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DISKRESI HUKUM HAKIM DALAM PERMOHONAN DISPENSASI KAWIN: SIKAP PENOLAKAN HAKIM PENGADILAN AGAMA BANTUL
The phenomenon of child marriage remains a serious challenge in child protection in Indonesia, despite the minimum age of marriage having been regulated under Law No. 1 of 1974 and equalized through Law No. 16 of 2019. In complex social realities, petitions for marriage dispensation are still frequently submitted to the courts, often justified by moral concerns such as premarital sexual relations or close relationships. However, crucial aspects such as age readiness, education, economic stability, and family support are often overlooked. This study focuses on examining how judges at the Bantul Religious Court exercise their legal discretion in responding to marriage dispensation petitions, particularly in cases of rejection. Unlike the general trend that tends to be permissive toward reasons such as premarital sexual relations, judges in Bantul have demonstrated a tendency to reject such petitions. This research also aims to reveal the basis of judicial considerations and legal arguments in interpreting “urg This study adopts an empirical juridical approach. Through descriptive-analytical methods, data were collected from an examination of 13 court rulings rejecting marriage dispensation petitions at the Bantul Religious Court between 2020 and 2023, as well as in-depth interviews with the judges handling the cases. The analysis was conducted to gain a comprehensive understanding of how judges interpret the concept of “urgent reasons” contextually. The study applies theories of legal discretion and rational action to highlight the role of judges as social actors who not only apply the law formally but also take into account humanitarian values and the best interests of the child in their decisions. The findings show that the judges of the Bantul Religious Court reject marriage dispensation petitions even when applicants raise arguments such as premarital sexual relations or fears of such relations due to close proximity. The rejections are based on positive law—namely Law No. 1 of 1974, Law No. 16 of 2019, and Supreme Court Regulation (PERMA) No. 5 of 2019—as well as on the concepts of maṣlahah mursalah, the principle of al-darūriyyāt al-khamsah, and the protection of human dignity (ḥifẓ al-‘ird). Judges also consider essential factors such as the child’s young age, lack of educational readiness, the prospective husband’s unstable economic condition, and limited family support. Through rational and substantive discretion, judges aim to prevent long-term negative consequences such as school dropouts, structural poverty, and early divorce. Such rejections are not a denial of religious values but rather a legal responsibility to protect children both as family members and as citizens.
FAKULTAS SYARI’AH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
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