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All Journal DE JURE Arena Hukum JURISDICTIE Jurnal Hukum dan Syariah Sriwijaya Law Review Jurnal Penelitian Agama Journal of Islamic Business Law Jurnal Kajian Hukum dan Sosial
Khoirul Hidayah
UIN MAulana Malik Ibrahim Malang
Religion Humanities Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice Social Sciences

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Rethinking Marriage Guardians for Widows in Indonesia : Perspective of Legal Certainty and Maslahah Theory Ahmad Suryana; Khoirul Hidayah; Muhammad Muhammad
Justicia Islamica Vol 22 No 1 (2025)
Publisher : Faculty of Sharia UIN Kiai Ageng Muhammad Besari Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21154/justicia.v22i1.9990

Abstract

The issue of marriage guardianship (wali nikah) for widows remains crucial in Indonesia.  BPS 2022 data shows over 13 million widows (cerai mati) and 2.7 million divorced women (cerai hidup). He absence of explicit regulation in Article 14 of KHI creates legal uncertainty, often leading widows to unregistered marriages (nikah sirri), risking their legal protection and rights. It is at this point that the study of this article aims to examine more deeply the stipulation of the “marriage guardian” requirement for widows in the Compilation of Islamic Law, reviewed according to the theory of legal certainty and benefit. At the same time, this article also aims to identify and analyze the form of reformulation of the provisions of marriage guardianship for widows according to the theory of legal certainty and legal benefit. The research method used in this article is a qualitative prescriptive method with a normative juridical approach, utilizing legal interpretation and literature review. The findings indicate that Article 14 of the Compilation of Islamic Law does not explicitly regulate the marriage guardian for widows, causing legal uncertainty and increasing unregistered marriages (nikah sirri), which result in unclear legal status and administrative obstacles. The study recommends the reformulation of clear and fair provisions affirming the widow's authority in marriage, ensuring legal certainty and alignment with the principles of Islamic law and national legal norms. The contribution of this article lies in offering a specific legal reformulation of Article 14 of the KHI regarding the marriage guardian for widows.
The Ngarunghal Tradition in Sundanese Marriage Salsabila Fajrina Dhia; Khoirul Hidayah; Ahmad Izzuddin
Jurnal Penelitian Agama Vol. 27 No. 1 (2026)
Publisher : LPPM UIN Saizu Purwokerto

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24090/jpa.v27i1.2026.pp168-178

Abstract

The ngarunghal tradition is a customary practice in Sundanese society that regulates the prohibition of a younger sibling marrying before their older sibling without a certain form of respect. This study aims to analyse the function of the ngarunghal tradition as living law in the Miduana Traditional Village community and to examine this practice from the perspective of legal anthropology and maslahah mursalah theory. This study uses empirical research methods with a legal anthropology approach and is qualitative in nature. Data was obtained through field observations, in-depth interviews with traditional leaders, community leaders, and practitioners of the ngarunghal tradition (older siblings, younger siblings, and immediate family), as well as supporting documentation. The results show that the ngarunghal tradition functions as a customary norm that regulates family relations and maintains social harmony through a mechanism of deliberation and family agreement, including in determining the form and amount of gifts to be given to the older sibling who is being bypassed. This practice is adhered to by the community, mainly to avoid taboos and customary sanctions known as kabadi or katulak, which are understood as symbolic consequences for violating customs. From a legal anthropology perspective, belief in these sanctions acts as an effective social control mechanism, even though it is not formal in nature. From the perspective of maslahah theory, the ngarunghal tradition contains social benefits that are hajiyyah and 'ammah in nature, as it aims to maintain order, family harmony, and social balance in the community. However, this study also found the potential for a shift from benefit to injustice if the demands for gifts do not take into account the economic capacity of the younger sibling. Therefore, the ngarunghal tradition remains relevant to be preserved as long as it is carried out based on the principles of deliberation, fair agreement, and does not cause harm.
Co-Authors Ahmad Izzuddin Ahmad Suryana Farahsyinta Gladisia Puspa Fardiana Fithratin Najizah Iffaty Nasyiah Iffaty Nasyi’ah Jazilatul Khoiriyah Jundiani Jundiani Lin Lie Bintan Illa Moch Agung Suluq Muafa Mohd Hazim bin Borhan Muhammad Muhammad Ramadhita Ramadhita Salsabila Fajrina Dhia