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All Journal DIKTUM: JURNAL SYARIAH DAN HUKUM Setyaki : Jurnal Studi Keagamaan Islam
Zul-kifli Hussin
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Religion Humanities Law, Crime, Criminology & Criminal Justice

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The Evolution of Fasakh in Indonesia and Malaysia: A Legal Comparative Bibliometric Review Deris Arista Saputra; Zul-kifli Hussin
DIKTUM: Jurnal Syariah dan Hukum Vol 23 No 1 (2025): DIKTUM: Jurnal Syariah dan Hukum
Publisher : Fakultas Syariah dan Hukum Islam Institut Agama Islam Negeri (IAIN) Parepare

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.35905/diktum.v23i1.11332

Abstract

Fasakh, a legal mechanism in Islamic family law, allows a wife to seek marriage annulment under specific conditions, differing from talaq, which is initiated by the husband. While both Indonesia and Malaysia recognize fasakh, their legal frameworks differ; Indonesia regulates it under the Compilation of Islamic Law (KHI) with significant influence from customary law (adat), whereas Malaysia enforces it through the Islamic Family Law Enactment, varying across states. This study aims to compare the legal, procedural, and socio-cultural dimensions of fasakh in both countries, employing comparative legal analysis through doctrinal research and bibliometric analysis using VOSviewer to map the evolution of fasakh-related studies from 2018 to 2024. The findings reveal that courts in both jurisdictions acknowledge domestic violence, financial neglect, religious conversion, contagious diseases, and fraud as primary reasons for fasakh, with an increasing recognition of psychological abuse and economic vulnerability as legitimate grounds. This study contributes to comparative Islamic legal scholarship by systematically analyzing fasakh across jurisdictions and introducing bibliometric analysis to trace its scholarly development, identifying emerging trends such as identity fraud, psychological abuse, and digital documentation in marital disputes. Additionally, the study underscores the role of ijtihad in expanding the interpretation of fasakh, aligning it with contemporary maqasid al-shariah (objectives of Islamic law) to ensure justice. Theoretically, the findings highlight the adaptability of Islamic jurisprudence in modern legal contexts, while practically, they provide insights for legal practitioners, policymakers, and religious authorities to enhance judicial consistency and improve access to legal aid for women seeking annulment. This study reinforces the necessity of balancing Islamic legal principles with evolving human rights perspectives, ensuring fasakh remains a protective mechanism within contemporary Muslim societies.
The Lineage Status of Children Born Out of Wedlock: A Comparative Analysis of Islamic Jurisprudence and Indonesian Law Deris Arista Saputra; Zul-kifli Hussin
SETYAKI : Jurnal Studi Keagamaan Islam Vol. 3 No. 3 (2025): AGUSTUS
Publisher : CV Kalimasada Group

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59966/setyaki.v3i3.2116

Abstract

The purpose of this study is to examine the legal status of children born out of wedlock by comparing the concept of lineage (nasab) in classical Islamic jurisprudence with its interpretation under Indonesian law. The issue is complex, situated at the intersection of religious doctrine, state law, and human rights. In Islamic legal tradition, lineage is established only through a valid marriage (nikah sahih), with children born outside marriage attributed solely to the mother in order to preserve the sanctity of marriage and the clarity of descent. By contrast, Indonesia’s legal framework experienced a significant transformation following Constitutional Court Decision No. 46/PUU-VIII/2010, which amended the Civil Code and the 1974 Marriage Law. The ruling allows children born outside marriage to establish a civil relationship with their biological father if paternity is proven through scientific evidence or acknowledgment. This judicial interpretation diverges sharply from the Compilation of Islamic Law (KHI), which continues to uphold classical fiqh principles. Employing a doctrinal and comparative legal methodology, this study analyzes primary sources including the Qur’an, Hadith, classical fiqh, the Indonesian Constitution, statutory law, the KHI, and the Constitutional Court’s ruling alongside relevant secondary literature. The findings reveal a persistent tension between Islamic law, which confines legitimate paternity to marital bonds, and Indonesia’s evolving legal orientation toward the protection of children’s rights and identity. This duality generates legal uncertainty and underscores the need for harmonization between religious and state frameworks. The paper concludes that a more integrative legal approach is required—one that reconciles Islamic principles with the universal imperative to safeguard every child’s rights and welfare, regardless of birth circumstances.
Co-Authors Deris Arista Saputra