DINAMIKA PENAFSIRAN PRINSIP KEPENTINGAN TERBAIK DALAM PERKARA HADHANAH DENGAN RIDDAHNYA PIHAK PEMOHON/TERMOHON

Ali Akbar BA, NIM.: 20203012110 (2023) DINAMIKA PENAFSIRAN PRINSIP KEPENTINGAN TERBAIK DALAM PERKARA HADHANAH DENGAN RIDDAHNYA PIHAK PEMOHON/TERMOHON. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Hadhanah cases are cases that color many courts. Among the cases filed were related to the approval of the Petitioner/Respondent. In Article 105 paragraph 1 of the Compilation of Islamic Law, it is stated that a child who has not yet been mumayyiz is the right of the mother. Meanwhile, the Supreme Court Jurisprudence of the Republic of Indonesia Number 210/k/AG/1996 contains an abstraction that religion is a requirement for whether or not a mother's hadhanah rights are released for her child who has not yet reached mumayyiz.. In the decisions studied by the researcher, it turns out that the judges at the Religious Courts decided with different decisions in granting hadhanah rights. Based on the things above, the researcher is interested in researching by proposing three problem formulations: First, how do judges at the Religious Courts view riddah in resolving hadhanah conflicts after divorce? Second, why are there different views and attitudes of the judges in viewing the case of hadhanah with the approval of the Petitioner/Respondent? Third, is the judge's legal attitude in the case of hadhanah in relation to riddah in accordance with the principles and objectives of establishing Islamic law? The research approach used is empirical juridical, in which the researcher examines legal provisions in the form of decisions by referring to legal norms and legal considerations as stipulated in the law on hadhanah. In this study, the researcher also analyzed the results of observations in the form of judge's decisions related to the approval of the Petitioner/Respondent. The judge's decisions used are: First, the East Jakarta Religious Court Decision Nu. 1700/Pdt.G/2010/PAJT. Second, Decision of the High Religious Court of Jakarta Nu. 135/Pdt.G/2011/PTA.JK., Third, Decision of the Religious Court of Maumere Nu. 1/Pdt.G/2013/PA.MUR. Fourth, the Decision of the Sleman Religious Court Nu. 773/Pdt.G/2020/PA.Smn. Fifth, the Decision of the Tangerang Religious Court Nu. 1429/Pdt/G/2013/PA.Tng. Meanwhile, the secondary data used are Indonesian laws and regulations which are the primary source of law and secondary sources of law in the form of journals or research related to hadhanah rights with the approval of the Petitioners/Respondents. The results of the study show that: First, in settling the hadhanah case with the approval of the Petitioner/Respondent in the Religious Courts, the judges have different views that emphasize not only the blessing, but also the caregiver's ability to care for and the closeness of the child to the caregiver. Second, there are 4 factors that cause differences in judges' views on the riddah of hadhanah cases: understanding of fiqh and fiqh rules among judges in one case, understanding of laws and regulations regarding hadhanah and understanding of the best interests of children which are influenced by cultural differences and understandings of religious protection. Third, of the 5 decisions studied, the judges at the Religious Courts have tried to refer to the principles and objectives of enacting Islamic law by considering the priority scale for the purposes of enacting Islamic law and other aspects, namely the scope of the benefit itself and the principle of the strength aspect of one benefit that must take precedence in the interests of best for children. This can be seen in the difference in decisions where parties who are pleased with them are given the right of gift in some cases and ignored in some other cases.

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