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All Journal Indonesian Journal of Islamic Law (IJIL) An-nisa: Journal of Islamic Family Law
Rishat Ameer Ğafurof
Kazan Federal University, Russian Federation
Religion Humanities Law, Crime, Criminology & Criminal Justice Social Sciences Other

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Between Law and Faith: Judicial Dilemmas of Unregistered Polygamy and Divorce in Indonesia Holilur Rohman; Rishat Ameer Ğafurof; Arif Jamaluddin; Wardah Toyyibah; Abdul Wahab Naf'an
Indonesian Journal of Islamic Law Vol. 8 No. 2 (2025): Indonesian Journal of Islamic Law
Publisher : Postgraduate Programme of UIN Kiai Haji Achmad Siddiq Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35719/5f0dpp36

Abstract

Divorce in unregistered polygamous marriages constitutes one of the most pressing socio-legal challenges in contemporary Indonesia, particularly after the enactment of Supreme Court Circular (SEMA) No. 3 of 2018, which prohibits religious courts from granting isbat nikah for such unions. This article examines two interrelated questions: first, the practical problems of divorce faced by women in unregistered polygamous marriages within the SaMaRa Centre community; and second, the perspectives of religious court judges regarding these issues, assessed through the normative lenses of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Maqāṣid al-Sharīʿah. Methodologically, this study adopts qualitative fieldwork, combining semi-structured interviews with women affected by such marriages and judges from religious courts in Surabaya and Probolinggo. The findings reveal divergent judicial approaches: some judges uphold strict procedural consistency in line with SEMA No. 3/2018, while others emphasise fairness and maṣlaḥah (public welfare) to justify more flexible rulings. This divergence underscores a judicial dilemma between procedural uniformity and the imperative of justice for vulnerable women. By situating these debates within international human rights norms and Islamic legal theory, the study emphasises the need to develop a more inclusive legal framework that balances state regulations with gender justice. Ultimately, it argues for stronger judicial pathways to protect women’s rights in informal unions, offering insights into the intersection of law, religion, and social realities in Muslim-majority contexts.
Mechanism for Settlement of Wali Adhal Cases in the Determination of Guardian Judges in Banda Aceh Cut Amirah Fatinah; Khairani Mukdin; Nik Salida Suhaila Nik Saleh; Rishat Ameer Ğafurof; Kasuwi Saiban
An-Nisa: Journal of Islamic Family Law Vol. 2 No. 3 (2025): September
Publisher : Yayasan Cendekia Gagayunan Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.63142/an-nisa.v2i3.361

Abstract

This study aims to examine the factors that lead to the appointment of a marriage guardian judge (wali hakim) due to the refusal of a legitimate guardian (wali adhal), as well as the mechanism of its implementation at the Office of Religious Affairs (KUA) in Lueng Bata District, Banda Aceh. The research employs a qualitative approach with a sociological-empirical method, using in-depth interviews, observation, and documentation with the Head of KUA and KUA staff as the primary sources, supported by secondary data from literature and legal documents. The findings reveal that the appointment of a wali hakim generally arises from non-shar’i reasons, including personal conflicts between guardians and prospective brides, excessive social considerations related to the groom’s status, economic concerns, and long-standing family disputes. These factors restrict women’s rights to marry in accordance with Islamic law. The resolution mechanism consists of several stages, starting from reconciliation efforts, mediation by KUA and community leaders, and, if necessary, filing a petition to the Religious Court. Once the court transfers guardianship rights, the marriage can be solemnized with a wali hakim appointed by the judge. This study highlights the crucial role of KUA and the Religious Court in safeguarding women’s rights and ensuring the validity of marriage under both Islamic and state law in Indonesia.
Co-Authors Abdul Wahab Naf'an Arif Jamaluddin Cut Amirah Fatinah Holilur Rohman Kasuwi Saiban Mukdin, Khairani Nik Salida Suhaila Nik Saleh Wardah Toyyibah