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PANDANGAN PENGHULU TERHADAP STATUS WALI HAKIM DALAM PERNIKAHAN SEORANG WANITA YANG MASIH MEMILIKI WALI NASAB (STUDI DI KUA KAPANEWON DEPOK, SLEMAN, YOGYAKARTA)
A guardian constitutes one of the essential pillars of marriage in Islamic law and plays a fundamental role in determining the validity of the marriage contract. Article 23 of the Compilation of Islamic Law and the Regulation of the Minister of Religious Affairs Number 30 of 2005 stipulate that a judicial guardian may exercise authority only when the biological guardian is absent, cannot be presented, has an unknown whereabouts, is missing, unjustly refuses (aḍal), or is unwilling. Nevertheless, in 2024, a legal phenomenon emerged that has not been explicitly regulated, namely the refusal by the prospective bride to be married by her biological guardian who remains present and legally qualified. This study examines a case that occurred at the Office of Religious Affairs of Kapanewon Depok, Sleman, Yogyakarta. The objective of this research is to analyze the opinions of marriage registrars regarding the legal status of a judicial guardian in the marriage of a woman who still has a biological guardian, as well as to assess Islamic law and positive law perspectives on those opinions when the prospective bride refuses to be married by her lawful biological guardian. This research employs field research with a descriptive-analytical design. Data were collected through interviews with four marriage registrars at the Office of Religious Affairs of Kapanewon Depok. A normative juridical approach was applied to examine the applicable legal norms and regulations. The theoretical framework is based on the Islamic legal maxim that ad-ḍararu yuzalu and iżā ta‘āraḍat mafsadatān ru‘iya a‘ẓamahumā ḍararan biirtikābi akhaffihimā, on positive legal provisions as stipulated in Article 23 of the Compilation of Islamic Law and the Regulation of the Minister of Religious Affairs Number 30 of 2005. Data analysis was conducted qualitatively using the Miles and Huberman model, which includes data reduction, data presentation, and conclusion drawing. The findings indicate that there was one case out of 181 instances involving the appointment of a judicial guardian between 2023 and December 2025, there was one case in which the prospective bride refused to be married by her legally entitled lineage guardian due to an unharmonious family relationship and a request for material compensation. In handling this case, the penghulu at KUA Kapanewon Depok prioritized the natural guardian as the main guardian, while the judge guardian was used as a last resort through the decision of the Religious Court in accordance with Article 23 of the KHI. From the perspective of Islamic law, the use of a judge guardian is evaluated based on the principles of ad-ḍararu yuzalu and iżā ta‘āraḍat mafsadatān ru‘iya a‘ẓamahumā ḍararan bi irtikābi akhaffihimā, which emphasize choosing the lesser harm when two harms conflict, with mediation as a precautionary measure. From the perspective of positive law, the procedures followed comply with the applicable regulations. Nevertheless, the study identifies a normative gap in the KHI regarding the prospective bride’s refusal of her natural guardian, indicating the need for regulatory updates to make the law more responsive to contemporary social realities.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
PANDANGAN PENGHULU TERHADAP STATUS WALI HAKIM DALAM PERNIKAHAN SEORANG WANITA YANG MASIH MEMILIKI WALI NASAB (STUDI DI KUA KAPANEWON DEPOK, SLEMAN, YOGYAKARTA) (Text)
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297.577 Hukum Keluarga Islam, Bimbingan Pernikahan, Poligami, Perceraian, Iddah, Pengasuhan Anak)