scholarly journals The Maqāṣid Analysis on the Nafkah Iddah of Divorce Lawsuit in the Compilation of Islamic Law (KHI) Article 149 (b) and the Supreme Court Verdict Number 137/K/AG/2007

2020 ◽  
Vol 1 (1) ◽  
pp. 91
Author(s):  
Julia Julia
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Legal Basis ◽  
Additional Finding ◽  
The Supreme Court

This article examines the nafkah iddah of divorce lawsuit in the Islamic Law Compilation (KHI) Article 149 (b) and the verdict issued by the Supreme Court Number 137/K/AG/2007. It also analyses their legal basis based on the Jasser Auda’s maqāṣid al-sharī’ah approach concerning the preservation of life and treasure. The primariy objective of this article is to find the main differences between the KHI and the Verdict in determining the nafkah iddah of divorce suit. Although some scholars have concerned about the case of nafkah iddah, the Jasser Auda’s maqāṣid al-sharī’ah approach seems to be rare to be dealt with the case. Accordingly, the maqāṣidi approach will be mainly utilised in order to consider the effectiveness of both the KHI and the Verdict. This article finds that the KHI states that a wife who applies for a divorce is considered disloyal. As a consequence, she is undeserving of receiving nafkah iddah. The additional finding is that the Verdict decides that in the case of the divorce filled by the ex-wife, it brings a responsibility for the former husband to pay the nafkah iddah. From the perspective of maqāṣid al-sharī’ah, this article argues that the implementation of the Verdict gains better benefit rather than the KHI, because the legal basis evolved for the nafkah iddah of divorce suit is in line with the maqāṣid principles of the preservation of life and property. In the particular case, the principles tend to protect the ex-wife’s safety and welfare after the divorce.

scholarly journals Khol’â (the dislocation): An Analytical View of the Supreme Court’s Judges Compared to Islamic Jurisprudence

2021 ◽  
pp. 1-17
Author(s):  
Samir Chihani ◽  
◽  
Kaci Si Youcef ◽  
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Comparative Method ◽  
Legal Basis ◽  
Analytical Methodology ◽  
The Supreme Court ◽  
The Family ◽  
Islamic Jurisprudence ◽  
Family Code ◽  
Marital Union

The Algerian legislator has developed several ways and methods to release the marital union. One of these is the Khol’â or the dislocation whereby the woman requests divorce from her husband in exchange for money that she offers to him. If the husband accepts both Khol’â or the dislocation and the offer, then there is no problem. In case he accepted the dislocation and rejected the offer, the judge would have to determine the allowance on the basis of the dowry of similar cases. Before the amendment of the family code in 2005 and due to the lack of clarity in the text, the judges’ opinions differed if the husband refused dislocation altogether. A woman may request Khol’â before completing the physical marriage procedures, that is, before consummation, and here we face the problem of the judges ’response to her request. This research paper aims to clarify the truth of what judges in general, and Supreme Court justices in particular, have said, regarding whether Khol’â is considered a pure right for women or men had a share in it. And, whether it is really not valid to divorce before consummation because it violates either the law or the provisions of Islamic law. In our research, we have used the descriptive and analytical methodology, in addition to the comparative method. At the end we have deduced that the judges used to stipulate the husband’s consent for the Khol’â. But now they have established that it is a pure right for women, especially after amending Article 54 of the family law. They are also almost unanimous in the non-permissibility of Khol’â before consummation, while the Supreme Court is settled on that. We have come to the conclusion that this does not have a legal basis, that means there is no text that prohibits it not even in Sharia, as the jurists of the four schools are all agreed upon its validity.

scholarly journals Antara Hukum Islam dan Adat; Sistem Baru Pembagian Harta Warisan

2020 ◽  
Vol 5 (2) ◽  
pp. 166-180
Author(s):  
Fatahuddin Aziz Siregar
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Field Research ◽  
Customary Law ◽  
Total Change ◽  
Positive Law ◽  
The Supreme Court ◽  
The Status ◽  
Using Data ◽  
Adat Law

The South Tapanuli community adopts a patrilineal kinship system so that women do not get inheritance, even if there is acquisition of property, women receive it not in their capacity as heirs but in the form of holong ni ate as confirmed in the Supreme Court Jurisprudence number 506K / Sip / 1968 dated January 22, 1969 However, on the other hand the Tapsel community underwent a process of Islamization that was quite deep, so that the customary law of South Tapanuli was also influenced by positive law including Jurisprudence which gave heir to girls later issued by the Supreme Court number 528K / Sip / 1972 dated 17 January 1973. This rule makes the practice of distributing the assets of Tapsel's community inheritance also shifts no longer according to the full provisions of adat law.This paper focuses on answering the factors that cause the shift in Batak customary inheritance in Tapsel, how the form of Batak adat inheritance shifts in Tapsel, and how the role of Islamic law in the shifting Batak customary inheritance in Tapsel. To answer this, use descriptive-analytical field research using data collection techniques in the form of observations and interviews with traditional leaders, religious leaders, judges and the community who carry out the distribution of inheritance.From this search, the authors found that the practice of inheritance in Tapsel society has shifted from adat inheritance caused by two factors, namely, First, the factor of Islamic law because Tapsel people have understood Islam well and run it in various fields of life including in the distribution of inheritance. Given that there are dozens of Islamic education institutions in Tapsel according to the author has given a pretty good understanding of Islamic law. So in general it can be said, that this change is a consequence of the Islamization process experienced by the Tapsel people. Second, is the factor of higher power or positive law because until now the community still believes that only the Religious Courts as a place to solve the problem of inheritance to obtain legal certainty.The shift to adat inheritance occurs in several patterns. The first pattern is a total change from customary form to division according to faraid, this pattern occurs in areas that are fairly Islamic, namely the Mandailing Natal region, although of course there are some people who divide in a way that is not consistent in carrying out Islamic law. The second pattern is to carry out adat law, namely in communities that are relatively strict with adat, namely in the Padang Lawas and Sipirok regions, in this area many cases seem to have carried out faraid formally but the substance still reflects the spirit of adat law. The third pattern, namely the way of division which is a combination of Islamic law and customary law, which is a fairly moderate community in the Angkola region.Islamic law has contributed by shifting the implementation of customary law to Islamic law. People who according to customary law do not receive inheritance become heirs who receive a certain portion. At first the mother did not count as an heir, then given a part 1/3 or 1/6. Istdri initially did not get any portion of the inheritance then received 1/4 or 1/8. Girls initially only have the status of olong ate, then receive a relatively large portion, which is 1/2 or 2/3.

scholarly journals Hak Bantuan Hukum Prodeo dalam Hukum Islam dan Hukum Nasional

2020 ◽  
Vol 22 (1) ◽  
pp. 179-196
Author(s):  
Muhammad Salda ◽  
Sanusi Bintang ◽  
Teuku Muttaqin Mansur
Keyword(s):  
Supreme Court ◽  
Research Methods ◽  
Islamic Law ◽  
Legal Assistance ◽  
Legal Counsel ◽  
Legal Aid ◽  
The Supreme Court

Penelitian ini bertujuan untuk menganalisis perbedaan hak bantuan hukum dalam konsep hukum Islam dan hukum nasional. Bantuan hukum dalam hukum nasional ditujukan bagi mereka yang tidak mampu membayar penasihat hukum. Penelitian ini menggunakan metode penelitian yuridis empiris. Berdasarkan hasil penelitian ditemukan bahwa pemberian hak bantuan hukum prodeo dalam hukum Islam dan hukum nasional mempunyai tujuan yang sama yaitu mewujudkan keadilan. Terdapat perbedaan pada sumber hukumnya. Hukum Islam bersumber pada al-Quran, Hadits, dan ijtihad. Sumber hukum nasional adalah UUD 1945, Undang-Undang Nomor 16 Tahun 2011 tentang Bantuan Hukum. Sumber dana bantuan hukum dalam hukum Islam dari baital mal. Sedangkan dalam hukum Nasional bersumber dari anggaran Mahkamah Agung dan APBA. Letak perbedaan pada sumber hukum keduanya, sumber pembiayaan dari pemenuhan hak bantuan hukum prodeo dan dalam hal kategori orang-orang yang menerima bantuan hukum prodeo, namun mempunyai tujuan yang sama yaitu perwujudan keadilan. Prodeo Legal Aid in Islamic Law and National Law This study aims to analyze the differences between the legal aid rights in the concept of Islamic law and national law. Legal aid in national law is aimed at those who cannot afford legal counsel. This research uses empirical juridical research methods. The study found that the granting of prodeo legal aid in Islamic law and national law had the same goal of realizing justice. There is a difference in the legal source. Islamic law is based on the Al-qur’an, Hadith and ijtihad. However, national legal sources are the 1945 Constitution and Law Number 16/2011 concerning Legal Aid. The source of funding for legal aid in Islamic law comes from Baital Mall. Whereas in National law sourced from the budget of the Supreme Court and APBA. Although there are differences in legal sources, sources of financing and differences in the categories of people who receive prodeo legal assistance, both have the same goal of realizing justice.

22. A Revolution by Due Process of Law?

2021 ◽  
pp. 613-648
Author(s):  
Ian Loveland
Keyword(s):  
European Union ◽  
Supreme Court ◽  
Due Process ◽  
Final Part ◽  
Court Decisions ◽  
The European Union ◽  
Legal Basis ◽  
High Court ◽  
The Supreme Court ◽  
Due Process Of Law

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court decisions in the first of the two Miller judgments. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the assesses the significance of the results of the unexpected 2017 general election. The chapter goes on to examine the European Union (Withdrawal) Act 2018 and the subsequent fall of the May government and its replacement by an administration led by Boris Johnson. In the final part of the chapter the Miller (No 2) and Cherry litigation and its political aftermath are discussed in full, with a particular focus laid on the controversial way in which the Supreme Court deployed the notion of ‘justiciability’ in its judgment in Miller (No 2).

Vaterschaftstests zwischen religiösem Recht und Medizintechnik: Abstammungsklagen im algerischen Familienrecht

2018 ◽  
Vol 58 (2) ◽  
pp. 173-205
Author(s):  
Melanie Guénon
Keyword(s):  
Supreme Court ◽  
Dna Analysis ◽  
Islamic Law ◽  
Family Law ◽  
Genetic Technology ◽  
Legal Practice ◽  
The Supreme Court ◽  
Family Code ◽  
Code Reform ◽  
Court Practice

This article examines the 2005 Algerian family law regulations concerning paternity and the use of DNA tests in Algerian paternity disputes. Specifically, it analyzes the relation between the methods of establishing and negating paternity recognized in Islamic law and the available genetic technology.
On the basis of three judgments of the Supreme Court, the present legislation as well as legal practice in Algeria is scrutinized. The article concludes that the Algerian legislator hesitates to dissolve the conflict between genetic technology and the recognized types of evidence of Islamic law. For now, court practice remains ‘traditional’ since judges might feel too much responsibility facing unclear regulations regarding paternity. Nevertheless, the Algerian family code reform offers the opportunity to use DNA-tests to establish nasab for both legitimate and illegitimate children. Due to unclear regulations it also paved the way to use DNA-analysis for paternity negation.*


The South Confronts the Court: The Southern Manifesto of 1956

2008 ◽  
Vol 20 (1) ◽  
pp. 126-142 ◽  
Author(s):  
Anthony Badger
Keyword(s):  
North Carolina ◽  
South Carolina ◽  
Supreme Court ◽  
Use Of Force ◽  
Judicial Power ◽  
Legal Basis ◽  
The South ◽  
The Supreme Court

On Monday, March 12, Georgia's senior senator, Walter George, rose in the Senate to read a manifesto blasting the Supreme Court. The Manifesto condemned the “unwarranted decision” of the Court in Brown as a “clear abuse of judicial power” in which the Court “with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.” The signers pledged themselves “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.” It was signed by nineteen of the twenty-two southern senators, by every member of the congressional delegations from Alabama, Arkansas, Louisiana, Mississippi, South Carolina, and Virginia, by all but one of the representatives from Florida, all but one from Tennessee, all but three from North Carolina, and half of the Texas delegation.

Judicial Trends in Child Custody Cases in Bangladesh: Traditional Islamic Law Rules versus Welfare Considerations

2017 ◽  
Vol 12 (2) ◽  
pp. 233-256 ◽  
Author(s):  
Taslima YASMIN
Keyword(s):  
Child Welfare ◽  
Supreme Court ◽  
Child Custody ◽  
Islamic Law ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Welfare Of The Child ◽  
Personal Law

AbstractIn Bangladesh, disputes over custody and guardianship involving Muslim parties are principally governed by Muslim personal law. There remains a constant dilemma in judicial decisions over custody and guardianship matters as to what should be the paramount consideration in awarding child custody to a party – should traditional Muslim personal law rules or the welfare of the child prevail? The findings of this study indicate that there is a steady but inconsistent trend towards child welfare considerations. However, it cannot conclusively be said that a child’s welfare is now themostdominant, or theonlyconsideration for the courts. Focusing on this shift towards a welfare approach, this article critically examines some of the leading reported judgments of the Supreme Court of Bangladesh on the issue.

scholarly journals REVITALIZATION OF BADAN PENASIHATAN, PEMBINAAN DAN PELESTARIAN PERKAWINAN (BP4) IN PERFORMING COURT-ANNEXED MEDIATION FOR MARITAL DISPUTES IN RELIGIOUS COURT IN D.I.YOGYAKART

2017 ◽  
Vol 29 (1) ◽  
pp. 96
Author(s):  
Haniah Ilhami
Keyword(s):  
Supreme Court ◽  
Institutional Transformation ◽  
Legal Basis ◽  
Institutional Form ◽  
National Conference ◽  
The Supreme Court ◽  
Marital Disputes ◽  
Religious Courts

This research identify the revitalization of Badan Penasihatan, Pembinaan dan Pelestarian Perkawinan (BP4) after The 14th BP4 National Conference in 2009, in performing Court-annexed mediation for Marital Dispute at Religious Court in D.I. Yogyakarta. This  research founds several institutional transformation of BP4 including the Legal Basis, Institutional Form, Institutional Relation with Ministry of Religious Affair, Employement/Management Provisions, and Financial Provisions. In Performing Court-annexed mediation. BP4 in D.I. Yogyakarta has been cooperating with 2 (two) Religious Courts, both in Wonosari and Yogyakarta through Memorandum of Understanding in form of cooperation in the placement of certified mediator from BP4 and cooperation in funding the certified mediators. All Mediators are bound by Regulation of The Supreme Court No. 1 year 2016 concerning Procedures of Court-annexed Mediation, related to Types  of  Cases  Mediated,  Mediator’s  Fee,  Venue  of  Mediation,  Period  of  Mediation,  and Mediator’s requirement.

scholarly journals PENERAPAN PERATURAN MAHKAMAH AGUNG REPUBLIK INDONESIA NOMOR 1 TAHUN 2016 TENTANG PROSEDUR MEDIASI DI MASA PANDEMI COVID 19. (STUDI DI PENGADILAN AGAMA KAB. KEDIRI)

2021 ◽  
Vol 6 (2) ◽  
pp. 117
Author(s):  
Emi Puasa Handayani ◽  
Zainal Arifin
Keyword(s):  
Supreme Court ◽  
Mediation Process ◽  
Legal Basis ◽  
Second Stage ◽  
The Third ◽  
The Supreme Court ◽  
Third Stage ◽  
Data Source ◽  
Three Stages ◽  
The Republic

This article is the outcome of research aimed at took two problems. First, what is the procedure for the mediation process in accordance with the Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016. Second, how is the implementation of Regulation of the Supreme Court of the Republic of Indonesia Number 1 of 2016, during the Covid 19 pandemic at the Kediri District Religious Court. The method used in this research is juridical empirical. The research steps taken were: First, the researcher visited the Kediri District Religious Court offi ce. To fi nd initial data, and interviewed the data source, then processed and presented according to the theory used. The theory used is the legal system. In essence, there are three components in law, namely substance, structure and culture (society). The research found two things, namely: fi rst, that Mediation based on the regulations of the Supreme Court is carried out in three stages, fi rst is pre-mediation, the second stage is the application of mediation and the third stage is the implementation of mediation. The second fi nding is that the implementation of Perma RI Number: 1 of 2016 concerning mediation during the Covid 19 pandemic at the Kediri District Religious Court deviates from the established legal basis. The judge still gave a verdict or sentenced him, even though the Petitioner did not come at the time of mediation on the grounds of the Covid 19 Pandemic.

scholarly journals CONSIDERATION OF THE MATARAM RELIGION JUDGES IN DETERMINING THE LEVEL OF MUT'AH AND NAFKAH IDDAH IN DIVORCE (TALAK) CASE, (Case Analysis No. 0041/Pdt.G/2018/Pta.Mtr and No. 0081/Pdt.G/2018/Pta.Mtr)

2019 ◽  
Vol 11 (2) ◽  
pp. 109-120
Author(s):  
Samsudin Samsudin
Keyword(s):  
Qualitative Research ◽  
Supreme Court ◽  
Islamic Law ◽  
Case Analysis ◽  
Research Data ◽  
Legal Certainty ◽  
High Court ◽  
The Supreme Court ◽  
Principles Of Justice ◽  
Sense Of Justice

Judges' considerations often do not provide satisfaction and do not provide a sense of justice to the parties. The decision of the judge of the Religious High Court is considered the final place, although it can submit an appeal to the Supreme Court which is the highest institution in the area of ​​the religious court, so the researcher raises this title and formulates the problem that is the direction of the research. This study aims to find out how the judge's judgment and whether the judges of the Mataram High Court in determining the level of mut’ah and livelihood in the divorce case have fulfilled the principles of justice, usefulness, and legal certainty. The type of research used is qualitative research. Data collection techniques use study decisions, documentation, and interviews. In addition, the data obtained are informants' information, documentation, and are not numbers. Based on the results of the study, the results obtained are as follows: 1) The consideration of the judges of the Mataram High Court in determining mut’ah levels and iddah livelihoods on divorce cases is observing from work, income, wife who is not incoherent and also to the old wife accompany her husband in fostering a family. 2) whereas regarding the decision of the judges of the Mataram High Court in determining the level of mut’ah and livelihood of the iddah in divorce cases the principles of justice and legal usefulness has not yet been fulfilled, the judge is more focused on the principle of legal certainty and the fulfillment of rights and obligations. However, the amount determined is not in accordance with the sense of justice and certainly will not be fulfilled. In its decision, the judge saw the Law, Compilation of Islamic Law (KHI), Islamic Sharia (Al-Qur'an and Hadith), Perma Number 03 of 2017, and Circular of the Supreme Court of Republic of Indonesia Number 1 of 2017.

Sign in / Sign up

Export Citation Format

Share Document