El-Hadhanah : Indonesian Journal Of Family Law And Islamic Law

The Application of Hadhanah Rights for Muallaf Parents and Its Consequences on Child Welfare in Malaysia (An Analysis of Federal Court Decision No. 02-19-2007 (W))

2024-09-12T05:27:58+08:00

There is a discrepancy between Malaysia's positive law which stipulates that the right to hadhanah (custody) of a child must be given to Muslim parents, and the court ruling that gives non-Muslim mothers the authority to take care of the child. Therefore, there needs to be a deep understanding of how the decision contributes to the best interests of the child and the protection of the child. This article aims to analyze the implementation of hadhanah rights for parents of converts in Islamic family law in Malaysia. This study uses qualitative methods and normative legal approaches, focusing on the Federal Court decision No. 02-19-2007 (W) on the right of hadhanah for parents of converts in Malaysia. Data sources include laws, judges' decisions, and legal literature. Data were collected through literature studies and analyzed inductively. The results of the study show that the Federal Court's decision emphasizes the importance of mutual consent in decision-making related to custody, where the welfare of the child is the top priority. The decision underlines that child protection should include various aspects, such as collaborative custody, emotional well-being, appropriate religious education, and protection from negative influences. Thus, this research contributes to the development of Islamic family law and emphasizes the importance of child protection in the legal system.

The Effect of Rejection of Itsbat Nikah on Inheritance (Study of Judges' Legal Considerations Number: 124/Pdt.G/2023/MS.Bna)

2024-11-08T03:26:53+08:00

This research aims to explain judges' legal considerations from the perspective of procedural and substantive justice. This is because the decision 124/Pdt.G/2023/MS.Bna, which was a case where the application for a marriage registration was rejected and caused problems with the purpose of the marriage ceremony, thus affecting the position of the parties before and after the decision. In this research the author used qualitative research methods and a normative juridical approach, namely by examining the judge's decisions (content analysis). The judge's legal considerations are analyzed using the theory of justice (procedural and substantive) and compared with several other decisions. The results of the research show that the decision of the Banda Aceh Syar'iyah Court which was based on the provisions of the Compilation of Islamic Law resulted in everyone having the right to become heirs except the applicant, whereas if it was based on the provisions of fiqh the applicant had the right to become an heir because the applicant's marriage was valid in harmony and according to the requirements of Islamic law. . In considering decision 124/Pdt.G/2023/MS.Bna the judge sided with the nature of procedural justice only and ignored substantive justice, resulting in formal justice which was only guided by the law. If the judge uses extra-legal considerations and substantive justice, the itsbat application is very worthy of being accepted.

Strategies for Protection and Recovery of Domestic Violence Victims: Analysis of Rumah Putro's Role for Women and Children

2024-09-27T06:54:08+08:00

This study examines the protection and recovery strategies for victims of domestic violence (KDRT) at Rumah Putro Banda Aceh, which serves as a center for data, services, empowerment, and cross-sector coordination. Its primary goal is to achieve gender equality and justice by optimizing referral services and protection mechanisms for women and children victims of physical and psychological abuse. The main challenge faced is the lack of standardization of Rumah Putro as a safe house for KDRT victims. This research employs qualitative methods with a field approach to understand and investigate community issues in a naturalistic manner. The findings reveal that Rumah Putro has made various efforts to prevent domestic violence in Aceh. In carrying out its functions, Rumah Putro collaborates with hospitals for medical needs and with the psychology association at Ar-Raniry State Islamic University Banda Aceh for the psychological, mental, and trauma recovery of victims. The forms of protection provided by Rumah Putro include: 1) Provision of temporary shelters or safe houses; 2) Legal assistance; and 3) Psychological recovery. This study provides a comprehensive overview of the effectiveness of the protection and recovery efforts conducted by Rumah Putro and identifies obstacles and potential improvements that can be implemented to enhance services for women and children victims of domestic violence.

Juridical Review of Adultery Cases at the Sigli Syar’iyah Court (Case Study of Decision Number 12/JN/2024/MS.Sgi)

2024-08-01T10:06:11+08:00

Aceh as the only province in Indonesia that implements Islamic sharia law, regulates adultery through Qanun Number 6 of 2014 concerning Jinayat Law. However, in practice, this qanun still faces various weaknesses, especially related to the defendant's confession which is often considered as the main evidence. This raises questions about the validity of the confession without additional evidence. In addition, the application of jinayat procedural law has also not been fully implemented in accordance with applicable provisions. This study starts from two main problem formulations: how is the application of the defendant's confession in the Aceh Qanun Jinayat related to adultery, and how is the legal review of the implementation of decisions in adultery cases at the Sigli Syar'iyah Court based on Qanun Number 6 of 2014 and Qanun Number 7 of 2013 concerning Jinayat Procedural Law. The study uses a normative legal method with a statutory, case, and sociological approach. Primary data was obtained from an official copy of Decision Number 12/JN/2024/MS.Sgi, while secondary data includes legal literature, academic journals, qanuns, and other supporting documents. The results of the study indicate that the defendant's confession is the main evidence underlying the determination of the sentence, although this approach is prone to problems if the confession is obtained without ensuring the defendant's freedom from pressure. Community involvement in raids, which are often carried out without formal legal procedures, triggers a violation of the defendant's privacy. The destruction of evidence in the form of the defendant's cellphone is also considered less relevant because the item did not have a direct role in the crime. Therefore, an evaluation of the jinayat legal mechanism in Aceh is needed, especially in terms of evidence, community involvement, and management of evidence, to ensure a more just, humane, and consistent application with the teachings of Islam which is rahmatan lil 'alamin.

Implementation of Wedding Party Before Marriage Contract in the Perspective of Maqasid Sharia (Case Study in Gayo Lues Regency)

2024-09-05T08:48:33+08:00

Walimatul 'urs, or wedding feasts, as stipulated in hadith, should be conducted after the marriage contract (akad nikah) has taken place. This indicates that the marriage contract is prioritized over the walimatul 'urs. However, there are segments of society in Gayo Lues Regency that hold the walimatul 'urs prior to the marriage contract. This practice, as previously explained, contradicts the hadith. Furthermore, some scholars argue that walimatul 'urs should be conducted after the marriage contract and the consummation (dukhul) has occurred. This implies that both the marriage contract and consummation should be viewed and executed cumulatively. This study aims to examine the implementation of walimatul 'urs before the marriage contract according to Islamic law. Additionally, the analysis is conducted using a maqasid sharia approach. The research employs a qualitative method, utilizing field research. Primary data is obtained through interviews and observations conducted by the researcher. The findings indicate that the implementation of walimatul 'urs before the marriage contract contradicts the hadith, as the essence of marriage lies in the marriage contract, not in the walimatul 'urs. However, from the perspective of maqasid sharia, particularly the principle of hifzul mal (preservation of wealth), if walimatul 'urs is not prioritized, it may lead to dharar (harm). Since dharar must be eliminated, it can permit actions that are fundamentally prohibited or haram. Based on the considerations of maqasid sharia, prioritizing walimatul 'urs in this context is deemed more appropriate than prioritizing the marriage contract.

The Nasab of A Corpse to Its Mother in the Practice of Talkin in Keudah-Malaysia and Aceh-Indonesia

2024-12-12T07:46:19+08:00

Talking to the corpse is a tradition that has been practiced for a long time in Islamic society in the archipelago, the form of implementation is very diverse. The naming of the corpse in the practice of talking to the mother is different from the lineagein fiqh which is generally referred to the father. The use of pronunciation is also different, the Kedah Malaysian community carries out talking using Malay, while the Acehnese community in Indonesia uses Arabic. This study answers the background of the differences in the use of the talkin phrase in Kedah-Malaysia and Aceh-Indonesia and the reference basis used. Answering this objective, interviews were conducted with several religious figures and observations were made on the talkin activities and relevant documents were reviewed. After obtaining qualitative data, the data were then compared using comparative analysis. The results of the study found that the process of implementing talking between Kedah-Malaysia and Aceh-Indonesia was almost the same, but in the use of the talkin phrase by the Kedah-Malaysian community using Malay which was adopted from the hadith narrated by al-Ṭabrānī in a visible way as their reference. Meanwhile, in Aceh-Indonesia, they practice the reading of talkin the corpse in the History of al-Ṭabrānī, but in narrating the corpse using the concept of lineage in fiqh because the aim is to make it easier. Ulama Keudah Malaysia and Aceh admit that narrating the corpse to the mother in the practice of talkin is more important than to the father.