who are religiously different . The second position is

Indonesia. Actually Indonesia still maintains the

concept of division of parts between men and

women which is equated to (2:1). However there are

some differences with the Sunni school in terms of

group inheritance (dzawil furud, ashobah, and

dzawil arham) based on KHI verse 176-193. KHI

enforces obligatory wasiat by giving part to adopted

children or adoptive parents, not only that by

arguing to consider the condition of a pluralistic

Indonesian society, whether reviewed from religion,

race, ethnicity, and language, wasiat obligah is also

intended for non-Muslim heirs with consideration of

sense of justice and humanity (Anshary, 2013).

Muhibbin (2013) mentions that the background of

the application is the judge's decision in some cases

regarding wasiat is obligatory for non-Muslims who

use qiyas with their legal idea, namely the expansion

of the interpretation of the giving of obligatory

wasiat to relatives who do not inherit that adopted

children or foster parents extended to relatives non-

Muslim.

Next in the third position is Somalia which is the

same as Turkey using the concept of division of

parts between men and women which is equated,

namely (1:1). But there is no inheritance for adopted

children, nor do children born to children born from

illegal marriages. It seems that they are not included

in the category of obtaining inheritance rights, but it

is possible to enter in the will category which should

not be more than 1/3 part of inheritance. For heirs of

different religions or non-Muslims, Somalia does not

give inheritance rights to them according to the

Shafi'i school adopted.

Then Egypt, which was felt to be more

conservative when compared to the three previous

countries, was generally in accordance with the

Egyptian inheritance law adopted by the Sunni

school. But in some cases there are not too many

differences between the laws that apply to the rules

of faraid, including (1) Egypt imposes the Egyptian

Will Law No. 71 of 1946 which granted no more

than 1/3 of the mandatory wasiat for a grandson

whose parents died before or together with their

grandparents. (2) giving radd to a husband or wife.

Egypt's other conservative evidence is that it states

explicitly that Muslims and non-Muslims cannot

inherit each other (Rusyd, 1985).

From the explanation above, horizontally there

are several similarities and also differences between

The Human Rights and Women in the Context of Interfaith Marriage and Inheritance: A Comparative Analysis of Family Law in Muslim

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the four countries. Turkey and Somalia apply the

same concept in terms of the division of inheritance

between men and women, namely (1 : 1), in contrast

to Indonesia and Egypt, which still maintains the

concept according to the rules of faraid science,

namely the share of men and women is 2 to 1.

Furthermore, there are equality between Turkey and

Indonesia which gives part of inheritance to adopted

children and non-Muslim relatives even with

different methods, if Turkey through direct

distribution of inheritance by equating parts of

adopted children or non-Muslim relatives with

biological children and Muslim relatives.

So Indonesia gave the part of adopted children

and non-Muslim relatives through obligatory wasiat.

Sting differences clearly exist between Turkey and

the four other countries regarding the rights of

grandchildren, if Turkey equates the rights of

grandchildren as a child (if there are children and

grandchildren then they all allied with inheritance

with equal distribution), Unlike Somalia which

declares grandchildren immigrated by the existence

of a child, furthermore Indonesia gives the

grandchild the right through the successor to the

substitute only if his parents have or have died with

the heir. Whereas Egypt gave the rights of his

parent’s grandchildren to have died with the heir

through wasiat. And the last is the Equality between

Indonesia and Egypt which both share the portion of

radd to a husband or wife.

4 CONCLUSIONS

Diagonally in the Context of Interfaith Marriage, it

is clear that among the four countries, Turkey has

become the most secular country with the rules that

apply far away from fiqh so that interfaith marriages

are not questioned because religion is not a

requirement for marriage. Then, if it is reviewed,

Egypt and Indonesia can occupy the second position

after Turkey because there are still people who do

interfaith marriages, and the marriage is finally

recorded in civil records, even though by law, legal

material explicitly does not recognize interfaith

marriages. Only Somalia occupies the last position,

because the Somali Family law still stipulates that

marriages must be carried out according to religious

procedures.

In terms of family law material, (in this case

inheritance law) both in Turkey, Somalia, Egypt and

Indonesia in a vertical comparative with what is

contained in the books of Jurisprudence, then these

laws have gone far, even though this change is

appropriate with one of the fiqh which states that

legal reasons are an important consideration in the

application of the law, al-hukm yaduru ma'a 'illatih.

If considered diagonally between these four

countries Turkey, Somalia, Indonesia and Egypt,

Turkish family law can be said to be the most

secular and very modern country in the renewal of

its inheritance law.

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