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PANDANGAN PENGHULU TERHADAP KEBIJAKAN PENOLAKAN PERMOHONAN NIKAH DUDA DALAM MASA SYIBHUL ‘IDDAH DENGAN PEREMPUAN LAIN HAMIL 7 BULAN
This research originated from the issuance of Circular Letter Number P-005/DJ.III/Hk.00.7/10/2021 concerning Marriage during the Wife's ‘iddah Period, which regulates the waiting period for a man after divorce so that he does not engage in covert polygamy, which is not permitted by the Indonesian Ministry of Religious Affairs. This provision faced problems when dealing with a case of a widower requesting to marry another woman whom he had impregnated for seven months during his syibhul ‘iddah period, thus creating a dilemma between accepting it for the sake of protecting the child or rejecting it by adhering to the provisions of the applicable circular letter. This study uses a normative-empirical approach, focusing on identifying the views of religious officials in Yogyakarta on the policy of rejecting a widower's request to marry another woman who is seven months pregnant during the syibhul 'iddah period. The theories used by the researcher are Gustav Radbruch's theory of legal justice and maṣlaḥah mursalah. This research is a field research with primary data in the form of interviews with four KUA religious leaders in Yogyakarta. In addition, the research uses secondary data in the form of journals, books, theses, regulations, and other relevant sources. The research data analysis is qualitative using inductive methods. The results of this study show that: First, the penghulu have diverse views on the policy of rejecting marriage applications, as seen in the penghulu of the Banguntapan KUA, Prambanan KUA, and Mantrijeron KUA, who support the rejection policy on the grounds of compliance with the SE as Penghulu, protecting the honor and ethics of the ex-wife, optimizing the function of the SE, and providing a legal solution for the child to be born. Additionally, the Mantrijeron KUA provided support but directed that marriage be pursued through a court ruling. In contrast, the Umbulharjo KUA penghulu rejected/resisted the policy of rejecting marriage applications on the grounds that the SE was an appeal and not binding, that it was in the best interests of the child through maqāṣid syarī‘ah, that the SE syibhul ‘iddah had no basis in classical fiqh, and that it protected legal certainty and the protection of children. Second, the head of the KUA's view of the policy of rejecting marriage applications from the perspective of legal justice The head of the KUA who supports the rejection emphasizes administrative legal certainty and the protection of the ex-wife, but is considered partial because it has the potential to ignore the rights and legal certainty of the child. Conversely, religious leaders who resist the rejection policy emphasize substantive justice, legal benefits, protection of children as the most vulnerable subjects, and harmony in the hierarchy of regulations. From the perspective of maṣlaḥah mursalah, the views of the religious leaders who resist are more in line because they place comprehensive benefits through the principles of ḥifẓ al-nasl and ḥifẓ al-nafs as well as the prevention of greater mafsadat.
FAKULTAS SYARIAH DAN HUKUM, UIN SUNAN KALIJAGA YOGYAKARTA
PANDANGAN PENGHULU TERHADAP KEBIJAKAN PENOLAKAN PERMOHONAN NIKAH DUDA DALAM MASA SYIBHUL ‘IDDAH DENGAN PEREMPUAN LAIN HAMIL 7 BULAN (Text)
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297.577 Hukum Keluarga Islam, Bimbingan Pernikahan, Poligami, Perceraian, Iddah, Pengasuhan Anak)