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Shadri, Zukhrufil
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Religion Humanities Economics, Econometrics & Finance Environmental Science Law, Crime, Criminology & Criminal Justice Social Sciences

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Children Born Out of Adultery and Guardianship: The Bahtsul Masail Perspective on Old Marriage Cases Shadri, Zukhrufil; Azwar, Zainal
MAQASIDI: Jurnal Syariah dan Hukum Vol. 4, No. 2 (Desember 2024)
Publisher : MAQASIDI: Jurnal Syariah dan Hukum published by the Islamic Criminal Law Program of the Sharia and Islamic Economics Department at the Sekolah Tinggi Agama Islam Negeri Teungku Dirundeng Meulaboh

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.47498/maqasidi.v4i2.3691

Abstract

Marriage is a sacred institution in Islam whose validity is determined by fulfilling the conditions and pillars that the Sharia has set. One of the main pillars is the presence of a marriage guardian. In Islamic law, children resulting from adultery do not have a nasab relationship with their biological father, so the father does not have guardianship rights. However, cases of marriages where the biological father is the guardian often pose a legal dilemma, especially if the marriage has been going on for a long time. This study aims to analyze the legal status of biological paternity guardianship in the context of children resulting from adultery based on a cross-sect approach, focusing on the view of the Maliki School that provides flexible space for certain situations. This research uses a normative approach with a content analysis method on fiqh literature, Bahtsul Masail fatwa, and other sources of Islamic law. The results of the study show that according to the Shafi'i School, the guardianship of the biological father is not valid, so the marriage must be repeated with a legal guardian, namely the guardian of the judge. On the other hand, the Maliki school allows the guardianship of the biological father if it is openly recognized, with consideration for maintaining family benefits and social stability. This approach is relevant in certain situations and is supported by the principles of Maqashid Sharia, which include safeguarding religion (hifz al-din), heredity (hifz al-nasl), and avoiding social and economic damage (mafsadah). This study concludes that the adaptive application of ijtihad is needed to provide legal solutions that are relevant to the conditions of contemporary society, without ignoring the principles of Islamic law.
Nikah Gantung in Legal and Social Discourse: The Contestation of Legality between State, Religion, and Custom Shadri, Zukhrufil; Rintia, Rintia; Shakil, Md Shahidur Rahman
Journal Governance Society Vol. 2 No. 2 (2025): August, 2025
Publisher : CV. Austronesia Akademika

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.69812/jgs.v2i2.159

Abstract

ABSTRACT Nikah gantung is a marriage practice that is religiously valid, yet the couple does not live together or fulfill domestic obligations such as financial support. This phenomenon is commonly found in several traditional communities in Indonesia, primarily as an effort to preserve family honor, avoid premarital sex, or due to economic reasons. However, behind this practice lies a serious discrepancy between religious norms, customary law, and state legal regulations—particularly in terms of marriage registration, legal protection, and minimum marriage age. This study aims to critically analyze the tension among religious, customary, and state institutions in defining the legality of nikah gantung. It also explores how the power relations among these three institutions shape the meaning of what constitutes a "valid" marriage, and how this affects the protection of women's and children's rights. The method used is a qualitative literature study with a critical discourse analysis approach. Data were obtained from previous studies on nikah gantung, Islamic family law, civil law, and anthropological research on customary practices. The analysis applies Michel Foucault’s theory of power, particularly the concepts of governmentality, regime of truth, and symbolic discipline. The findings reveal that marriage legality in the context of nikah gantung is not neutral, but rather the result of competing discourses: the state demands administrative certainty, religion emphasizes sacred legitimacy, and customary norms operate through shame and honor. This research concludes with a call for a more integrative, just, and rights-oriented approach to family law that respects cultural diversity.
Co-Authors Azwar, Zainal Rintia, Rintia Shakil, Md Shahidur Rahman