Paradigma fikih baru Jamal al-Banna dan relevansinya terhadap pembaruan peran perempuan dalam hukum keluarga Islam (Fiqh al-Munakahat)

The role of women, according to classical fiqh (Islamic law) literature, especially fiqh al-Munakah}at (Islamic family law), tends to be regarded as a complementary part of domestic life. Their role is limited to the domestic territory, and restrain to play a public role. This paper tries to reconstruct the role of women in Islamic family law, utilizing the new fiqh paradigm initiated by Jamal al-Banna. To answer this problem, the author conducted a literature study by examining two works of Jamal: Nah}wa Fiqhin Jadid and Al-Mar'ah al-Muslimah bayna Tah}rir Al-Qur'an wa Taqyid al-Fuqaha'. This paper concludes that some issues regarding the role of women in Islamic family law need renewal. There are four crucial issues that are reviewed using the new fiqh paradigm of Jamal al-Banna, namely the minimum age of marriage, wali’s ijbar rights, polygamy, and divorce.

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Perempuan Sebagai Anak dan Hak-Haknya dalam Perkawinan (Studi terhadap Peraturan Perundang-undangan dan Praktek di Pengadilan Agama)

JURNAL INDO-ISLAMIKA ◽

10.15408/idi.v2i1.1660 ◽

2012 ◽

Vol 2 (1) ◽

pp. 125-147

Author(s):

Fatima Fatima

Keyword(s):

Family Law ◽

South West ◽

Minimum Age ◽

Islamic Family Law ◽

Age Of Marriage ◽

Religious Courts ◽

Central South ◽

Islamic Courts

This paper aims to investigate how women or girls as daughters are administered in Islamic family laws and how they are awarded rights in regard to marriage. It also analyses how judges at Islamic courts solve the cases involving women as daughters. It, therefore, discusses how, according to Indonesian Islamic family law, women, as daughter could obtain permissions to get married when their parents are reluctant to marry them. It also discusses how they have also right to obtain permission to get married although they have not reached the minimum age of marriage. Investigating a number of judgments from Islamic courts of Central, South, West and East Jakarta and using socio-legal approach, this paper reveals that the proposal for marriage dispensation by parents at religious courts increased from year to year and that the proposals were often approved by judges. It also demonstrates that judges mostly conclude that the reluctance of parents to marry their daughters is based on legal reasons so that judges often decide to appoint ‘wali hakim’, as a substitute to ‘wali nasab’.

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PROTECTION OF WIFE’S RIGHT TO MAINTENANCE IN ISLAMIC LAW AND ITS IMPLEMENTATION IN THE MALAYSIAN ISLAMIC FAMILY LAW

IIUM Law Journal ◽

10.31436/iiumlj.v21i2.102 ◽

1970 ◽

Vol 21 (2) ◽

Author(s):

Mansur Isa Yelwa

Keyword(s):

Significant Role ◽

Legal System ◽

Islamic Law ◽

Family Law ◽

Legal Framework ◽

Statutory Law ◽

Islamic Family Law ◽

Legal Implication

Islamic law guarantees the protection of married women’s right to maintenance upon their husbands. The significant role of maintenance in the continuity of the marriage union in Islamic law cannot be overemphasised. The Malaysian statutory law in this context is indeed a model. The Constitution’s mandatory prescription for the application of Islamic family law on Muslims is an awesome feature. The Islamic Family Law Act is a replica of the classical texts for easy application. This paper presents the legal framework on maintenance law in Muslim marriages and the legal implication of its violation. Emphasis is laid on the classical texts of Shari’ah from the Qur’an, Sunnah and juristic opinions. Statutory and judicial authorities from the Malaysian legal system are referred to, where applicable. It is observed that the preponderant view among the four Sunni Schools is that of the majority, and interestingly, is the applicable ruling in the Malaysian family law. ABSTRAKUndang-undang Islam menjamin perlindungan kepada hak wanita-wanita yang telah berkahwin terhadap nafkah oleh suami-suami mereka. Kepentingan peranan nafkah di dalam kesinambungan sesuatu ikatan perkahwinan di bawah undang-undang Islam tidak boleh terlalu ditekankan. Di dalam konteks ini, statut perundangan di Malaysia boleh dijadikan model. Penetapan mandatori Perlembagaan berkenaan dengan pemakaian undang-undang keluarga Islam kepada orang-orang Islam adalah merupakan satu ciri yang sangat menarik. Akta Undang-Undang Keluarga Islam merupakan satu replika bagi teksteks klasik untuk pemakaian yang lebih mudah. Kertas kerja ini membentangkan rangka perundangan bagi undang-undang nafkah di dalam sesuatu perkahwinan orang Islam dan akibat perundangan jika ianya tidak dipatuhi. Penekanan diberikan kepada teks-teks klasik Shari’ah berdasarkan al-Quran, Sunnah dah pendapatpendapat juristik. Rujukan dibuat kepada statut dan penghakiman daripada sistem perundangan Malaysia. Adalah diamati bahawa pendapat yang lebih berpengaruh daripada keempat-empat Mazhab ialah pendapat majoriti, dan menariknya, merupakan peraturan yang terpakai di dalam undang-undang keluarga di Malaysia.

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Hukum Keluarga Islam Di Brunei Darussalam

Al-Qadha ◽

10.32505/qadha.v8i1.2275 ◽

2021 ◽

Vol 8 (1) ◽

pp. 1-12

Author(s):

Arif Sugitanata Arif

Keyword(s):

Qualitative Study ◽

Islamic Law ◽

Family Law ◽

Science And Technology ◽

Economic Globalization ◽

Gender Issues ◽

Law Reform ◽

Brunei Darussalam ◽

Minimum Age

This article tries to explain how to reform the field of Islamic family law in Brunei Darussalam while at the same time describing the background and product of family law reform itself. The data used in this study is a qualitative study, then the method used is descriptive-analytical. With conclusions that include, first, family law is a law that has provisions on the territory of family members within the scope of the household which includes certain fields such as marriage, descent, maintenance, hadhanah, guardianship, and inheritance. Second, the background of the birth of Islamic law reform that occurred in this era was caused, among other things, to fill the legal vacuum because the norms contained in the fiqh books did not regulate it, while the legal needs of society continued to grow, the influence of economic globalization and science and technology, the influence of reforms. in various fields that provide opportunities for Islamic law to become a reference in national law, the influence of reforming Islamic legal thought, both by foreign Islamic law experts and national Islamic law experts, especially regarding the development of science and technology as well as gender issues and thirdly, the product of family law reform in Brunei Darussalam is divided into two scopes, namely munakahat and Mawaris, where part of the munakahat itself includes, Marriage Registration, Minimum Age Restriction for Marriage, Role of Marriage Guardian, Polygamy, Divorce, Khulu', Rujuk. Whereas in Mawaris it includes mandatory wills.

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Positivisasi Hukum Keluarga Islam sebagai Langkah Pembaharuan Hukum Islam di Indonesia: Kajian Sejarah Politik Hukum Islam

Al-Manahij Jurnal Kajian Hukum Islam ◽

10.24090/mnh.v13i2.2692 ◽

2019 ◽

Vol 13 (2) ◽

pp. 243-257

Author(s):

Nurul Ma'rifah

Keyword(s):

Islamic Law ◽

Family Law ◽

The Other ◽

Law Reform ◽

The Political ◽

Old Order ◽

The Reformation ◽

History Of ◽

Islamic Family Law

This paper discusses the making Islamic family law a formal law in the perspective of the political history of Islamic law in Indonesia, which cannot be separated from the role of the regime since the beginning of the Old Order era. In this era, the regime showed its alignment with the renewal of Islamic law. However, when the regime was not as firm and tended to be democratic, as it was during the Reformation era, Islamic family law reform tended to be stagnant. On the other hand, the history of Islamic family law renewal also experienced ups and downs because it is affected by political configurations, in which Indonesian Muslims attitudes could be classified into progressive and Islamist groups. Progressive groups try to fight for the renewal of Islamic family law contextually; whereas Islamist groups are more textual in responding to Islamic family law reform.

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Islamic Family Law Reform: Early Marriage and Criminalization (A Comparative Study of Legal Law in Indonesia and Pakistan)

Al-Ahkam Jurnal Ilmu Syari’ah dan Hukum ◽

10.22515/al-ahkam.v4i2.1667 ◽

2019 ◽

Vol 4 (2) ◽

Author(s):

Fatum Abubakar

Keyword(s):

Islamic Law ◽

Family Law ◽

Married Couples ◽

Early Marriage ◽

Law Reform ◽

Child Marriage ◽

Marriage Law ◽

Minimum Age ◽

Age Of Marriage

In this paper I want to compare of legal law in Indonesia and Pakistan about early marriage. In Indonesia, marriage law No. 1/ 1974 explained that the limit of age of marriage is sixteen (16) years for women and nineteen (19) years for men. In Pakistan, after the 1961 MFLO amendment, Pakistan established the minimum age of marriage under the Child Marriage Restraint Act, 1929, is eighteen (18) years for men and sixteen (16) years for women. In addition to Law No. 1 of 1974, in Indonesia, the KHI is clearly repeating Article 15 Paragraph (2), for candidates who have not reached the age of 21 years, they must obtain permission as provided in Article 6 Paragraph (2), (3), (4), and (5) of Law No. 1 year 1974. Otherwise, in Indonesia this regulation is slower than other perversions country that I mention. The questions in this paper are; first, why does the legislation of Indonesia provides dispensation of marriage in the Court for prospective couples under the age of marriage? Second, why does Pakistan's legislation give prison sanctions and penalties for married couples under the age of marriage? Thirdly, why does the legislation of Indonesia and Pakistan implement different determination of law for early marriage? The conclusion; if both prospective brides are still below the minimum age for marriage, the parents of the two brides-to-be may submit a marriage dispensation in a religious court. Dispensation of this marriage is regulated in Minister of Religious Affairs Regulation No. 3 year 1975, specifically for people who are Moslems. This matter the marriage law also provides an outlet as a solution if the minimum age requirement is not met. Otherwise, In Pakistan, Historically; the marriage of children is in conflict between those who feel established and those who want change by reforming their family law. So, MFLO 1961 came out of the outcome of the change of the Child Marriage Restraint Act 1929 to sanction marriage with fines and imprisonment for married couples who are married under the minimum age set for marriage. Even sanctions are given for parents, guardian, and marriage organizers as well as even more than the sanctions given to his son. Even if the renewal of Islamic law in the Indonesia have been done. Indonesia is somewhat late in doing Islamic law reform than Pakistan.

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PERAN SAYYIDAH ‘AISYAH DALAM PEMBENTUKAN HUKUM ISLAM BERWAWASAN GENDER

EGALITA ◽

10.18860/egalita.v0i0.2111 ◽

2012 ◽

Author(s):

Ahmad Izzuddin

Keyword(s):

Social Welfare ◽

Gender Inequality ◽

Islamic Law ◽

Middle Age ◽

Early Age ◽

The Family ◽

The Law ◽

Role Of Women ◽

Law Construction

Islamic law and women are one of mostly debated discourses bycontemporary Islamic thinkers particularly those who are gender issuesproponents. That discourse grows due to the accuse towards Islam thatthis religion is the source of gender inequality for women through outmuslim world especially in education, fairness and domestic freedom aswell as social welfare in the family. The assumption is that Islamic law ismale-based law. Therefore, it is a need to explore the note on Islamic lawdevelopment which is perceived from the role of women in the early age oflaw construction not from the aspect of the thought of classical ulama inthe middle age. This paper tries to explore and to discuss mainly the role ofSiti Aisyah as the teacher and the transmitter of hadith as the foundation ofIslamic law construction to underline women’s position and contributionas the law maker that it will prove that Islamic law is not merely men-basedlaw as the assumption grows.

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THE PRINCIPLE OF SELF SUBMISSION IN DIVORCES CASES FROM THE PERSPECTIVE OF LEGAL CERTAINTY

Trunojoyo Law Review ◽

10.21107/tlr.v2i1.9496 ◽

2020 ◽

Vol 2 (1) ◽

pp. 63-78

Author(s):

Haqqiyah Uthlufah

Keyword(s):

Islamic Law ◽

Family Law ◽

Analytical Tool ◽

Legal Interpretation ◽

Legal Certainty ◽

Marriage Law ◽

Legal Research ◽

Divorce Law ◽

Islamic Family Law ◽

Materials Used

The problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law. What cannot be separated from Islamic law is Islamic family law because it is related to the faith of a Muslim. Islamic family law can only apply to Muslims and cannot apply to non-Muslims. The problem of the principle of submission to the divorce law was incomplete (incomplete norm) or the existence of a legal vacuum (vacuum of norm) in marriage law in Indonesia. This research is a legal research and is normative in nature. The approach used is statutory, case, and conceptual. The legal materials used are primary, secondary and tertiary. The method of collecting legal materials is first to qualify the facts and then to qualify the law. The analytical tool used is legal interpretation in the form of principal, systematic and grammatical interpretation.

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AN APPRAISAL OF THE APPLICATION OF FIQH AL-HANAFI UNDER ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

IIUM Law Journal ◽

10.31436/iiumlj.v27i2.459 ◽

2019 ◽

Vol 27 (2) ◽

pp. 317-336

Author(s):

Azizah binti Mohd

Keyword(s):

Qualitative Method ◽

Islamic Law ◽

Family Law ◽

The State ◽

Muslim Country ◽

Kuala Lumpur ◽

Library Research ◽

Identification Card ◽

Islamic Family Law

Malaysia is a Muslim country consisting of thirteen States and Federal Territories (Kuala Lumpur, Labuan and Putrajaya). In principal, the official madhhab that is practised in Malaysia is Shafi’i Madhhab and this becomes common to all Malaysians even though it is not officially registered in the identification card of a Malaysian. Accordingly, in many religious affairs and practices, the society is based upon the principles or fiqh al-Shafi’i. Nevertheless, views of other Sunni madhhab is freely practiced by all Malaysians. Furthermore, the codification on Islamic law in the State Enactments in all States in Malaysia is based upon four Sunni schools of law. It follows that the Islamic law in Malaysia is not purely based on the Shafi’i madhhab and in many occasions adopted the view of Hanafi school depending on the adaptability of the opinion to the society. This article deals with the application of fiqh al-Hanafi under the Islamic Family Law (Federal Territories) Act 1984. Analysis will extend to the practices in the Malaysian Syariah Court when dealing with cases involving Muslims and the most appropriate view of the madhhab that is to be adopted by the Syariah Court in order to solve a particular issue. The study employs the qualitative method of study where it only involves library research. It is believed that this research will be beneficial to all who seek knowledge and useful to all researchers, academicians, legal practitioners, students and scholars.

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Status dan Hak Anak Tak Sah Islam dalam Undang-Undang di Malaysia

Sains Humanika ◽

10.11113/sh.v10n3-4.1539 ◽

2018 ◽

Vol 10 (3-4) ◽

Cited By ~ 1

Author(s):

Zanariah Noor

Keyword(s):

Islamic Law ◽

Family Law ◽

Civil Law ◽

Birth Certificate ◽

Biological Father ◽

Self Identity ◽

Illegitimate Child ◽

Content Analysis Method ◽

The Status ◽

Islamic Family Law

Illegitimate child refers to a child conceived during sexual intercourse outside of wedlock. The jurists have different views regarding the gestation period of pregnancy that affects the legitimacy status of the child. The objective of this article is to analyze the different views of the jurists regarding the status as well as rights of the illegitimate child in Islam and current religious ruling implemented in Malaysia. This article also analyzes the rights of the illegitimate child towards a personal identity that involved lineage that effects on how his/her name and surname will be stated on birth certificate according to the Islamic and civil law in Malaysia. Issues on custody, maintenance, marriage guardianship of the illegitimate child and his/her relation with biological father that married to his / her mother will also be discussed according to the opinions of the jurists as well as Islamic family law in Malaysia. This study utilized content analysis method on discussions put forward by the jurists in authoritative jurisprudence books as well as contemporary jurisprudence books and law provisions that are provided in Islamic and civil law implemented in Malaysia to date. The findings show that Islamic family law protects rights of the illegitimate child in terms of self-identity (lineage), custody, maintenance and marriage guardianship. However, the issue regarding the surname of the illegitimate child was raised in Civil Court, arguing that he/she should be allowed to be named to his/her biological father who had married the mother. This issue needs to be scrutinized. The amendment should be carried out so that matters related to the Muslims' personal laws are implemented according to the Islamic law.

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