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declaration before the judge[1], who must of course enquire into the case in the first instance.
The judge before whom the declaration is made gives no verdict (for which indeed there is no necessity) but declares the facts viz. whether or no the divorce is brought into force by means of the declaration made in his presence coupled with the fulfilment of the other condition as evidenced by the woman's statement.
Intentional adoption of the taʾlīq custom.As appears from the above explanation, this adat in favour of the woman is a most reasonable one since if the law were applied in its purity[2], the right of demanding separation (faskh) on the grounds mentioned would be entirely denied to the woman. Thus where Van den Berg, in the essay referred to (pp. 486–7) notices as "peculiar" the wide use made of the taʾlīq, and characterizes it as "a somewhat useless expedient for dissolving marriages", we are constrained to qualify as most peculiar the writer's want of familiarity both with the essential nature of this native adat and with the rules of Mohammedan law as to taʾlīq and faskh. This adat is universally esteemed by native teachers and laymen as a social blessing, in view of the thoughtlessness with which marriages are entered into, the indifference of many husbands to their wives and their proneness to abandon them, as well as the large numbers of those who lead a roving life[3].
- ↑ This declaration is called rapaʾ ((
Arabic characters)), a word which in Arabic may be used to signify all kinds of declarations, but is used in Javanese and Sundanese as the technical term for the declaration of a woman that a taʾlīq condition has been fulfilled and that she wishes the marriage dissolved. The taʾlīq-formula usually runs as follows: samangsa-mangsané kula (here follow the conditions) ora trimané rabi kula, rapaʾ maring kakim, mangka runtuh talāq kula siji maring rabi kula N.
- ↑ There are indeed Mohammedan courts which give faskh on simple proof that the husband has failed in his obligations, but such verdicts are based simply on the ignorance of the judges, and not on any rights conferred by adat, far less on Moslim law. Some courts also wrongly apply the name pasah to proof of the talāq which has arisen through taʾlīq, but we must not draw from this use of the term any negative conclusions in regard to the adat of the taʾlīq. In certain parts of Jogjakarta (where taʾlīq is universal and faskh in its proper sense very rare) the word pasah is used to designate the official who is elsewhere called naib or district pangulu.
- ↑ The fact that "the majority (of the Javanese) even of the lower classes, do not enter into matrimony with a settled intention of being guilty of wilful desertion of their wives" (Van den Berg, Afwijkingen, p. 487) is but a poor consolation to the woman whose husband is compelled to migrate as a labourer for hire or cultivator into districts where possession in common prevails, but does not possess the means or the inclination to take his wife along with him. It is sought to arm the woman, not against a base intent conceived beforehand, but against unfortunate eventualities which as experience shows very frequently occur. Even Arabic teachers, who are otherwise always inclined to frown on native customs, exhibit a great regard for the "conditional separation" and do their best to maintain it.
