al-Mawarid Jurnal Syariah dan Hukum (JSYH)

JUDICIAL DISPARITIES IN LEGAL INTERPRETATION: THE APPLICATION OF PROGRESSIVE LAW IN MARRIAGE DISPENSATION RULINGS

Ardian Kurniawan, Dedi Sumanto, Ana Ramadhona, Hendri. K — Sun, 31 Aug 2025 00:00:00 +0000

Purpose: This study aims to analyze the disparity in judicial interpretations and the application of legal progressivism in marriage dispensation decisions at the Muara Bulian Religious Court. This study seeks to explore how judges construct legal reasoning when faced with applications for underage marriage dispensation and whether their decisions reflect consistency or divergence in applying child protection principles.

Methods - This study employs a socio-legal approach with qualitative methods. Data were obtained from case decisions, field observations, and interviews with judges at the Muara Bulian Religious Court. The data were analyzed thematically to identify patterns of judicial interpretation and the extent of progressivism in the rulings’ content.

Findings - The results reveal a disparity in judges’ interpretations, particularly regarding the use of progressive legal reasoning. Some judges strictly adhere to statutory provisions, while others accommodate sociocultural considerations and parental requests, resulting in inconsistent outcomes. Although progressive legal theory provides opportunities for child protection, in practice, dispensations are often granted, thereby reinforcing early marriage practices instead of preventing them.

Contribution/Limitation of Research: This study contributes to the discourse on judicial discretion and progressive legal thought in the context of family law adjudication. However, it is limited to the Muara Bulian Religious Court; thus, its findings cannot be generalized to all religious courts in Indonesia.

Originality/Value - This study highlights the tension between statutory child protection norms and judicial discretion in marriage dispensation cases. It offers a critical socio-legal perspective on how progressivism is interpreted and practiced at the local courts.

CONTEMPORARY ISSUES IN MIXED MARRIAGES: AN ISLAMIC LEGAL ANALYSIS OF LINGUISTIC ISSUES IN MARRIAGE CONTRACTS

Wahyu Aji Pratama, M. Saeful Amri — Sun, 31 Aug 2025 00:00:00 +0000

Purpose - This study examines the legal validity of Indonesian-Taiwanese mixed marriage contracts from an Islamic law perspective, specifically analyzing the impact of linguistic barriers in Ījāb Qabūl on fulfilling the requirements of tarāḍī (consent) and fahm al-'aqd (contract comprehension). This study fills a gap in contemporary Islamic jurisprudence studies regarding the legal implications of language barriers in marriage rituals that potentially affect contract validity.

Method - This study employs an empirical juridical method integrated with a socio-legal approach, focusing on KUA Paguyangan, which handles Indonesian-Taiwanese mixed marriage cases with significant linguistic challenges. Primary data were collected through in-depth interviews with KUA officials, field observations of ceremony documentation, and analyses of official marriage records.

Findings - This study reveals that cross-cultural Islamic marriages achieve validity through four key elements: linguistic innovation where Taiwanese grooms use native script with Indonesian vocalization (ḥifẓ al-ma'nā ma'a taghyīr al-rasm), legal framework fulfilling comprehension, pronunciation, witness validation, and willingness requirements, institutional adaptation by KUA officials balancing authenticity with accessibility, and theological alignment with Islamic principles of ease (taysīr), concession (rukhṣah), and public interest (maṣlaḥah).

Research limitations - The research is limited to one case at KUA Paguyangan; thus, generalization requires caution. However, post-marriage aspects and cultural integration dynamics have not been explored.

Originality/value - This research makes an original contribution to the study of Islamic family law in a global context by providing an in-depth analysis of practical solutions to overcome language barriers in religious rituals, which have not received adequate attention in previous academic literature.

THE LEGAL CONSTRUCTION OF CHILD CUSTODY IN THE LAHAT RELIGIOUS COURT: AN ANALYSIS OF CUSTODY AWARDS TO FATHERS AFTER DIVORCE

Sun, 31 Aug 2025 00:00:00 +0000

Purpose: This study aimed to analyze the legal considerations and implementation of custody decisions in Case Number 977/Pdt. G/2022/PA.LT at the Lahat Religious Court. Specifically, it seeks to examine the legal basis used by the judge in granting custody to the father and evaluate how the decision has been implemented.

Methods - A normative-empirical research method is employed, which combines legal analysis with field research. Data were collected through structured interviews with the parties involved and library research on relevant legal sources. This study adopts a qualitative approach with descriptive analysis to interpret judicial reasoning and assess the ruling’s impact.

Findings - The judges prioritized the best interests of the child over Article 105(a) of the Compilation of Islamic Law, which normally grants custody of a non-mumayyiz child to the mother. The decision was based on three key considerations: the child had been continuously cared for by the father since the separation, the child expressed a preference to remain with the father, and the mother admitted infidelity as a factor in the divorce. The ruling has been partially effective: while the child remains in the father’s custody, the mother’s visitation rights have been hindered by parental conflict. Over time, however, the child’s initial reluctance to meet the mother shifted toward more positive interactions.

Contribution/Limitation: This study contributes to the discourse on custody disputes by demonstrating how judicial discretion and social dynamics influence the application of family law. A limitation of this research lies in its focus on a single case, which may not fully represent broader judicial trends.

Originality/Value - The originality of this study lies in its combination of legal and empirical perspectives, offering insights into how custody rulings are not only legally grounded but also shaped by practical, social, and familial considerations.

THE CHILDFREE PHENOMENON IN JAPAN: AN ANALYTICAL STUDY FROM A CONTEMPORARY ISLAMIC LEGAL PERSPECTIVE

Khanan Saputra, Noor Kholifah Hidayati — Sun, 31 Aug 2025 00:00:00 +0000

Purpose – This study aims to explore the childfree phenomenon prevalent in Japan. From year to year, Japan continues to experience a decline in birth rates, which makes it an interesting country to study. From the phenomenon occurring in Japan, the author also wants to find out how the childfree issue is becoming more widespread in Japan, how Islamic law responds to this issue, and how ethics views it.

Methods – This research uses the literature study research method, so this research is complemented by various pre-existing sources and thus can strengthen the data. The research data were obtained from books, articles, and other writings related to the topic of the problem.

Findings – Japan has experienced a decline in birth rates since the 1970s, which has been exacerbated by the emergence of the childfree trend among the younger generation. Economic factors are the reason many young people choose not to have children. In addition, philosophical views related to living a freer life without traditional pressures or social norms that demand a brilliant life, which creates its own burden, also influence this decision. In Islamic law, the practice of childfree by aborting a fetus after four months of pregnancy is prohibited. However, Islam itself is a religion that respects the sanctity of children, as children are the next generation who will become Khalifah on this earth.

Research contribution/limitations – This study’s results provide insight into the childfree phenomenon that is rampant in Japan from the perspective of Islamic law. However, this research also has limitations, as the method used is limited to a literature study without going directly to the field.

Originality/value – This research adds references related to childfree from the perspective of Islamic law, where childfree itself is a contemporary study whose practices have been rampant; therefore, Islamic law also offers answers.

ISLAMIC FAMILY MEDIATION IN SOUTHEAST ASIA: AN ANALYSIS OF CULTURAL LEGITIMACY, LEGAL STRUCTURE, AND CONTEMPORARY DYNAMICS IN INDONESIA AND MALAYSIA

Rahma Khofifah Khoirun Umah, Nur Fadhilah, M. Darin Arif Mu'allifin — Sun, 31 Aug 2025 00:00:00 +0000

Purpose – This study examines the legal framework and institutional practices of family dispute mediation in Indonesia and Malaysia within the context of Islamic family law. This study aims to evaluate how legal pluralism, religious values, and cultural norms shape the implementation and effectiveness of mediation mechanisms in both countries by comparing the effectiveness of the regulation and implementation of family mediation in Indonesia and Malaysia, highlighting Indonesia's reliance on mediation and Malaysia's reliance on the Majlis Sulh.

Methods – This study employs a qualitative legal methodology with doctrinal, comparative, and empirical approaches. The regulations compared include PERMA No. 1 of 2016 and related regulations in Indonesia, as well as the Islamic Family Law Act 1984 (Act 303) and Kaedah-Kaedah Sulh in Malaysia. The analysis examines the legal framework, institutions, and implementation of family mediation, supported by institutional data from the Supreme Court of the Republic of Indonesia (2022) and the Malaysian Sharia Judicial Department (2020).

Findings – The findings reveal significant contrasts: while Indonesia relies heavily on court-annexed mediation led by judges, Malaysia has institutionalized Sulh through the Syariah Court's Majlis Sulh, featuring trained officers and standardized procedures. In Indonesia, mandatory mediation often lacks adequate screening for domestic violence, which raises ethical concerns. Conversely, Malaysia's structured system demonstrates greater procedural integrity and role clarity. Cultural and psychosocial dimensions further influence the outcomes. Community-based models in Indonesia emphasize negotiated resolutions, whereas Malaysia prioritizes religious legitimacy and professionalization. The role of psychosocial professionals and child-inclusive practices emerged as vital elements for increasing effectiveness. Legal culture, public trust, and the institutional environment also determine how mediation is perceived and practiced, with Malaysia benefiting from clearer legal demarcation.

Research contribution/limitations – This study contributes to the growing body of literature on Islamic legal pluralism and non-adversarial justice by identifying the institutional, cultural, and ethical factors that enhance or constrain mediation in Muslim-majority contexts.

THE IMPACT OF DIVORCE IN CONTEMPORARY ISLAMIC LAW: CHILDREN'S RIGHTS AND PARENTS' OBLIGATIONS AFTER DIVORCE

Dedisyah Putra, Martua Nasution, Disry Desky — Fri, 05 Sep 2025 00:00:00 +0000

Purpose – This study aims to examine the impact of divorce from a contemporary Islamic legal perspective, focusing on the fulfillment of children's rights and parental obligations post-divorce. The background of this research is driven by the increasing number of divorce cases in Indonesia, which often leave behind child custody issues. Therefore, an in-depth study of how Islamic and positive laws protect children is necessary.

Method - This study employs a normative juridical approach, analyzing statutory regulations, Islamic law, and contemporary interpretations. This analysis is also supported by contemporary Islamic legal theory, which emphasizes child protection in modern law to assess the alignment between religious norms and national regulations.

Findings – The study's findings indicate that although divorce ends a marriage, parental responsibilities, both material and immaterial, remain unchanged. Fathers are obligated to provide child support, and mothers play a primary role in childcare. Both parents are obligated to ensure their child's education, emotional stability, and moral development. Furthermore, religious courts play a central role in ensuring the fulfillment of children's rights through custody decisions, although implementation is often hampered by economic disparity, emotional conflict between parents, weak legal awareness, and a lack of post-divorce oversight mechanisms. This demonstrates the gap between legal norms and social reality, which has implications for child welfare.

Research contribution/limitations – This study emphasizes the role of religious courts in protecting children's rights through custody arrangements and enforcing post-divorce maintenance obligations in Indonesia. However, obstacles such as economic disparity, interparental conflict, and social stigma often undermine the effectiveness of fulfilling children's rights.

Originality/value – This study contributes to the literature by offering solutions through strengthening parental legal awareness, increasing cooperation between parents even after divorce, and improving institutional mechanisms. These efforts are crucial for ensuring the best interests of children and providing input for policymakers, legal practitioners, and researchers focusing on family law and child welfare.

PROTECTION OF CHILDREN FROM DOMESTIC VIOLENCE: A COMPARATIVE STUDY OF ISLAMIC LAW AND POSITIVE LAW IN INDONESIA

Eva Fadhilah, Öğretim Üyesi Büşra Nur DURAN, Pitrotussaadah — Fri, 05 Sep 2025 00:00:00 +0000

Purpose - This study aims to examine and compare the principles of child protection in Islamic and positive law in Indonesia, focusing on the handling and prevention of violence against children within the family. The significance of this research lies in the increasing number of child abuse cases, particularly within the household, which indicates a gap between existing legal norms and social realities.

Method - This study used a qualitative approach with a normative juridical method. Data were collected through a literature review, including primary sources (the Qur’an, Sunnah and Statutory regulations) and secondary sources (classical books and scholarly journals).

Findings - Islamic law firmly rejects all forms of violence against children through principles contained in the texts and the concept of Maqāṣid al-Usrah, which provides guidance for child protection from conception to adulthood. Positive law regulates child protection through Law No. 35 of 2014, which covers investigations, court proceedings, victim rehabilitation, and prevention through education and child protection institutions. The implementation of both legal systems is hindered by differing interpretations and cultural influences on the law.

Research Contribution/Limitations-This study provides a comparative overview of the relevance of child protection principles in Indonesia, but is limited to literature-based research.

Originality/Value-This research enriches child protection studies by integrating Islamic and positive legal perspectives as academic and practical references for child protection.

A CONTEMPORARY ISLAMIC LEGAL REVIEW OF MUḌĀRABAH CONTRACTS BASED ON THE DSN-MUI FATWA

Fri, 05 Sep 2025 00:00:00 +0000

Purpose: This study aims to review the muḍārabah contract from a contemporary Islamic legal perspective, particularly through the fatwas of the National Sharia Council (DSN-MUI), given its strategic role in Islamic financing practices in Indonesia. This study aims to analyze the development of the muḍārabah concept from a classical fiqh understanding to a more contextual and systematic regulation, as outlined in the DSN-MUI fatwas.

Method - This study uses a qualitative research method with a normative-juridical approach, analyzing classical fiqh texts, contemporary literature, and DSN-MUI fatwas related to muḍārabah.

Findings - The research findings show that although the basic concept of muḍārabah in Islamic jurisprudence emphasizes the principle of profit-sharing and full responsibility for losses on the part of the owner of the capital, the National Sharia Council (DSN-MUI) has developed it through more systematic regulations, such as recognizing legal entities as parties to the contract, guarantee mechanisms under certain conditions, and adapting muḍārabah to modern financial instruments such as sukuk, convertible bonds, and Islamic insurance.

Research Contribution–This study provides a comprehensive understanding of the transformation of the muḍārabah contract from a classical concept to the context of Indonesian Islamic economic law. The limitation of this research lies in its limited focus on DSN-MUI fatwas without exploring their practical implementation in Islamic financial institutions.

Originality: This study’s originality lies in its attempt to critically connect classical fiqh studies with contemporary fatwas, thereby enriching Islamic legal discourse in responding to modern challenges.

FATWĀ IN CONTEMPORARY ISLAMIC JUDICIARY: THE ACCOMMODATION OF MUI FATWĀ AMONG JUDGES OF INDONESIAN RELIGIOUS COURT

Abdullah Jarir, Nina Chairina, Masduki, Abdul Rahim Hakimi — Fri, 05 Sep 2025 00:00:00 +0000

Purpose – This study focuses on the extent to which the application of MUI ( Council of Indonesian Ulama) fatwā in the Indonesian Religious Court, particularly in the context of Islamic family law. This issue has led to discursive debates between Indonesian ʿUlamāʾ and some scholars. Some argue that fatwā is not binding because it is not a legal source and there is no fatwā in the hierarchy of Indonesia’s legal system. However, MUI fatwās have been used as a legal basis for decisions related to Islamic family law in the Indonesian Religious Court.

Method - This research uses sociological jurisprudence as a method for inquiry. This method is based on normative legal research. However, it does not discuss the legal system or regulation; nevertheless, it observes the reactions and interactions that occur in society when the regulation is enforced.

Findings – This study concluded that although MUI fatwā is not binding in the Indonesian Legal system, the judges of the Indonesian Religious Court have considered the MUI fatwā as a legal basis in rendering decisions relating to Islamic family law. In other words, the fatwās issued by the Majelis Ulama, which have been used as a legal basis by judges in the Religious Courts for several cases related to Islamic family law in Indonesia, will shift. The issues mentioned deal with the legal status of children out of wedlock, child adoption, interfaith marriage, and Ahmadiyah followers.

Research contribution – This study reveals the role of MUI fatwas as a non-formal source of legal legitimacy that, while not legally binding, continues to influence judicial practices in Indonesian Religious Courts concerning Islamic family law.

Originality/value – The value of this research rests in its ability to demonstrate the dynamic interaction between religious authority and the positive legal system, thereby opening a broader discourse on the integration of fatwas into national legal practice.

KAFĀ’AH AS THE BASIS FOR PROHIBITING INTERFAITH MARRIAGE IN THE COMPILATION OF ISLAMIC LAW: A CONTEMPORARY ANALYSIS OF MAQĀṢID AL-USRAH

Elyas Desima Saputra, Ermanita Permatasari, Mahfud — Wed, 10 Sep 2025 00:00:00 +0000

Purpose - Interfaith marriages among Muslims in Indonesia are becoming increasingly common. These marriages are legally conducted by exploiting the dualism of interpretation of interfaith marriage laws in the Marriage Law. Amidst this debate, the Compilation of Islamic Law (Kompilasi Hukum Islam/KHI) redefined the concept of kafā’ah as the absolute basis for prohibiting interfaith marriages. This provision is one of the efforts to maintain the welfare of marriage that is relevant to the spirit of maqāṣid al-Usrah. This study aims to analyze the repositioning of the concept of kafā’ah as the basis for prohibiting interfaith marriage in the KHI using a contemporary analysis of maqāṣid al-usrah.

Method - This qualitative study used library research methods and was descriptive-analytical in nature. The primary data in this study is the KHI, especially the articles that discuss kafā’ah. Secondary data were obtained from the Marriage Law and various scientific literature relevant to the research theme. Data were collected through documentation techniques and analyzed using content analysis techniques.

Findings - The results of the study show that the KHI explicitly places religious similarity as a fundamental and absolute criterion of kafā’ah, as stated in Article 40 letter c and Article 44 of the KHI, which prohibits marriage between Muslims and non-Muslims.

Originality/Value – The basis for this prohibition is reinforced by the analysis of maqāṣid al-usrah, especially in maintaining ḥifẓ al-dīn (protection of religion) and ḥifẓ al-nasl (protection of offspring). Religious differences are seen as having the potential to cause ideological disorientation, conflicts in the education of children, and complications in inheritance law, all of which threaten the integrity and harmony of Muslim families. This prohibition is a preventive measure by the KHI to protect the interests of Muslims and ensure the creation of harmonious families based on Islamic laws.

Contribution/Limitation of Research – This study contributes to the theoretical development of Islamic family law thinking and knowledge, particularly in terms of legislative studies and family welfare values in the contemporary context. However, this study is still limited to normative analysis through documentary studies of the KHI.