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All Journal El-Faqih : Jurnal Pemikiran dan Hukum Islam
Fatahuddin Aziz Siregar
Universitas Islam Negeri Syekh Ali Hasan Ahmad Addary Padangsidimpuan, Indonesia
Religion Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences

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Rechtsvinding in Divorce Cases Arising from Non-Fulfillment of Wife's Maintenance: Judicial Reasoning and the Protection of Women's Rights Risanna Aulia Adha Lubis; Fatahuddin Aziz Siregar; Putra Halomoan Hsb
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3485

Abstract

This study examines how Religious Court judges construct legal discovery (rechtsvinding) when a divorce suit is filed because of the husband's failure to fulfil his maintenance obligation - a question that earlier research has predominantly approached from a normative angle, without tracing how judges translate the abstract duty of maintenance into a legal ground for divorce. The object of study is Decision Number 164/Pdt.G/2023/PA.Pspk of the Padangsidimpuan City Religious Court, analysed through a normative juridical approach with a case study design that combines document analysis (primary, secondary, and tertiary legal materials) with interviews with court officials as key informants, processed qualitatively by content analysis and descriptive juridical analysis. The central finding is that the judge does not build an autonomous legal ground out of the maintenance obligation itself: through the qualification of facts and the interpretation of Article 19 letter (f) of Government Regulation Number 9 of 1975 in conjunction with Article 116 letter (f) of the Compilation of Islamic Law, the neglect of maintenance is absorbed into the concept of syiqaq, while the resulting harm is weighed against the fiqh maxim dar'u al-mafāsid muqaddam 'alā jalb al-maṣāliḥ. This construction shows that rechtsvinding in this case operates not in a legal vacuum but as a constructive interpretation within norms that already exist - a finding that enters the debate on how judicial reasoning distributes legal certainty and protects the maintenance rights of wives in Indonesian Islamic family law.
Malojongkon Boru in Angkola Batak Community: An Analysis of 'Urf and the Validity of Marriage in Islamic Law Erni Sulhati Roudho Siregar; Fatahuddin Aziz Siregar; Uswatun Hasanah
El-Faqih : Jurnal Pemikiran dan Hukum Islam Vol. 12 No. 2 (2026): EL FAQIH
Publisher : Institut Agama Islam (IAI) Faqih Asy'ari Kediri, , Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58401/faqih.v12i2.3549

Abstract

The study of Angkola marriage, dispute resolution through customs, the position of the marriage guardian, and the concept  of 'urf has tended to develop separately, while the practice  of Malojongkon Boru has not been studied empirically in the perspective  of classical and contemporary 'urf theory  . This study integrates empirical legal studies with the concepts  of 'urf ṣaḥīḥ and 'urf fāsid, and analyzes them through the perspective  of maqāṣid al-syarī'ah. The research was conducted in Padang Bolak Tenggara District, North Padang Lawas Regency, using an empirical approach and qualitative methods through interviews, observations, and documentation of traditional leaders, religious leaders, couples who have lived traditions, and their families. The findings show that the practice is driven by a variety of factors, including economic disparities, differences in social status, social sanctions, and women's consent formed under conditions of pressure, in addition to the problem of family rejection and high levels of synmomot. Malojongkon Boru still functions as a mechanism for resolving marital conflicts, but its implementation places customary authority ahead of the contract and delays the involvement of the marriage guardian, thus creating social conditions when the couple has not yet obtained formal recognition of the marriage. Based on these characteristics, this practice is closer to the category of 'urf fāsid, although its function of reconciliation still has social value. This research provides an empirical basis for assessing customary practices from the perspective of Islamic family law contextually.
Co-Authors Erni Sulhati Roudho Siregar Putra Halomoan Hsb Risanna Aulia Adha Lubis Uswatun Hasanah