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All Journal Smart: Journal of Sharia, Tradition, and Modernity
Khairuddin, K.
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Religion Law, Crime, Criminology & Criminal Justice Social Sciences

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APPLICATION OF CONTRA LEGEM IN JUDGE DECISIONS (Critical Study of Iddah Alimony Rights in Divorce Cases) Maksum, Endang Ali; Suharto, S.; Khairuddin, K.; Zuhraini, Z.; Susanto, Is
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 1 June (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i1.9794

Abstract

The subject of this study is based on article 149 letters (b) Compilation of Islamic law which reads: ex-husband must provide maintenance, maskan, and kiswah to ex-wife during the iddah, unless the ex-wife has been granted talaq bain or nusyuz and is not pregnant. There are two barriers for an ex-wife to earn a living during the period of iddah, namely because the wife is divorced ba'in and or because the ex-wife is nusyuz. In general, the wife filed for divorce in court because she could no longer stand her husband's treatment of her. As a result of the law, if the wife who filed for divorce sues the Court, then the panel of judges will issue a divorce. Unless the husband violates the talaq. In the context of the wife falling into the act of nusyuz, generally as a result of the treatment and conduct of the husband towards the wife. If this is returned to the sound of the law then it will be very felt the injustice received by the wife (ex-wife). This study seeks to find the answer from the formulation of the problem "Why is contra legem important for the judge in deciding the case (inconcritoplaintiff) divorce with the decision of talaq ba'in and or proven in court nusyus wife's arbitrary because of the husband treatment of his wife? Materials and data are obtained by methods library research, the nature of the research is normative research. The goal to be achieved is to provide an alternative solution in providing justice and legal protection to women (ex-wives) who do not get iddah alimony because of filing a lawsuit or nusyus with a theory approach contra legem. Positive law in practice is not sufficiently able to accommodate the legal facts revealed in the Court, in another narrative it can be said that positive law always lags behind social reality. So in the legal system in Indonesia, the judge's ijtihad to deviate and or find the law is accommodated by the principle of Contra legemin order to provide justice and benefits to the community seeking justice, the judge needs to do contra legem.Keywords: Contra Legem; Iddah Livelihood; Divorce Lawsuit; Judge's Decision
REINTERPRETATION OF LIVELIHOODS IN MARRIAGE LAW AND ITS IMPLICATIONS ON FAMILY RESISTANCE IN THE TIME AND POST COVID-19 Mu'in, Fathul; Mukri, Moh.; Khairuddin, K.; Mahmudah, Siti
SMART: Journal of Sharia, Traditon, and Modernity Vol. 1 No. 2 December (2021)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v1i2.10965

Abstract

The rules regarding a living in Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law imposes the obligation to earn a living only on the husband. These two regulations create problems in society. Many wives demand a living from their husbands. Not a few wives also have jobs and income, but they are spent on their own needs, including for consumptive things, channeling hobbies and others because they think that fulfilling a living is not part of their obligations. This condition is coupled with the interpretation of a number of verses of the Qur'an and the traditions of the Prophet which are still patriarchal. The marriage law and a number of verses of the Qur'an and the Prophet's hadith need to be reinterpreted. This is because the development of an increasingly advanced era makes the role of women not only as wives who only take care of the household, but also as one of the contributors to the economy. This research uses the library research method. This study concludes that the livelihoods in these two laws and regulations need to be updated to be relevant to current conditions. Supposedly, the wife also has the same obligation in matters of livelihood. The reinterpretation of livelihood using the interpretation of mubadalah is to produce the principle of mutuality. The wife can even be the main breadwinner under certain conditions. This interpretation has implications for the fulfillment of the family's economy during the pandemic and post-covid-19 pandemic. Because, in difficult economic conditions, the wife participates in helping the family economy on a macro basis or even as the main provider in the household who changes places with her husband.Keywords: Reinterpretation, Livelihoods, Marriage Law, Family Resistance, Covid-19 
POSITION OF CHILDREN OUT OF MARRIAGE IN PERSPECTIVE OF PROGRESSIVE ISLAMIC LAW Ma'arif, Toha; Faisal, F.; Khairuddin, K.; Baihaqi, Yusuf
SMART: Journal of Sharia, Traditon, and Modernity Vol. 2 No. 1 June (2022)
Publisher : Universitas Islam Negeri Raden Intan Lampung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24042/smart.v2i1.13555

Abstract

Children born out of marriage are children born from marriages carried out according to their respective religions and beliefs. This understanding shows the existence of marriage, and if it is carried out according to the Islamic religion, then such a marriage is valid in the perspective of Islamic fiqh as long as it meets the requirements and pillars. Regarding to the position of children out of marriage, in 2012, the Constitutional Court issued a decision related to this matter which then raised pros and cons from various parties, both from legal practitioners, academics, the Indonesian Ulema Council, and even the community. Based on it, this research would like to examine more deeply related to the legal position of children out of wedlock in Indonesian legislation in the perspective of Progressive Islamic law. The type of research used is normative-empirical legal research using primary and secondary data, data analysis using qualitative descriptive and drawing conclusion using deductive thinking. The results showed that children out of marriage in the perspective of progressive Islamic law are children out of marriage have a kinship relationship with their father if born at least six months after marriage or within a grace period of four years after the marriage broke up provided it is evident that within four years their mother didn't excrete.
Co-Authors Faisal, F. Ma'arif, Toha Maksum, Endang Ali Moh. Mukri Mu'in, Fathul S. Suharto SITI MAHMUDAH Susanto, Is Yusuf Baihaqi Zuhraini