Sugianto Sugianto
Universitas Islam Negeri Siber Syekh Nurjati Cirebon

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The Implementation of Descente in Hadhanah Disputes: A Juridical and Child Psychological Perspective in Religious Courts Barkah Ramdhani; Wasman Wasman; Sugianto Sugianto; Edy Setyawan; Khiyaroh Khiyaroh
Mawaddah: Jurnal Hukum Keluarga Islam Vol 4 No 1 (2026): Mei
Publisher : Universitas Muhammadiyah Bandung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.52496/mjhki.v4i1.59

Abstract

This study aims to analyze juridically the implementation of descente (local examination) in influencing judges' consideration of child custody disputes (hadhanah) in the Religious Court by focusing on the psychological perspective of the child. The main problem lies in the limitations of the descente function, which is classically oriented to material matters, but in practice it is beginning to be used to assess the child's parenting and emotional relationships. This study uses a qualitative method with an empirical juridical approach through literature studies, decision analysis, and in-depth interviews with judges. The data were analyzed by examining the suitability of descente practices to Islamic civil procedure law and its relevance to the psychological needs of children, such as a sense of security, emotional closeness, and developmental stages. The results of the study show that descente plays a strategic role in enriching the judge's consideration base because it is able to present the reality of children's lives that are not fully revealed through formal evidence. The child's psychological perspective also emphasizes the urgency of descent as an instrument to actualize the principle of the best interest of the child. However, it was found that there were variations in the intensity, quality, and integration of descent results into the consideration of the decision, which had implications for the inconsistency of the application of child protection principles. Thus, this study recommends strengthening normative guidelines through Supreme Court regulations and increasing the capacity of judges in understanding aspects of child psychology so that the implementation of descente is more optimal as an instrument to protect children's rights and welfare in hadhanah cases.
Recontextualizing Article 97 of the Indonesian Compilation of Islamic Law: A Maqasid-Based Analysis of Judicial Practices in Joint Property Disputes Supian Daelani; Wasman Wasman; Sugianto Sugianto; Samsudin Samsudin; Randy Vallentino Neonbeni
Mawaddah: Jurnal Hukum Keluarga Islam Vol 4 No 1 (2026): Mei
Publisher : Universitas Muhammadiyah Bandung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.52496/mjhki.v4i1.60

Abstract

Article 97 of the Compilation of Islamic Law (KHI) stipulates that if a marriage ends due to divorce, each surviving widow or widower is entitled to half (50%) of the joint property, unless otherwise stipulated in the marriage agreement. This study aims to review (recontextualize) the application of Article 97 of the KHI from a justice perspective, particularly in cases where the husband and wife's contributions to the acquisition of property are unequal, or where one party (particularly the wife) bears a double burden. The research method used is normative legal research with a conceptual approach and a case-based approach (judgment decisions). The results indicate that the rigid application of Article 97 of the KHI (equal division) often results in substantive injustice, particularly when the wife acts as the primary breadwinner or a housewife who works hard beyond basic obligations while the husband is negligent.  Recontextualization of this article is necessary by shifting the paradigm from "equal distribution" (equality of portion) to "division based on real contribution" (proportional justice) and the principle of Maqasid Sharia (benefit). Supreme Court Judge Decision No. 266 K/AG/2010 provides the basis for the division of joint assets not necessarily being 50:50, but rather taking into account the extent of each party's contribution to the acquisition of the joint assets.