Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan

Criticizing the Verdict of 916/Pdt.P/2022/PN.Sby Surabaya District Court Against Interfaith Marriage from the Perspective of Marriage Law in Indonesia

Ahmad Fernanda — 2023-12-01

This article is based on a critical review of the verdict of 916/Pdt.P/2022/PN.Sby, which recognizes the validity of interfaith marriages in Indonesia. This decision is different from the provisions of the marriage law in force in Indonesia. Indonesia has regulated that marriages can be carried out according to their respective religions. This article aims to critically analyze the verdict of 916/Pdt.P/2022/PN.Sby. This research is a normative juridical study with a case approach. The main data sources are obtained from court decisions and marriage laws. This article also uses several important articles and research resulting from empirical studies. Based on the data findings and analysis that have been carried out, this paper argues that: Firstly, interfaith marriages are prohibited in Islamic law because they contain more harm than good; this prohibition merely closes the opportunity for bad impacts to occur after the marriage; and second, the decision issued by the Surabaya District Court Judge was inappropriate because it conflicted with positive law and Islamic law. Legally, the judge may refuse to grant permission based on Article 2 paragraph (1) of the Law on Marriage and the Compilation of Islamic Law (KHI). In this decision, the judge has a different interpretation of the marriage regulations that apply in Indonesia.

Protection of the Rights of Adultery Children in Indonesia: A Perspective of Positive and Islamic Law

Iffah Fathiah — 2023-12-02

The phenomenon of parents abandoning their children due to adultery is quite common these days. In the marriage legal system in Indonesia, children born outside a legal marriage cannot be recognized as legitimate children, so their civil aspects follow those of their mother. Children resulting from adultery lose some of their rights as children of a father, and this has the potential to disrupt their future. This research aims to analyze the rights of children resulting from adultery and whether there are solutions that can be taken so that children resulting from adultery still receive their rights even without a cross-breed relationship with their biological father. The research method used is a library research with a sociological-legal approach. Data sources were obtained from the law and several important articles related to this research problem. Apart from that, this article also uses the results of empirical research to strengthen the arguments in this research. Based on the research results, it was found that, from various studies, there is often a neglect of children's rights as a result of adulterous relationships. Men tend to leave their partners, and in the end, women often become single parents to meet the child's needs. Legally, the state can punish the adulterer (biological father) for being responsible for the needs of the child resulting from his adultery.

Nusyuz and Domestic Violence in Indonesia: Reinterpreting Punishment Using the Ma'nâ al-Haml Method

Harwis Harwis — 2023-12-15

Tafsir and classical jurisprudence provide three stages of solutions for a nusyûz wife. Stages of advising, separating beds, and hitting. This interpretation of nusyûz and the solution to hitting is not appropriate to the current context, so it is necessary to expand the meaning with a ma'nâ al-haml approach. Ma'nâ al-haml is used by bringing the meaning of a pronunciation to a more relevant meaning in terms of conditions, time, and space. This research uses a qualitative approach in analyzing, explaining, describing, and revealing research results. Research conducted in libraries is the method utilized to gather data. This study looks at how nusyûz solutions are interpreted in traditional tafsir and fiqh literature. It then reinterprets them using the ma'nâ al-haml approach by considering the views of modern ulama.These interpretations are then analyzed for their relevance to the laws in force in Indonesia as conditions, space, and time for understanding the pronunciation of the text using the ma'nâ al-haml approach. This research concludes that nusyûz is not caused by the wife's disobedience but rather by her bad morals or the bad morals of her partner. Nusyuz can not only occur from the wife's side but can also occur from the husband's side. Therefore, with the ma'nâ al-haml approach, you need to introspect yourself when dealing with nusyûz issues before giving signals to your partner. The solution to a nusyûz partner is not by hitting them but by discussing and negotiating to find the best solution.

Provisions Before Marriage to Make Indonesian Urban Muslim Families More Resilient: A al-Maslahah al-Mursalah Perspective

Ahmad Jalili — 2023-12-15

The implementation of premarital provision has been regulated in Director General of Islamic Community Guidance Regulation No. DJ.II/542 of 2013. This study discusses the effectiveness of premarital provision as a family resilience effort based on the concept of al-maṣlaḥah al-mursalah, especially at the KUA of the Kepulauan Riau Province. This study uses qualitative research methods in the form of field research. The approach used is empirical and juridical. The sources of data in this study are divided into two categories, namely primary and secondary. The data collection techniques used are observation, interview, and documentation. The results of this study show that the premarital training that took place at the KUA in the Kepulauan Riau Province has not been effective as an effort for family resilience. Based on al-maṣlaḥah al-mursalah, premarital provision is included in al-maṣlaḥah al-hajiyyah because it is not part of the pillars and conditions of marriage. Premarital training is actually very effective as an effort to maintain family resilience, because with premarital training, it makes perfection for the prospective bride and groom, namely to gain knowledge about marriage for the sake of creating a family sakinah, mawaddah, and warahmah.

Between Conservatism and Progressivism: The Young Penghulu in East Java's Legal Paradigm Addresses Disability Issues in Marriage

Mukhammad Nur Hadi — 2023-12-22

The legal knowledge of penghulu on disability issues determines how to implement laws that advocate for persons with disabilities. This paper traces the legal paradigm of seven Penghulus in East Java who were newly inducted in 2022 against several articles in the Compilation of Islamic Law (KHI) that touch on disability issues. Some of the themes tracked are marriage guardians (article 22), marriage witnesses (article 25), and polygamy (article 57). It is an empirical study using conceptual and philosophical approaches. This article finds that most young East Javanese penghulu still need an advocate interpretation paradigm because they read the articles authentically and grammatically, not sociologically or teleologically. The benefit (maslahah) aspect of these articles is also considered to look more authentic. Therefore, the argument of advocates for the rights of persons with a human rights perspective is not widely involved. As a result, persons with disabilities who are guardians of marriage, witnesses of marriage, and wives can become victims of neglect of fundamental civil rights in marriage. It is where the conservative paradigm of the young penghulu comes into being strong and dominant. The existence of the progressive paradigm is also buried and framed in the current conservative paradigm. This finding is certainly an important note about how the government indirectly shapes the contestation of conservative and progressive paradigms in family law.

Decriminalisation Against Women Who Perform Illegal Abortions From the Islamic law Perspective

Ramadhita Ramadhita — 2023-12-31

Illegal abortion remains a problem in many countries, medically, ethically and legally. Although it restricts the practice of abortion, Islamic law does not question its legality. This study aims to analyse the criminalisation of abortion in Islamic criminal law after 120 days of pregnancy. This article is a normative legal research with a conceptual approach. The results of this study indicate that Islamic law gives full respect to the right to life of a person, including the right to life of the foetus. However, Islamic legal scholars differ on the priorities in safeguarding the lives of pregnant women and foetuses. Islamic legal scholars differ on the criminalisation of abortion. For abortions performed under 120 days of age, the perpetrator is not subject to criminal sanctions. Abortion above 120 days is prohibited except where there are compelling medical, ethical and legal reasons to do so. In cases of rape that result in pregnancy, women have the full right to abortion at any gestational age. Nevertheless, women are still subject to sanctions in the form of kaffarat and diyat al-ghurrah. This aims to prevent people from easily performing abortions.

Implications of Postponing the Distribution of Inheritance from an Islamic Legal Perspective

Aminah Tanjung — 2023-12-31

Conflicts between heirs and a reduction in the rights or shares that must be received as a result of some assets being controlled by one party generally result from delays in the community's inheritance distribution. To avoid this, it is crucial to comprehend and be aware of how inheritance is distributed in society from the standpoint of Islamic law. Qualitative research using a normative juridical perspective is the methodology employed. The distribution of inherited assets should not be delayed because the negative impact is greater than the positive impact felt by the community, so it is better for the community to immediately distribute the inherited assets after the heir dies and the costs of arranging the body, paying wills, and paying debts have been completed. The Compilation of Islamic Law (KHI) also specifies what needs to happen when heirs inherit money, as stated in Article 187, and what needs to happen when one family decides not to share the money, as stated in Article 188.

The Legitimacy of Marrying a Pregnant Woman from the Perspectives of Islamic Scholars and Legislation in Indonesia

Agustin Hanapi — 2024-01-27

Shotgun marriage is a serious issue that has recently become increasingly common in society. Some men who impregnate women take responsibility and are willing to marry them, while others run away and shirk their responsibility. While some men are willing to marry women who are already pregnant, the perception still exists in some parts of society that those couples must remarry after the children are born and that the children cannot be traced back to the fathers who acknowledge it. This present study aims to answer the following question: what is the legitimacy of marrying a pregnant woman according to Islamic scholars and Indonesian law in the maslahah method? The results of the study reveal that according to Abu Hanifah and his student Muhammad, it is permissible to marry a pregnant woman if the one who marries her is the man who impregnated her. However, the marriage of a pregnant woman to a man who did not impregnate her is still a matter of debate. According to Abu Hanifah and Muhammad, it is permissible, but the man should not have intercourse with her until the child is born. According to Abu Yusuf and Zafar, it is not permissible to marry a woman who is pregnant as a result of zina (fornication) with another man because it is likened to pregnancy without zina. Imam Malik does not allow the marriage of a pregnant woman because of zina and considers such a marriage to be invalid, and the woman must undergo the iddah (waiting) period. Imam Shafi'i, on the other hand, considers shotgun marriage to be valid, regardless of whether the man who marries her is the one who impregnated her or not, and it is permissible for him to have intercourse with her even though she is pregnant because the presence of the fetus does not invalidate the marriage contract. According to the Hanbali scholars, marrying a pregnant woman is not valid unless two things have been done: she has repented and she has waited out the iddah period. Article 53 of the KHI (Kompilasi Hukum Islam/The Compilation of Islamic Law) states that a woman who is pregnant outside of marriage can be married to the man who impregnated her, and the marriage can be solemnized without waiting for the child to be born. However, the KHI should also add a phrase about a man who marries a pregnant woman who is not the one who impregnated her. This permissibility does not mean condoning zina but rather accommodating the interests of Indonesian society, which is in line with the opinion of Imam Shafi’i.