Indonesian Islam - TEXT PAGES 15/7/03 3:14 PM Page 145
WOMEN: STATUS AND OBLIGATION
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point about the Muhammadiyah jawab, however, is that the issue is not even raised, although it is fundamental. An interesting variation on contract is to be found in an NU fatwå479 from 1935, which is an opinion on a practice known as Cina buta (‘blind Chinese’). A husband has irrevocably divorced his wife but wishes to remarry her. The fiqh requires an intervening marriage. The Indonesian (and Malaysian) practice was to employ a man (mu˙allil) to enter into the intervening marriage on the understanding that consummation would not occur. In other words, the form but not the substance of the marriage could be demonstrated, after which, on divorce, the remarriage could take place. How widespread this practice was (and is?) is unknown, though it is not an uncommon theme in literature of the period.480 The fatwå draws a distinction between form and substance. The contract is valid, though makr¥h (repugnant). However, if the arrangement is part of the original marriage contract, then that marriage is not valid, it is mu>ta. There are other examples of bars to marital obligations being incurred. All our sources know the concept of exclusion—‘may not’. An example is the class ‘saudara susu’ (children nursed by the same woman), who may not marry. The prohibition is in Qur’ån S IV:23 and repeated in å˙åd•th from Bukhår•, Muslim and others. The Indonesian fatåwå follow exactly the same rules,481 although there is some dispute as to how many times and with what frequency the suckled (foster) child must take milk.482 A woman ‘may not’ be forced into accepting the obligations of marriage. We have already seen the primacy of this concept in the Persis view, and this can be contrasted with an NU fatwå 483 from the same time (the 1930s). In this case the local police attempted to force a woman to marry because she had been involved in sex outside marriage. The NU committee decided that this was not permitted but, on the other hand, a judge (not specified as civil or religious) might actually make an order. The authority cited is Ibn Qåsim’s Fat˙ al-qar•b from the Arabic, not from the Indonesian translation. This example of lack of positive or voluntary consent can be contrasted with the impossibility of consent because of factors outside the control of the woman herself. She may wish to but ‘cannot’ enter into the obligations of marriage. There are two fatåwå from NU separated by over 30 years. They are remarkably consistent, both concerning menstruation (˙ai∂) which, as is well known, must run three courses before remarriage is possible. The first484 concerns a woman who, for medical reasons, had not menstruated for 18 months and was not likely to do so in the future. The committee decided that remarriage was not possible until either courses did occur or the time for menopause had arrived. The time at which this is placed was not specified. The same question came up in 1960, and this fatwå 485 repeated the 1935 answer, that menstruation or menopause must occur. The same authority (I>ånat a†-†ålib•n) is cited in both instances. However, the 1960 fatwå provides an alternative: if the absence of menstruation can be shown to be due to a proven medical condition, then a nine-month waiting