PERLINDUNGAN HAK-HAK PEREMPUAN DAN ANAK PADA PUTUSAN PERCERAIAN DI PENGADILAN AGAMA PAMEKASAN TAHUN 2012-2014

Siti Musawwamah, NIM. 09.3.781/BR (2019) PERLINDUNGAN HAK-HAK PEREMPUAN DAN ANAK PADA PUTUSAN PERCERAIAN DI PENGADILAN AGAMA PAMEKASAN TAHUN 2012-2014. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

In the period of 2012 to 2014, the Religious Court of Pamekasan had received, examined and decided on various types of cases in the number of 5,199 verdicts, consisting of 3,683 (70.84%) divorce verdicts and the remaining 1,516 (29.16%) as other verdicts. The divorce verdicts consisted of 1,503 (40.81%) files for talaq(the husband’s right to dissolve the marriage by simply announcing to his wife that he repudiates her)and 2,180 (59.19%) files for khul’(a wife to initiate a divorce through the mutual consent of the husband or a judicial decree). In the files for talaqand khul’, there were 117 (7.78%) and 8 (0.37%), respectively, decisions regarding the determination of the rights of women and children. The data could be interpreted that, first, there was a dominance of the quantity of divorce cases over other cases, that the household problems in the married couple in Pamekasan were classified as very high in quantity (70.84%) which had to end in divorce. Second, there was the dominance of divorce cases that were interesting to note that women or wives showed extraordinary courage to break their life partner status as husband and head of the family, although it was commonly known that they had been blessed with children. Third, both sides, either the husband or the wife who applied for divorce, were more focused on filing a basic claim, i.e., breaking the marriage bond rather than submitting an additional claim both for themselves and their offspring even though it was commonly known despite the presence of children. The description of the problems of women and children in divorce verdicts was enough to be the reason for this study to: (1) find a form of determining the rights of women and children in divorce verdicts in the study site, (2), identify factors that influenced the determination, and ( 3) determine the implications of divorce verdicts on efforts to protect women and children. This qualitative studyused a sociolegal research design,an explorative ex-post facto research type, and symbolic interactions. The researcherwas positioned as an instrument or research data collector. The source of data in this study was secondary and tertiary data and 3 types of legal materials, i.e., primary legal materials, secondary legal materials, and tertiary legal materials collected by interactive and non-interactive methods. The research informants were determined by purposive sampling technique with the principle of funnel design, expanded and developed with the snowball sampling technique. The data analysis was carried out during data collection (interviewconfirmation) and document content through a systematic process of tracking and regulating the conceptual themes of the focus of the study. The validity test of the data was carried out by confirmatory techniques, peer discussion, negative case analysis, and tracking data suitability. Based on the findings of this study, it was concluded that: first, the form of determining the rights of women and children in talaqverdicts was based on the initiative of women as the one to file a reconciliation claim by 91 (6.05%) verdicts and based on the judge’s initiative through ex officio institutions by 26 (1.73%) verdicts while the khul’ verdict was based on the initiative of women to submit thecumulative claims by 8 (0.37%). This data could be interpreted that the determination of the rights of women and children in the religious court decisions required women to actively file claims because the judges (in general) were still legalism or positivism. They were very obedient in holding the Ultra Petita or Ultra Petitum Partium legal doctrine, i.e., being prohibited from deciding more than what is requested or not requested even though this doctrine can be deviated if the demands are interconnected.Second, in this study there were three factors revealed that influenced the determination of women’s and children’s rights in the religious court’sverdicts, at least consisting of elements of legal material, legal structure, and legal culture. For example, divorce cases were generally decided by verstek. The women (wives) only filed a primary lawsuit, i.e., a lawsuit to sever their marriage ties. They did not demand any rights unless they wanted to be immediately free from the turmoil and domestic crisis or domestic violence because they felt and experienced severe suffering so that they did not think to propose other rights other than the termination of marital ties as selfliberation. For them, divorce was considered a pair of ‘sharp scissors’as the breaker of the chain of violence. Third, the implications of the verdicts on the protection of women and children were largely determined by the mindset of judges and the couple. In this study, it was concluded that the implications of the verdicts on the protection of women and children resulted in three typologies, i.e., a neutral one, the one that protected women and children, and the one that did not protect women and children. In particular, the implications of decisions on child protection were largely determined by the lawsuit filed by the mother regarding the determination of the hadlonah and the livelihood of the child. In the talaq verdicts (1,503 decisions), there were 2 which stipulated hadlonah (0.13%), 74 for the livelihood of the child (4.92%), and 3 that determined hadlonah and the livelihood of the child (0.20%). In the khul’ (2,180 cases), there were 2 verdicts stipulating hadlonah (0.09%) and 2 stipulating the child income (0.09%) and 1 stipulating hadlonah and the livelihood of the children (0.04%). This data could be interpreted that only a few children as the victims of divorce received legal protection because there was no certainty about who was responsible for the hadlonah and the living cost. The implication was that women as wives had to bear the obligation that actually it was not their obligation while the husbands were free from any obligations. In this position, there had been impunity (omission) of the husband by the court.

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