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All Journal Istinbath: Jurnal Penelitian Hukum Islam
Mustopa Kamal
Institut Agama Islam Darussalam (IAID) Ciamis, Indonesia
Religion Humanities Law, Crime, Criminology & Criminal Justice

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FASAKH PERKAWINAN KARENA ALASAN CACAT BADAN MENURUT PANDANGAN WAHBAH AZ-ZUHAILI DAN IMAM MADZHAB Icep Maulana Mansur Hidayat; Mustopa Kamal; Ahmad Nabil Atoillah
Istinbath | Jurnal Penelitian Hukum Islam Vol 13 No 2 (2018): Istinbath, November 2018
Publisher : Fakultas Syari'ah | Institut Agama Islam Darussalam | IAID | Ciamis, Jawa Barat, Indonesia

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Abstract

Every household is not always peaceful, there are always problems that occur in it and often choose divorce as the final solution. One of the factors causing divorce is that one of the husband and wife finds a defect in their partner. Disability is one example of the reason why household life is no longer harmonious, because the interaction between husband and wife will be hampered, causing one party not to carry out their obligations. The principle of Islamic marriage law states that the marriage bond must not cause suffering to a partner or cause him to violate the boundaries set by Allah. If there is no option to terminate marriage for the aforementioned reasons to result in suffering to the normal partner, there is also the constant danger that hatred and sexual urges could cause the normal partner to violate God's provisions. These incidents resulted in the wife's complaint to the Religious Court to settle the case. In the Islamic view, divorce is not only the right of a husband but also the right of a wife, in this case it can be done by the wife by way of fasakh. The objectives of this study were: 1) To find out Wahbah Az-Zuhaili's views on the principles of marriage due to physical disabilities; 2) To find out Wahbah Az-Zuhaili's reasons regarding the fasakh of marriage due to physical disabilities; 3) To find out the views of Imam Madzhab on the principles of marriage for reasons of disability. This research uses qualitative research with content analysis method. While the data collection technique used is library research (library research). After the data has been collected, it is analyzed in stages: a) Data collection; b) Data reduction; c) Display data. This study resulted in the following conclusions: 1) Wahbah Az-Zuhaili allowed to sue fasakh due to a disability in one of the husband and wife. Separation must be made by the judge based on the complaint from the aggrieved party. For the defect which is used as the reason for this fasakh, Wahbah Az-Zuhaili has clearly specified and is very relevant to the advancement of the medical world; 2) The reason refers to the opinion of the four Imam Madzhab, Syi'ah Imamiyah, the Egyptian Law and the Syrian Law; 3) Two views of the Imam Madzhab regarding the principles of marriage for reasons of disability. First, the Zahiriyah Madzhab which states that they are defective cannot be used as an excuse for fasakh. Second, the view of the majority of Imam Madzhab that states that defects can be used as an excuse for fasakh, but they disagree over two things, namely about the right of who can sue fasakh and the details and limitations of defects that can be used as reasons for fasakh.
DISPENSASI NIKAH DALAM UNDANG-UNDANG NOMOR 1 TAHUN 1974 DAN UNDANG-UNDANG NOMOR 35 TAHUN 2014 Reni Nuraeni; Mustopa Kamal; Ila Nurmila
Istinbath | Jurnal Penelitian Hukum Islam Vol 13 No 2 (2018): Istinbath, November 2018
Publisher : Fakultas Syari'ah | Institut Agama Islam Darussalam | IAID | Ciamis, Jawa Barat, Indonesia

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Abstract

In Law No. 1 of 1974 concerning Marriage, there is a regulation regarding the age of marriage, namely Article 7 Paragraph 1 which states that marriage is permitted if the man has reached the age of 19 years and the woman is 16 years. However, in other articles there are exceptions, namely being allowed to marry under the stipulated age provided there is parental consent and dispensation from the court as stipulated in article 7 Paragraph 2. However, on the other hand, Law No. 35 of 2014 concerning Child Protection provides regulations by requiring parents to prevent marriage at the age of children as stated in Article 26 Paragraph 1 letter c. Every child who is not yet 18 years old must receive protection for their rights and welfare. Therefore, dispensation in a marriage is a phenomenon that must receive serious attention, because this will have an impact on the achievement of the goal of marriage, namely the realization of the sakinah mawaddah warahmah family. This study uses a descriptive analysis method with a normative juridical approach, namely a statute approach, with a research starting point for analysis of statutory regulations. While the data collection technique used is library research (library research) by utilizing various libraries that are relevant to the social phenomena under study. This research resulted in the following conclusions: 1) Marriage dispensation in Law No.1 of 1974 concerning Marriage is contained in Article 7 Paragraph 2, namely in case of deviations from paragraph 1 of this article, dispensation may be requested from the Court or other official appointed by the two parents; 2) One of the child protections in Law no. 35/2014 concerning Child Protection as stated in Article 26 Paragraph 1 letter c, namely that parents are obliged and responsible to prevent marriage at the age of children with the aim of realizing children's welfare through child protection; 3) The two regulations are contradictory, even though the two laws were made by the same legal entity, namely the DPR. This means that there must be a synchronization of the regulations of the two regulations that apply in Indonesia, considering that children are an important and main asset for the survival of life.
Co-Authors Ahmad Nabil Atoillah Icep Maulana Mansur Hidayat Ila Nurmila Reni Nuraeni