PERTIMBANGAN HUKUM HAKIM DALAM PUTUSAN CONTRA LEGEM DI PENGADILAN AGAMA PEKANBARU DALAM PERSPEKTIF MASLAHAH MURSALAH

Muhammad Hafis, S.H, NIM.: 20203012020 (2022) PERTIMBANGAN HUKUM HAKIM DALAM PUTUSAN CONTRA LEGEM DI PENGADILAN AGAMA PEKANBARU DALAM PERSPEKTIF MASLAHAH MURSALAH. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Compilation of Islamic Law (KHI) in Indonesia which was promulgated through RI Presidential Instruction No. 1 of 1991, as well as Law no. 16 of 2019 concerning marriage is a provision for Religious Court judges to resolve cases submitted, thus normatively Religious Court judges must refer to these provisions. However, the judges have the authority to interpret the existing provisions. Moreover, judges in Indonesia can resolve cases by ignoring existing provisions (contra legem), including judges at the Pekanbaru Religious Court. This study focuses on child custody cases in case No. 1835/Pdt. G/2018/PA. Pbr. Joint property lawsuit No. 1914/Pdt. G/2018/PA. Pbr. Distribution of obligatory wills No. 1266/Pdt. G/2018/PA. Pbr and adoption of adopted children No. 181/Pdt. P/2021/PA. Pbr by using mas}lah}ah mursalah perspective analysis. This research is qualitative by using the philosophy of Islamic law approach. The primary data in this study is a copy of the decision of the Pekanbaru Religious Court which was terminated with the concept of contra legem regarding child custody, joint property, distribution of obligatory wills and adoption. The results of this study show. First, in several cases the judges of the Pekanbaru Religious Court did not apply existing provisions to resolve several cases related to child custody rights not yet mumayyiz in the mother's consent, distribution of joint assets in marriage and distribution of obligatory wills in cases of adoption. In the case of raising a child with the consent of the nanny, the judge grants the right to care for the mother taking into account religious protection and gives the right to visit the mother. Meanwhile, in cases of sharing joint property, the judges gave more shares to the wife by emphasizing the double role of the wife inside and outside the home for the sake of gender justice. As for the case of granting a mandatory will, the judges give part of the will to the adopted child even though the appointment is done informally for the sake of showing love and humanity. Second, viewed from the perspective of mas}lah}ah mursalah, the attitude and decisions of the judges in several cases with the contra legem decisions mentioned above confirm the realization of the concept of mas}lah}ah mursalah which prioritizes protection of religion in parenting cases, reflecting justice in matters of joint property. and consideration of the realization of humanity in cases of adoption.

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