ADHKI: JOURNAL OF ISLAMIC FAMILY LAW

Islamic Family Law Reform in Indonesia: An Analysis of KH. Ahmad Azhar Basyir's Legal Interpretation Regarding the Irrelevance of Zihar

2024-01-13T13:45:31+07:00

Introduction: zihar is a tradition of the pre-Islamic Arab that has been reformulated by Islam and subsequently regulated in the Qur'an. However, not all countries incorporate zihar into their marriage laws; Indonesia is one such example. According to KH. Ahmad Basyir, this lack of regulation arises from the irrelevance of zihar to the customs and social conditions of the Indonesian community. Objective: This article aims to examine the reformulation of Islamic family law in Indonesia by exploring KH. Ahmad Basyir's method of istinbath concerning the relevance of zihar. Methods: This research is classified as normative legal research employing a conceptual approach. The primary data for this study comprises three works by KH. Ahmad Basyir that elucidate his method of istinbath: ‘Reflections on Islamic Issues Surrounding Philosophy, Law, Politics and Economics (1993)’, ‘Ijtihad in the Spotlight (1998)’, and ‘Islamic Marriage Law (1999)’. Secondary data includes journal articles, books, theses, and dissertations that discuss the contributions of KH. Ahmad Basyir. Data collection was conducted using the documentation method, and analysis was performed employing the Verstehen analysis method. Results: The findings of this study indicate the moral underpinning of zihar, which emphasises respect for wives, asserting that they must not be demeaned by their husbands, thereby representing an improvement over Arab cultural practice. This historical perspective illustrates that the application of zihar law is both local and temporal in nature, rendering it inapplicable across all social contexts. The moral underpinning, also referred to as the 'illat, should not be applied in Indonesia, which does not recognise the custom of zihar, in accordance with the principle ‘al-hukmu yaduuru ma'a al-'illati wujudan wa 'adaman’. Conclusion: Consequently, the provisions of zihar are deemed irrelevant in Indonesia, according to the views of KH. Ahmad Azhar Basyir.

Taklik Talak as a Safeguard for Women's Rights within the Family: A Hermeneutic Analysis of Legal Perspectives

2024-01-04T22:07:34+07:00

Problem statement: cases of violence against women within the family are becoming increasingly serious and must be addressed to ensure that women can secure their rights. The social construct of pre-Islamic Arab ignorance, which remains prevalent today, is a patriarchal system that positions women as second-class citizens, often violating the principle of ‘mutuality’ in family relationships. Legally, the state has established a framework for women's rights as legal subjects; however, this framework does not yet adequately address internal rights within family relationships. The presence of divorce by conditional stipulation (taklik talak), as one of the forms of legal redress currently being pursued, continues to evoke various perceptions and interpretations. Objective: therefore, this study aims to analyse the substance of the taklik talak text as a means of protection for women's rights within the family from a legal hermeneutic perspective. Methods: this research is classified as normative legal research with an analytical approach, examining the taklik talak text in the Marriage Book. Data collection techniques were conducted through a literature review employing a systematic descriptive analysis method from a legal hermeneutic perspective. Results: the findings of this study indicate that the substance of taklik talak historically aims to provide protection for women. Conclusion: based on the analysis from the legal hermeneutics perspective, the taklik talak text represents a commitment by the husband not to neglect his obligation to provide maintenance, not to abandon his wife, and not to cause her physical harm; thus, the agreement functions as a form of guarantee of women's rights for the preservation of marriage.

The Creed Theory in the Allocation of Inheritance Rights Pertaining to Inherited Property: A Gender Equality Perspective

2024-01-04T22:13:26+07:00

Problem Statement: The inheritance rights of spouses over personal property within an estate represent a complex and frequently contested issue in contemporary legal and social contexts. Although Islamic inheritance law (faraidh) governs these rights, their application in practice is often inconsistent, stemming from assumptions that spouses do not contribute to the acquisition of family wealth. Objective: This study seeks to examine the interpretation of faraidh in the context of principles of gender equality, particularly in cases involving spousal inheritance. Methods: Employing a qualitative normative legal method, this research analyses primary legal materials—specifically Islamic inheritance law and the Compilation of Islamic Law (KHI)—and is supported by secondary sources such as legal journals and empirical findings. Data were collected through literature reviews, in-depth interviews with key informants, and participant observations in inheritance disputes, particularly those involving withheld dowry (mahar). The study utilises the Credo theory and the essence of marriage as analytical frameworks. Results: The findings indicate that spousal inheritance rights, even in short-duration marriages, are valid within the faraidh framework and should not be disregarded. Furthermore, an interpretation of the Qur’anic verse Al-Nisa:12 reveals compatibility between Islamic inheritance law and gender equality. Conclusion: The study concludes that integrating a contextual understanding of marital relationships and gender justice into inheritance practices is essential to prevent discriminatory treatment and to uphold the legal rights of surviving spouses.

The Childfree Phenomenon: An Examination of the Interplay Between Traditional and Religious Values in the Malay Community of Jambi

2024-01-08T22:20:35+07:00

Problem statement: This study examines the responses of the Melayu Jambi community to the concept of being childfree, which refers to the intentional decision not to have children. This phenomenon prompts significant reflection on cultural norms, Islamic beliefs, and familial regulations. Objective: The research aims to understand how the rejection of the childfree concept influences the community's perspectives on tradition and religion. Methods: Employing a qualitative approach, the study utilises in-depth interviews and content analysis involving participants from the Melayu Jambi society, including religious and traditional leaders. Results: The findings highlight a pronounced rejection of the childfree perspective, with certain respondents emphasising the significance of familial values, lineage, and the responsibilities of parenthood as outlined by Islam, which form the foundation of Melayu Jambi's heritage. In terms of the interpretation of Islamic family law, this rejection arises from the belief that parenthood constitutes an essential aspect of a Muslim's responsibilities and obligations. Furthermore, this opposition reflects concerns regarding the long-term implications of the childfree ideology on families and communities. Conclusion: The study provides insights into the complexities of a society that dismisses the childfree concept as an effort to uphold enduring traditional and religious principles. It serves as a reflection of values that illustrate how this opposition signifies the community's aspiration to maintain steadfast views on family and parental roles in the face of evolving cultural and societal changes.

Contestation of Human Rights Values and the Protection of Women within the Mak-Dijuk Siang Tradition

2024-01-08T22:18:24+07:00

Problem statement: Issues pertaining to women's protection rights have ignited social debate within the framework of the mak dijuk siang tradition. This tradition, upheld by the indigenous people of Lampung, forbids divorce and conveys the moral message that marriage is sacred, noble, and honourable, thus necessitating its preservation until death separates the couple. Objective: This study seeks to investigate the underlying reasons for the conflicting values associated with the mak dijuk siang tradition among the indigenous Lampung community, as well as to evaluate the relevance of this tradition in the heterogeneous social context of the indigenous Lampung populace. Methods: A qualitative approach was employed for this study. Primary data were collected through interviews with a diverse range of informants, including community leaders, traditional leaders, and community members from the sub-districts of Anak Tuha, Gunung Sugih, and Bumi Ratu Nuban in Central Lampung Regency. Theories of justice and gender served as the analytical framework for data analysis. Results: The findings indicate that the prevailing social reality, which prioritises the protection of women and human rights, has led to a debate between traditional and contemporary values concerning the mak dijuk siang tradition. The middle ground in this value debate advocates for a dialectic between the principles of justice and equality in gender relations, grounded in human rights. Conclusion: The fact that women are seeking divorce through the Religious Court in an area with strong traditional ties to this practice demonstrates that the tradition is no longer uniformly upheld. This study advocates for the local government to continue recognising and promoting local customs that possess positive values for family resilience.