scholarly journals Hermeneutical Reading of Ṭalāq

2016 ◽  
Vol 12 (2) ◽  
pp. 209
Author(s):  
Rusli Rusli

This paper deals with the hermeneutical reading of divorce (Ṭalāq), one of the sensitive issues in Islamic family law. It is concluded that the existence of Islamic law of divorce is not to denigrate women; however, it is to give respons to the injustice suffered by women by giving regulations that are more friendly to women. The regulations of the Quran on the subject of divorce are designed to restrict the practice which had prevailed among the Arabs that they are free to divorce his wife at any time without any reason, and remarry her in unlimited ways. This is indicated that Islam stipulates that divorce is two times: then one may retain with goodness (and reasonable terms), or let go with goodness and reasonable terms. If divorce occurs, a divorced woman should the prescribed period (‘iddah) and financial consideration (mut‘at al-Ṭalāq).

2020 ◽  
Vol 2 (1) ◽  
pp. 63-78
Author(s):  
Haqqiyah Uthlufah

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.


2019 ◽  
Vol 27 (2) ◽  
pp. 317-336
Author(s):  
Azizah binti Mohd

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.


2018 ◽  
Vol 10 (3-4) ◽  
Author(s):  
Zanariah Noor

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.


2014 ◽  
Vol 14 (1) ◽  
pp. 1
Author(s):  
Ahmad Bunyan Wahib

This article discusses about the history and the development of family law reform in Muslim countries.This work has taken a lot benefits from Anderson’s works on Islamic law in the Muslim world for bothdata and perspective. Islamic family law reform started from the second decade of twentieth century(1915) with the issuance of two Ottoman Caliph decrees on wife rights to ask religious court to divorcethem from their husband. This reform was followed by Sudan (starting from 1916), Egypt (1920),Jordan (1951), Syria (1953), Tunisia (1956/1959), Morocco (1958), Iraq (1959), Pakistan (1961) and Iran(1967). The reformation aims to administrate the members of community in the filed of social,economy, politics, and law. From the perspective of modernization, Islamic family law reform inMuslim countries has shown the process of modernization from above.


2020 ◽  
Vol 12 (1) ◽  
pp. 286
Author(s):  
Alejandro Nieto Cruz

Resumen: El presente trabajo se centra en el análisis de las posibles colisiones existentes entre el orden público español y las principales instituciones del Derecho de familia islámico. No podrán integrarse aquellas instituciones que sean contrarias a valores esenciales de nuestro ordenamiento como la igualdad entre sexos o la monogamia. Sin embargo, a través de la aplicación del orden público atenuado, sería posible reconocer algunos “efectos colaterales” a estas instituciones cuando resultaren beneficiosos para la mujer. El objetivo último sería la protección de ésta como la parte más débil de la relación matrimonial.Palabras clave: Derecho islámico, orden público, matrimonio islámico, poligamia, repudio. Abstract: The present paper focuses on the analysis of the possible collisions between the Spanish public order and the main institutions of the Islamic Family Law. It will not be possible to integrate those institutions which are against essential values of Spanish law such as gender equality or monogamy. However, it would be possible to recognize some “collateral effects” to these institutions if they resulted beneficial for women, through the application of the attenuated public order. The main purpose would be women’s protection, as they are the weakest party of the marriage relationship.Keywords: Islamic Law, public order, Islamic marriage, polygamy, repudiation.


ULUMUNA ◽  
2015 ◽  
Vol 19 (1) ◽  
pp. 137-158
Author(s):  
Munawir Haris

The renewal of Islamic law is essentially contrary to something that already exists (existing) then undergoes a qualitative change as a product of interaction in public life. It could be argued that the process of renewal of Islamic law is seen as something autonomous, but it also interacts with other elements in society that occur interdependently. Therefore, the concept of renewal of Islamic law requires adaptive stance with social conditions in which it interacts. In this case, the realization of the principle of al-muh}āfaz}atu ‘alā al-qadīmi al-s\ālih} wa al-akhdhu bi al-jadīd al-as\lah} (Maintaining the old one if it is still good and accept the new or changed if it is considered better) became a necessity. Within the framework of family law renewal in Indonesia, Islamic law has a very strategic and important role. From the sociological point of view, Islamic family law has deeply rooted in the Muslim daily live and become a living law in the midst of the majority of Indonesian people. Renewal of Islamic law in the context of family law in Indonesia includes four categories namely fiqh, fatwā, jurisprudence and legislation. This article explores these four categories and shows how reform influence these domains. DOI: http://dx.doi.org/10.20414/ujis.v19i1.1254


2021 ◽  
Vol 9 (1) ◽  
pp. 153-167
Author(s):  
Halima Mechouet ◽  
Asma Akli Soualhi

Abstract in English: In the article 46, the Algerian Family Code stipulates the following: "Adoption is prohibited by both the Sharia and Law". Therefore, it is clearly understood that the interdiction of adoption doesn’t contradict the Islamic law (Sharia). But due - on one hand - to the confusion in Algerian society with regard to the conception of adoption with all its consequences, and on the other hand the difficult situation of many abandoned children and the suffering of many families who are not blessed with the fertility or the capacity of reproduction, the Algerian legislature has been forced to find solutions to such difficult cases. Therefore, a child support legislation (guardianship or sponsorship) has been established under the following Articles 116 and 125 of the Family Code. The study was based on the Algerian laws on the issue of the termination of child sponsorship and applied by the Algerian judiciary. The problem of the study is to know the cases of termination of child sponsorship in the Algerian family law, and the position of the Algerian judiciary on this issue. This study aims to mention the cases in which the sponsorship of the child ends in the Algerian family law, and to discuss some of the Algerian judicial decisions issued by the Supreme Court, related to the subject of the study in question. The study relied on the analytical method, in order to analyze legal texts and discuss judicial decisions. The study concluded that the Algerian family law stipulated some cases in which the sponsorship of the child ends, and neglected to mention other cases.   Abstract in Arabic: لقد نص المشرع الجزائري في المادة 46 من قانون  الأسرة على  ما يلي: "يمنع التبني شرعا وقانونا".يتضح من تحليل هذه المادة أن المشرع منع الآخذ بنظام التبني تماشياً مع أحكام الشريعة الإسلامية. لكنه، ونظرا للمشاكل المترتبة على قضية التبني في المجتمع الجزائري من أخذ وردو كذلك بالنسبة للوضعية الصعبة لبعض الأطفال المهملين، وكذا معاناة بعض الأسر التي لا تنعم بالإنجاب، التجأ المشرع الجزائري إلى حل يتجلى في الكفالة، فنظم أحكامها في المواد من 116 إلى 125 من قانون الأسرة. استندت الدراسة إلى القوانين الجزائرية الخاصة بموضوع انتهاء كفالة الطفل والمطبقة  من طرف القضاء الجزائري. تتمثل إشكالية الدراسة في معرفة حالات انتهاء كفالة الطفل في قانون الأسرة الجزائري، وموقف القضاء الجزائري من هذه المسألة. تهدف هذه الدراسة إلى ذكر الحالات التي تنتهي بها كفالة الطفل في قانون الأسرة الجزائري،ومناقشة بعض القرارات القضائية الجزائرية الصادرة عن المحكمة العليا،والمتعلقة بموضوع الدراسة محل البحث. لقد اعتمدت الدراسة على المنهج التحليلي، وذلك من أجل  تحليل النصوص القانونية ومناقشة القرارات القضائية. لقد توصلت الدراسة إلى أن  قانون الأسرة الجزائري نص على بعض الحالات التي تنتهي بها كفالة الطفل،وأغفل عن ذكر الحالات الأخرى


Author(s):  
Mashood A. Baderin

‘Family law’ focuses on Islamic family law, the two main aspects of which are: marriage and the dissolution of marriage. Marriage by mutual contract (al-nikāh) is the only lawful type of marriage under Islamic law, with rules regulating its validity and consequences. The two main categories of requirements for the validity of an Islamic marriage are: prerequisites and essential components of the marriage contract. The questions of maintenance, polygamy, and stipulations are vital topics for family law. Under classical Islamic law, a marriage may be dissolved either through (i) unilateral dissolution initiated by the husband (talāq), (ii) dissolution initiated by the wife (khulʻ), (iii) dissolution by mutual agreement (mubāraʻah), or (iv) judicial dissolution (faskh).


2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Muhamad Mas’ud

The enactment of Islamic law during colonialism was marked by the thought of Sayyid Usman, a historical figure who had a great interest in the study of Islamic law in Indonesia during the Dutch East Indies colonization. As a scholar, he has special attention to the continuity of Islamic law in Indonesia, especially regarding Islamic family law, which at that time had been widely practiced by people to replace customary law. In addition, he also contributed a lot of thoughts in the context of enforcing Islamic law by organizing religious justice institutions and compiling Islamic family law. Formally the institutions of religious justice, especially in Java and Madura, were only formed by the Dutch East Indies government in 1882, through the Staatsblad 1882 No. 152. This formation is at once a measure of the reorganization of religious justice institutions, namely by establishing new religious courts in addition to each landraad (the same court) with the same legal area, on average as large as the district. It's just that if before the religious court was independent, then with this reorganization the power to carry out the verdict was handed over to landraad. K.F. Holle, L.W.C. Van den Berg, and Snouck Hurgronje, these three Dutch people were very influential in the birth of the theory of the enactment of Islamic law in Indonesia, L.W.C. Van den Berg is one of the initiators of the theory of receptio in complexu, which states that "for Muslims full Islamic law applies because he has embraced Islam even though there are still deviations in its implementation. Next to L.W.C. Van den Berg carries the theory of receptio in complexu, and Snouck Hurgronje as the originator of receptie theory, which states that for indigenous people basically customary law applies, and Islamic law applies to indigenous people if Islamic legal norms have been accepted by society as customary law.


Sign in / Sign up

Export Citation Format

Share Document