Gender inequality and judicial discretion in Muslims divorce of Indonesia

Ramadhita, Ramadhita; Ali, Mahrus; Bachri, Syamsul

doi:10.1080/23311886.2023.2206347

Cited by 3 publications

(3 citation statements)

References 71 publications

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“…Judges are required to consider various phenomena about deciding cases outside the written rules, namely by exploring the norms that live and apply in society for the sake of justice. The role of judges in upholding justice through discretion can be seen in several cases, for example in the issue of marriage dispensation 56 , divorce procedures that prioritize gender equality 57 , and also in the issue of inheritance of heirs of different religions through mandatory wills (wasiat wajibah) 58 . These are the provisions of Law Number 48 of 2009 concerning Judicial Power in Article 5 paragraph (1) which states: "Judges and constitutional judges are obliged to explore, follow, and understand the values of law and the sense of justice that lives in the community".…”

Section: Judge's Discretionmentioning

confidence: 99%

Contextualizing Islamic Inheritance Law in Indonesia: Addressing Negative Stigma

Bachri,

Sudirman,

Zuhriah

et al. 2024

jua. jurnal. penelitian. dan. studi. hukum. islam.

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Islamic inheritance law is stigmatized due to its rigidity and conservativity. The rigidity and conservatism of Islamic inheritance can be seen in the view that Islamic inheritance rules cannot be changed or modified. In addition, the assumption of Islamic inheritance rules does not consider the social developments that occur over time. This research aims to explore how Islamic inheritance law is applied in Indonesia and how contextualization is carried out in response to existing stigma. This research employs a qualitative study with a normative juridical approach. The research data is derived from documents and texts on Islamic inheritance law and concrete cases of contextualization of Islamic inheritance law in Indonesia in different situations and contexts. The data are analyzed using descriptive interpretative techniques with the application of Amina Wadud's hermeneutics of tauhid. The research findings indicate that Islamic inheritance law in Indonesia has undergone contextualization, thus negating the negative stigma attached to Islamic inheritance. Contextualization is achieved by understanding and advocating Islamic inheritance law in the Indonesian context, reconstructing the basic concepts of Islamic inheritance law according to the Indonesian context, and promoting the resolution of inheritance conflicts through consultation and mediation. This research offers a model of inheritance division applied in Indonesia that is contextual and flexible based on Amina Wadud's hermeneutics of tauhid.

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Section: Judge's Discretionmentioning

confidence: 99%

Contextualizing Islamic Inheritance Law in Indonesia: Addressing Negative Stigma

Bachri,

Sudirman,

Zuhriah

et al. 2024

jua. jurnal. penelitian. dan. studi. hukum. islam.

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“…71 Hal ini bertujuan untuk melindungi hak-hak perempuan dalam pernikahan, dan mereka juga dapat memperoleh hak nafkah yang belum dibayarkan selama pernikahan. 72 Namun, perceraian di Indonesia juga masih meninggalkan permasalahan. Misalnya terkait hak istri pasca perceraian.…”

Section: Reformasi Hukum Keluarga Menguatkan Hak-hak Perempuan?unclassified

Perceraian dan Penguatan Hak-hak Perempuan: Reformasi Hukum Keluarga di Mesir, Indonesia dan Pakistan

Rizki Amar,

Jamilatuz Zahrah,

Lisa Hertiana

2024

BUSTANUL FUQAHA: Jurnal Bidang Hukum Islam

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One of the motives for family law reform in the Islamic world is to strengthen the rights of women who tend to be discriminated against and subordinated. Egypt introduced its first family law reform by passing Laws No.25 of 1920 and 1929. Pakistan, through the Muslim Family Law Ordinance of 1961, regulates the issue of divorce and guarantees women's rights in it. Meanwhile, in Indonesia the rules regarding divorce are contained in the 1974 Marriage Law and the Compilation of Islamic Law. This article reviews the development of family law in Egypt, Indonesia and Pakistan, highlights the approaches and methods used in reform, and explores the extent to which family law reforms strengthen women's rights, especially in the field of divorce. The method used in this article is a literature study, by collecting secondary data from relevant literature and then describing it. The findings of the study show that family law reforms in Egypt, Indonesia and Pakistan use intra-doctrinal reform and extra-doctrinal reform approaches. Substantively, the reforms have strengthened women's rights in at least two aspects: first, the limitation of the husband's right to divorce, and second, the expansion of women's access to apply for divorce. Although subtantively the law has strengthened women's rights, in practice divorce and its settlement in the three countries still leave problems and sometimes harm women.

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“…One video went viral when a social media activist criticized her traditionalist viewpoint and labeled her a "lizard-level moron" (Syafi'i, 2022). Nowadays, the fulfillment of gender equality has been regarded as a standard for achieving justice (Mubarrak, 2016;Ramadhita et al, 2023).…”

Section: Introductionmentioning

confidence: 99%

Revisiting ‘Iddah: A Critical Analysis of Gender Equality in Indonesian Feminist Islamic Legal Discourse

Abdullah,

Putri,

Salhein

2023

JURIS

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Feminist legal theory highlights the persistence of women's subordination within the prevailing legal framework and emphasizes the importance of legal mechanisms that promote women's emancipation and equality. So far, the discourse of feminist Islamic law in Indonesia has caused more rejection, particularly with the emergence of the Counter Legal Draf-Kompilasi Hukum Islam (CLD-KHI), which is considered contrary to Islamic law, one of which is in the provisions of 'iddah. This study seeks to examine and analyze the demand for gender equality in the 'iddah period as manifested in the CLD-KHI. Using a qualitative research approach emphasizing library-based research on the draft in question and the supporting writings, this study bases its content analysis on the theory of Maqāṣid al-Sharī'ah, with al-Shatibi as the primary source. The results of this study reveal an insufficiency in the justification of the plea for gender equality in the enforcement of 'iddah from the view of Maqāṣid al-Sharī'ah. From the conventional perspective of Islamic law, the principle of gender equality as a maqṣad does not have a solid foundation, so it leads to rejection rather than acceptance. Therefore, to bear fruit, any legislative effort in the field of Islamic law must be carefully shaped by methodologies and ethos derived primarily from its tradition.

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Gender inequality and judicial discretion in Muslims divorce of Indonesia

Cited by 3 publications

References 71 publications

Contextualizing Islamic Inheritance Law in Indonesia: Addressing Negative Stigma

Contextualizing Islamic Inheritance Law in Indonesia: Addressing Negative Stigma

Perceraian dan Penguatan Hak-hak Perempuan: Reformasi Hukum Keluarga di Mesir, Indonesia dan Pakistan

Revisiting ‘Iddah: A Critical Analysis of Gender Equality in Indonesian Feminist Islamic Legal Discourse

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