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All Journal INTERNATIONAL JOURNAL OF CULTURAL AND SOCIAL SCIENCE El-Mujtama: Jurnal Pengabdian Masyarakat
Sarumpaet, Muhammad Idris
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Religion Humanities Economics, Econometrics & Finance Education Environmental Science Languange, Linguistic, Communication & Media Library & Information Science Social Sciences

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CONTRA LEGEM HADHANAH POST DIVORCE AGAINST CHILDREN WHO HAVE NOT BEEN MUMAYYIZ (Analysis of Decision No. 361/Pdt.G/2018/PA.Dps) Sarumpaet, Muhammad Idris; Lubis, Fauziah; Tanjung, Dhiauddin
International Journal of Cultural and Social Science Vol. 6 No. 3 (2025): International Journal of Cultural and Social Science
Publisher : Pena Cendekia Insani

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.53806/ijcss.v6i3.1107

Abstract

This study discusses the application of contra legem in the custody (?adhanah) decision following a divorce involving a child who has not yet reached the age of discernment (non-mumayyiz), with a focus on Decision No. 361/Pdt.G/2018/PA.Dps. The research concentrates on three main aspects: the custody rights of non-mumayyiz children, the impact of divorce on caregiving responsibilities, and the legal conflict in the application of custody laws. The method used is normative juridical research, emphasizing the analysis of statutory regulations, legal literature, and relevant legal concepts. The data sources include primary, secondary, and tertiary legal materials. The analysis is conducted qualitatively using juridical, sociological, and shar’i approaches. The findings indicate that Decision No. 361/Pdt.G/2018/PA.Dps is contra legem, deviating from the default legal provisions that assign ?adhanah to either the father or the mother. However, within the framework of Maq??id al-Shar??ah, custody was granted to the maternal grandmother based on legitimate shar’i grounds. Although the mother was deemed nasyuz (disobedient), and the father had a history of domestic violence, the court prioritized the child’s emotional welfare and stability. Therefore, placing the child with the maternal grandmother was considered the most appropriate choice to protect the child’s ma?la?ah (best interest) and fulfill the objectives of Islamic law (maq??id al-shar??ah). The decision aimed to safeguard the child’s life and intellect (?if? al-nafs and ?if? al-?aql). The ?illah qawiyyah (strong legal reasoning) in this case lies in the fact that both parents were deemed unfit, leading the judge to assign custody to the nearest capable relative — the maternal grandmother.
Analisis Proses Permohonan Perwalian atas Anak dari Saudara Kandung: Studi Putusan Nomor 375/PDT.P/2023/PA.SGM Sarumpaet, Muhammad Idris; Harahap, Yadi
El-Mujtama: Jurnal Pengabdian Masyarakat  Vol. 4 No. 5 (2024): El-Mujtama: Jurnal Pengabdian Masyarakat
Publisher : Intitut Agama Islam Nasional Laa Roiba Bogor

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.47467/elmujtama.v4i5.3723

Abstract

Until now, the process of adopting a child or transferring guardianship of a child is still rarely carried out by most people, especially if the child adopted is the child of a sibling or family member, even though legally the application for guardianship of a child is very important in fulfilling the applicable legal provisions. both in court and outside of court. So this research needs to be carried out in order to find out the process for applying for guardianship over children from siblings by studying Decision Number 375/PDT. P/2003/PA. SGM. This research is qualitative research with a normative juridical type of research, using two approaches, namely the statutory approach and the Conceptual Approach. The results of this research prove that legally the petition submitted by the applicant in Decision Number 375/PDT. P/2003/PA. SGM, has fulfilled the applicable legal provisions regarding guardianship applications in religious courts, and the applicant has also fulfilled the 4 (four) conditions that must be met by a guardian, namely, that he is mature and sensible, can be trusted with the child's welfare and is fair, and is able to carry out his duties as a guardian and also a believer.
Co-Authors Harahap, Yadi Lubis, Fauziah Tanjung, Dhiauddin