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All Journal Tasyri' Jurnal Hukum Islam
Aminudin, Sugeng
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Religion Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Pengaruh Motif Khulu’ Terhadap ’Iwadh Perspektif Kompilasi Hukum Islam (KHI) dan Fikih Madzhab Aminudin, Sugeng
Tasyri' : Journal of Islamic Law Vol. 3 No. 2 (2024): Tasyri'
Publisher : STAINI Press

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.53038/tsyr.v3i2.137

Abstract

This study discusses the influence of the khulu' motif on 'Iwadh in the perspective of the Compilation of Islamic Law (KHI) and madzhab fiqh. This study uses a literature method with a descriptive-historical approach, this study makes a comparison between the two perspectives. The findings show that the KHI does not distinguish between ordinary divorce and khulu' as applicable in Islamic law. KHI only regulates the khulu' ordinance without considering motives as the basis for determining 'Iwadh. On the other hand, madzhab fiqh expressly links the khulu' motive with ransom, such as khulu' without cause, because of the husband's tyranny, or because the husband troubles his wife. This affects the validity or not of khulu' and the halal or haram of 'Iwadh. From a legal point of view, Article 124 of the KHI states that khulu' must be based on the grounds of divorce according to Article 116, which can cause injustice to the wife if she still has to pay 'Iwadh to the husband who wronged her. In addition, Article 148 paragraph 6 of the KHI allows religious courts to decide the amount of the ransom if there is no agreement between the husband and wife, which can lead to injustice, especially if the husband is innocent.
Supreme Court's Decision Regarding the Prohibition of Interfaith Marriage and Its Relevance of Maqaṣid Al-Shari'ah Aziz, Abdul; Subhan Nugraha, Iqbal; Aminudin, Sugeng; Hakim, Lukman
Jurnal Hukum Islam Vol 22 No 1 (2024)
Publisher : Universitas Islam Negeri K.H. Abdurrahman Wahid Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28918/jhi_v22i1_8

Abstract

Interfaith marriage is still a debate, especially after the issuance of the Circular of the Supreme Court of the Republic of Indonesia concerning the prohibition of registration of interfaith marriages, which is considered to injure Human Rights. This research discusses the relevance of the Supreme Court's Decision on interfaith marriage with the principles of maqāṣid al-sharī'ah and its implications for the right to freedom of choice of partner. This normative legal research uses a legislative, conceptual, philosophical and case approach. The sources of legal materials are the Circular of the Supreme Court and several Supreme Court decisions related to interfaith marriages in the last three years. The results show that the ratio legis of the Circular of the Supreme Court of the Republic of Indonesia concerning interfaith marriage is to protect Human Rights in line with the principles of maqāṣid al-sharī‘ah such as protection of religion and descent, but on the other hand, it creates conflict with the principles of Human Rights which are also part of the principles of maqāṣid al-sharī‘ah. The researcher argues that the principle of maqāṣid al-sharī'ah should be able to balance religious values and Human Rights in interfaith marriages, by being used as the legal basis and policies related to interfaith marriages. This research can be used as a consideration for policy reform to realize balance and justice for the parties in line with the principle of maqāṣid al-sharī‘ah.
Co-Authors Abdul Aziz Lukman Hakim Subhan Nugraha, Iqbal