scholarly journals The Marriage Law Amendment Bill, 2010: Through a Gendered Lens

2022 ◽  
pp. 91-99
Author(s):  
TAHA HAJARA MUHAMMAD

India has taken a big step in the year 2005 by amending the Hindu Marriage Act, 1955, giving women the equal right of inheritance as their male siblings. However, there remains a loophole where women are still marginalized when it comes to the division of property; the division of matrimonial property after separation. It is observed that divorce leads to women facing several hurdles starting from the legal system to their natal homes; the conditions are not suitable for women to have a good life after divorce due to loopholes in the legal system in India. Due to these issues faced by women, they are forced to stay loyal to their exploitative marriage for the rest of their lives. The introduction of the Marriage Law Amendment Bill of 2010, which eases the laws on divorce, brings further problems for women as they subjected to a rough legal system that upholds social morality over constitutional morality.

Asy-Syari ah ◽  
2014 ◽  
Vol 17 (1) ◽  
Author(s):  
Rachmat Syafe’i

The tradition of Islamic law in Indonesia's Muslim population can not be separated from values, legal norms, and legal products. Therefore, the position of ijtihad is one of the important instruments in Islam. In this context, a mujtahid in general perform several steps in formulating Islamic rules from the sources, that are the Quran and Hadith. The position of Islamic law in the legal system in Indonesia is increasingly gaining recognition juridically. One of that is  enactment of the Marriage Law Num­ber 1 Year 1974 and Presidential Decree Number 1 Year 1991 on the Compilation of Isla­mic Law. Thus the actualization of Islamic law must be carried out systematically by con­crete actions. Actualization of Islamic law is not enough, it will even harm if done only for political action which campaign demanding the implementation of Shari'a. One of the problems encountered in attempts to actualize Islamic law is the absence of a clear conception of the legal matter that must be actualized in national law, both of which apply specifically to Muslims and generally applicable.


Author(s):  
Hamdan Nasution

Marital status of different religions in the legal system in Indonesia is illegitimate. Marriage Law Number 1 of 1974 in Article 2 paragraph 1 reveals that marriage is legal if it is carried out according to the law of each religion and belief. It means that marriage can only take place if the parties (future husband and wife) follow the same religion. From the formulation of Article 2 paragraph 1, there are no marriages outside their respective laws and beliefs. Interfaith marriages are held abroad. Keywords: Analysis, Legitimacy, Interfaith Marriage


2021 ◽  
Vol 12 (3) ◽  
pp. 28-42
Author(s):  
Lihong Gao ◽  
Da Su

The concept of "animal welfare" originated relatively recently and refers to fulfilling the basic needs of animals to avoid unnecessary suffering. However, in ancient China, ecological awareness similar to current “animal welfare” had already been awoken and codified in the form of a series of legal systems, among which were specific regulations for horses that entailed giving them a good life, as well as a series of “animal welfare” regulations more in line with the current sense, such as not hitting them in the face, nor using genetically related horses for breeding. This paper analyses the current legal framework of animal protection to trace the legal system on horse protection throughout the history of China.


2021 ◽  
Vol 20 (2) ◽  
pp. 189
Author(s):  
Muhammad Sabir ◽  
Nazaruddin Nazaruddin

This study discuss about the manifestations of shariah perda in managing of sosial morality. The type of this research is a qualitative descriptive using the sociological, historical and normative juridical approaches. The results of this study suggest that the sharia regional regulations are established based on the Koran and hadith. In the history of its formation, it is inseparable from the formation of national law by observing the three periods of its formation, especially regarding regional autonomy. It is also necessary to understand that if you look at the position of regional regulations, especially sharia regulations by looking at the legal system in force in this country, it can be understood that Islamic sharia has an important position in the formation of law in Indonesia. This regulation aim of safeguarding and protecting the dignity of the community. Although there is opposition and rejection of it, this rule is in accordance with the national legal system and makes a great contribution to managing people's lives. Because one of the functions of law is to regulate or control the actions and behavior of the community so as not to do actions that are detrimental to themselves and to the surrounding community.


2021 ◽  
pp. 54-70
Author(s):  
W. J. Waluchow

This chapter assesses whether the exercise of judicial discretion in answering pivotal legal questions is necessarily illegitimate in a constitutional democracy. It argues that legitimacy does not necessitate existing right answers and a rejection of judicial discretion. This argument rests on two factors: first, the difficulty of determining, in any particular case, whether there is a right answer and what that might be; and second, the fact that judicial discretion does not consist in unbridled choice on the part of one who exercises it. The answer to the interpretative concerns over constitutional judges should not be overcome by relying on the idea of a unique correct answer, but rather by a dedication to the decision-making process. The chapter then considers the idea of the 'Community Constitutional Morality', under which each legal system instantiate a set of moral values embedded in its constitution, from which judges should not depart. It is the constitution and the local social practice that determines such 'constitutional morality', and not an ideal set of external objective morality. This idea mitigates the 'counter-majoritarian' objection, as judicial review would reflect the commitments deeply held by the society where it is being exercised.


2007 ◽  
Vol 56 (1) ◽  
Author(s):  
Gianfranco Iadecola

Lo scritto intende sottolineare la difficile problematicità, dal punto di vista legale, del tema del rifiuto di cure salvavita da parte del paziente e del rilievo che una tale volontà (sempre che libera e cosciente) ha per il medico. In tale prospettiva, si dà conto di come, nella questione, interferiscano (ed entrino in contrasto) due interessi fondamentali, entrambi protetti dall’ordinamento, ossia quello della libertà morale della persona e quello della vita, osservandosi come siffatta situazione conflittuale si tragga proprio (anche) dal recente provvedimento giudiziale sulla vicenda “Welby”. Il tribunale di Roma, infatti, dopo aver ampiamente evidenziato la univoca protezione garantita dall’ordinamento giuridico alla libertà di autodeterminazione del malato, non può non registrare la indiscutibile ed assoluta tutela assicurata al bene della vita, in sostanza individuando in essa l’adempimento al riconoscimento della vincolatività, per il medico, di una volontà di cessazione delle cure idonee al mantenimento in vita, espressa dal paziente. Si osserva come, nella prima (reale) disamina specifica del problema (dei limiti di rilevanza della volontà del malato rispetto alla posizione di garanzia del medico) da parte di un giudice nazionale, venga condivisa – di contro alle opinioni dominanti nel dibattito dottrinale – la posizione secondo cui la indisponibilità del bene fondamentale della vita si ponga, anche allo stato normativo attuale, come limite al riconoscimento – del rifiuto consapevole di cure mediche salvavita – quale situazione giuridica soggettiva tutelata, sempre e comunque, dall’ordinamento. ---------- The writing intends to underline the difficult problematic nature, under the legal point of view, of life support care refusal matter by the patient and of the relief that such a will (provided that be free and conscious) has for the physician. In such perspective, it gives an account of how, in the matter, interfere (and enter contrast) two fundamental interests, both protected by the order, i.e. that of person’s moral freedom and that of life and it explains as such conflictual situation concerns really (also) about the recent judicial provision on the “Welby” case. The court of Rome, in fact, later have widely highlighted the univocal protection ensured by the legal system to the patient self-determination freedom, has to take into account the indisputable and absolute tutelage assured to the good life, basically identifying the fulfilment to the recognition of bond, for the physician, of a will of cessation of the cares suitable to the maintenance in life, expressed by the patient. One observes as, in the first (real) close examination of the problem (of the limits of importance of the will of the patient compared to the guarantee position of the doctor) by a national judge, is shared - against to the opinions ruling in the doctrinal debate, the position according to which the unavailability of the fundamental life good places, also according to the current normative state, as limit to the recognition - of the refusal aware of sustaining-life treatments - as subjective juridical situation protected, always and anyway, by the order.


Mahakim ◽  
2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Mohsi Mohsi

Legal plurality is an indisputable part of the concept of Indonesian statehood, including the construction of marriage law. The pluralism of marriage law in Law No. 01 of 1974 is proof that the marriage law adhered to in the Indonesian legal system still refers to the pluralism and diversity system. This research will examine the plurality of marriage law from the legality aspect which has implications for its legal status, between imperative and facultative. This study uses a statute approach with an emphasis on the concept of law and legal legislation. This research concludes that the plurality of kwainan law in Law Number 01 of 1974 is a necessity in a multicultural country, because the existence of this law aims to accommodate and integrate existing laws on this Bhineka earth.


2018 ◽  
Author(s):  
Tengku Erwinsyahbana

It is likely that interreligion marriage often takes place due to plurality adhered by the Indonesian people. Many couples have not had their interreligion marriage registered due to refusal by the Civil Registry Office to register their marriage on grounds that the interreligion marriage is not permitted in religious teachings, and further, it is not regulated in Law No. 1 of 1974. This fact obviously raised the feeling of injustice and legal uncertainty in the interreligion marriage so that it is interesting to investigate the aims of which were: to discover the law on interreligion marriage in the politics on marriage law based on Five Basics Principles of the Republic of Indonesia (Pancasila) when associated with function of the marriage registry institution, to discover the legal certainty of the interreligion marriage conducted overseas when associated with function of the marriage registry under the Indonesian legal system, as well as the interreligion marriage law in the political perspective on equitable marriage law based on Pancasila as an effort for legal system development of national family. To analyze the research findings, the following theories are adopted, which are, the Pancasila based legal state, Pancasilabased justice as well as legal development and legal certainty theories.The research was a legal research natured by adopting approaches on legal history and comparative as well as laws and regulations. The research was descriptive nature and in view of the costruction, it was a prescriptive research.The main data required for the research consisted secondary and primary data.Data collection that have been adopted was document study and interview methods the analysis of the data collecting was conducted on a qualitative juridical method focusing on the analysis on the legal certainty and legal aspect which live and grow among the public, as well as legal synchronization.The research indicated that the interreligionmarriage in Indonesia has taken place due to a legal uncertainty in the context of Law No. 1 of 1974 which did not regulate whether or not the interreligion marriage practice was permitted. On the contrary, however, the relevant law has opened the possibility of such marriage to took place. It was also possible that the uncertainty on the interreligion marriage was due to the provisions regarding marriage as set forth in Law No. 1 of 1974 and Law No. 23 of 2006 which conflict with each other. The state should therefore guarantee that the public legal certainty is to be realized as one characteristic indicated in a Pancasila based legal state is the existence of legal certainty. Viewed from the theories on Pancasila based justice as well as legal development and legal certainty approache. Thus, to realize public orderliness and harmony, it shall be necessary to only register the marriage at one institution. This has to be conducted as an effort to keep orderliness of population administration and legal certainty when it comes to interreligion marriage.


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