PANDANGAN PENGHULU KUA DI KABUPATEN BANTUL TERHADAP PRAKTIK WALI HAKIM SYAR’I DALAM PERKAWINAN

Akhmad Fadly S., NIM.: 20203011082 (2022) PANDANGAN PENGHULU KUA DI KABUPATEN BANTUL TERHADAP PRAKTIK WALI HAKIM SYAR’I DALAM PERKAWINAN. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Wali hakim syar’i is a judge who acts as a guardian for the marriage of a child resulting from adultery. In the legal system of Islamic marriage in Indonesia, a child born as a result of sex outside of marriage can be considered a legitimate child if the two male and female partners are married and the birth of the child occurs within the marriage. This can be seen in Article 42 of Law Number 1 of 1974 concerning Marriage (UUP) and Article 99 paragraph (1) of the Compilation of Islamic Law (KHI). For some penghulu, when the child will marry, must use a guardian judge. Children resulting from adultery for them are children who are included in the category of not having a guardian, so that when they are about to get married, the child resulting from adultery must be married off by a guardian judge. This opinion follows the opinion of the schools of jurisprudence that they believe in. Some other penghulu stated that the child is a legitimate child, so that the right to become a guardian is a lineage guardian. This study uses a sociological-normative approach. To dissect the analysis used obedience theory and responsive legal theory. The obedience theory is used to see the behavior of the penghulu as a state apparatus who is required to comply with and carry out government programs, while the responsive legal theory is used to see the urgency of changing the UUP and KHI, especially articles related to legitimate children. This research method is a field research with a penghulu as the primary data source, which is supported by secondary data in the form of legislation, fiqh books as well as public opinion and religious leaders. Data was collected by observation, interviews and documentation. The results of this study found that, first, the practice of wali hakim syar’i was carried out on the marriage of the first daughter of a pregnant married couple. The marriage is carried out with the guardian judge, in this case the Head of the District KUA. In its implementation, the penghulu as a judge acts as a guardian to marry the prospective bride. However, in the registration of the marriage, it is carried out by a lineage guardian. Second, the reason for the penghulu practicing wali hakim syar’i is that the rules contained in the UUP and/or KHI are not in accordance with the fiqh doctrine they profess. For those who do not practice this, the reason is that the UUP and KHI are rules that must be implemented by the penghulu and are Indonesian fiqh. This reason cannot be fully blamed, because the penghulu's obedience to existing laws, both fiqh and legislation, according to Achmad Ali is obedience to interests, at least the interests of inner satisfaction. Third, the articles regarding the legitimacy of children are not yet in an urgent condition to be changed by considering the aspects of the benefit they bring. Thus the practice of wali hakim syar’i does not need to happen again.

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