KONSTRUKSI DAN INTERPRETASI HUKUM KONSEP NUSYUZ DALAM PENYELESAIAN PERKARA PERCERAIAN DI PENGADILAN AGAMA JAWA TIMUR

Nor Annisa Rahmatillah, NIM.: 19303012005 (2024) KONSTRUKSI DAN INTERPRETASI HUKUM KONSEP NUSYUZ DALAM PENYELESAIAN PERKARA PERCERAIAN DI PENGADILAN AGAMA JAWA TIMUR. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The concept of nusyuz has mentioned in articles number 84, 149, and 152 of the Kompilasi Hukum Islam (KHI). These nusyuz articles are considered to contain gender bias, as its only regulate the disobedience (nusyuz) of wife. This is occurred due to the fact that the concept of nusyuz in the KHI refers to the classical fiqh provision, that tend to interpret nusyuz as wife’s disobedience to husband in family relations. Additionally, considering that the KHI becomes the main reference for judges in deciding cases, the court decisions in divorce cases with nusyuz indication seem to show a discrimination effect against women, overlooking the possibility of nusyuz by husband in general. This research examines and analyze the perspective and legal practice of nusyuz, emphasizing three research issues: judges’ response to the concept of nusyuz put forward by women activities, judges’ interpretation to the concept of nusyuz in resolving divorce cases, and factors influencing the difference of judges’ understanding while deciding divorce cases with nusyuz indication. This is qualitative research with legal-social approach. The primary data of this research is gathered from seven decisions of Religious Court, interviews, and questionnaires which distributed to fourteen of the Religious Court judges in East Java. Then, the data is analyzed by two main theories; Max Weber’s theory of rationality and legal internalization theory. Initially, the result revealed that the Religious Court judges in East Java have different understandings and perspectives regarding the concept of nusyuz. Among the fourteen judges interviewed, three of them believe that nusyûz can be attributed to both husband and wife, while others believe that nusyuz can only be attributed to the wife. Moreover, out of seven court decisions, five are reported that nusyuz is attributed to the wife, and two other decisions revealed that it could be attributed to both husbands and wives. Although it seems discriminant, some judges respond positively to the views of equality advocates such as Faqihuddin Abdul Kodir, Siti Musdah Mulia, and Zaitunah Subhan. Secondly, although some of judges disagree that nusyûz can be also labeled on husband, they still agree with neglect of financial support as an act of violence, as stipulated in the Undang-Undang Penghapusan Kekerasan Dalam Rumah Tanga (Domestic Violence Act), where if wife files for divorce on these ground issue, the judges grant the request. Lastly, different judges’ understanding ragrding the concept and legal practice of nusyuz are influencing by various factors, including education, perspective, the dominance of classical fiqh, the sacredness of the concept of nusyuz, and the prevalence of it. These finding highlight challenges in efforts to reform protection for women related to the concept of nusyuz in divorce cases, as judges perceive that neglect in family relations have accommodated in Kompilasi Hukum Islam (KHI), Undang-Undang Number 23/2004 concerning the elimination of domestic violence, and SEMA number 2/2019.

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