DISPARITAS PUTUSAN HAKIM DALAM PERKARA DISPENSASI KAWIN KARENA KEHAMILAN DI PENGADILAN AGAMA BANJARNEGARA

Nasta’in, S.H., NIM.: 20203012081 (2023) DISPARITAS PUTUSAN HAKIM DALAM PERKARA DISPENSASI KAWIN KARENA KEHAMILAN DI PENGADILAN AGAMA BANJARNEGARA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Marriage dispensation request with pregnancy reason was submitted to religious court so that brides can get marry. It was explained in chapter 7 laws 16 Year 2019 after revision in chapter 7 laws 1 year 1974. But judges can refuse the request. It's not always be granted. So the compiler found disparity of judges verdict. The compiler took two verdicts to clarify the difference of judgement in the case. They are 66/Pdt.P/2019/PA/.Ba and 1/Pdt.P/2019/PA.Ba about dispensation request with pregnancy reason. This research researched disparity reasons and basic reasons of judge in deciding the case then resulting a different verdict, and the disparity of both verdicts. This research is a study of legal practice in court. It studied by using applicable legal norms or laws and regulations to see the implementation of law by judges and the basis and legal considerations used. Therefore, the approach in this study is juridical empirical. Then, the data analysis method is descriptive analytic. The primary data used are the verdicts of marriage dispensation cases, they are 66/Pdt.P/2019/PA.Ba and 1/Pdt.P/2019/PA.Ba. This research also based on the results of interviews with several judges at the Banjarnegara Religious Court. The results showed that, first, the disparity of verdicts in the Religious Courts was due to differences of implementation aspects in the verdicts, like formal, material, philosophical, and legal reasoning aspects. Regarding the formal aspects, refused verdict used other legal basis besides laws. While related to the material aspects, the judges refused verdict used UUPA, KHI and Islamic Law. In relation to the philosophical aspect, the judges refused the verdict considered the religious and cultural aspects of society by seeing the value of distributive justice and benefits for the people, while the granted one for substantive justice reflects certainty and benefits of law for the parties. Legal reasoning's aspects of refused the verdict used case research and run casuistically in the society. Second, the judge refused verdict and give priority to the benefit aspect as a bigger precedent cutter about adultery ḥifẓ al-dīn, children marriage ḥifẓ al-nafs, as motivated by the judge's understanding and experience in handling marriage dispensation cases. Meanwhile, granted verdict have priority to benefits of ḥifẓ al-nafs appelant and the fetus ḥifẓ al-nasl.

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