PERTIMBANGAN HAKIM DALAM PENOLAKAN DISPENSASI KAWIN: STUDI TERHADAP PENETAPAN PA MOJOKERTO DALAM PERKARA NOMOR 149/Pdt.P/2024/PA.Mr.

Moh. Haikal Balya Hafidzal Bahroin, S.H., NIM.: 23203012082 (2025) PERTIMBANGAN HAKIM DALAM PENOLAKAN DISPENSASI KAWIN: STUDI TERHADAP PENETAPAN PA MOJOKERTO DALAM PERKARA NOMOR 149/Pdt.P/2024/PA.Mr. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Underage marriage remains a serious problem in Indonesia's family law system, despite the minimum age for marriage being raised to 19 years under Law Number 16 of 2019. The significant increase in applications for marriage dispensations, including at the Mojokerto Religious Court, which has one of the highest number of applications in East Java, indicates that the practice of child marriage continues to be widespread. This study examines the judge's considerations in rejecting marriage dispensation requests in Decision Number 149/Pdt.P/2024/PA.Mr and analyzes these arguments through the perspective of al-Ghazālī's maṣlaḥah (concerning matters of law). This study employed a qualitative method with a normative-empirical approach, using literature review and interviews with judges as sources of data verification. Data were obtained from court ruling documents, laws and regulations, and literature related to marriage dispensations and maṣlaḥah theory. The analysis was conducted to understand the legal rationale of the panel of judges in prioritizing child protection and preventing harm, in accordance with the principle of al-ḍarūriyyāt al-khams. The results of the study indicate that the rejection of the marriage dispensation application at the Mojokerto Religious Court was based on the psychological and economic unpreparedness of the two prospective brides and grooms as regulated in Law Number 16 of 2019 and Supreme Court Regulation Number 5 of 2019. The panel of judges considered that the prospective wife's pregnancy could not be used as an urgent reason to set aside the marriage age limit because the law still provides protection for children who will be born without having to marry. In addition, the recommendations of P2TP2A, the principle of child protection, and the fiqh principle of dar'u al-mafāsid muqaddamun 'alā jalbi al-maṣāliḥ strengthen the judge's consideration in prioritizing the prevention of harm. Determination Number 149/Pdt.P/2024/PA.Mr. shows that the panel of judges prioritized the interests of the ḍarūriyah level as formulated by Imam al-Ghazālī, especially the protection of life, mind, descendants, and property, so that the reason for maintaining family honor was only seen as a maṣlaḥah ḥājiyah that could not override fundamental interests. This determination emphasizes that marriage dispensation is not the main solution for childbearing, but must consider the long-term impact on the future of the family and social sustainability.

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