PEMBAHARUAN HUKUM KELUARGA ISLAM DI INDONESIA: REINTERPRESTASI HUKUM NAFKAH MUT’AH BERBASIS PARADIGMA KERENTANAN

A Hashfi Luthfi, NIM.: 21303012005 (2026) PEMBAHARUAN HUKUM KELUARGA ISLAM DI INDONESIA: REINTERPRESTASI HUKUM NAFKAH MUT’AH BERBASIS PARADIGMA KERENTANAN. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This study arises from the disparity between the ethical objectives of mutʿah maintenance in the Qur’an, its legal construction within Indonesia’s statutory framework, and its application in the Religious Courts. In the Qur’an and Islamic jurisprudence (fiqh), mutʿah is understood not merely as a financial obligation but also as a form of provision that embodies protection, restoration of dignity, and assurance of continued well-being for a party affected by divorce. By contrast, Indonesian legislation constructs mutʿah as an obligation of the husband and a corresponding right of the wife following divorce, thereby grounding legal protection more firmly in gender categories than in the parties’ actual conditions of vulnerability. This study aims to analyze the legal construction of mutʿah under Indonesian law, explain why the Religious Courts continue to reproduce this construction in judicial practice, and examine the extent to which the law governing mutʿah needs to be reconstructed to be more responsive to the principles of justice and vulnerability. This qualitative study employs normative-juridical, philosophical, and empirical-juridical approaches. The primary data comprise statutory and regulatory instruments governing mutʿah, particularly Law Number 1 of 1974 on Marriage, the Compilation of Islamic Law (Kompilasi Hukum Islam), Supreme Court Regulations (PERMA), Supreme Court Circular Letters (SEMA), and other relevant technical regulations. The analysis also draws upon decisions of the Religious Courts and interviews with fourteen Religious Court judges concerning the legal basis for awarding mutʿah, considerations used in determining its amount, the exercise of ex officio judicial authority, the relevance of the parties’ economic circumstances, and the possibility of awarding mutʿah based on actual vulnerability. The data are analyzed through an integrated framework combining the Maudhūʿī Nuzūlī approach, the Mubādalah perspective, the vulnerability paradigm, and John Rawls’s principle of the veil of ignorance. The study finds that the legal construction of mutʿah in Indonesian legislation represents a transformation of classical fiqh thought subsequently codified within the national legal system. In this process, the orientation of mutʿah has shifted from an instrument designed to protect the vulnerable party to a form of protection attached to gender identity, namely, an obligation imposed upon the husband for the benefit of the wife following divorce. This paradigm continues to be reproduced in the practice of the Religious Courts through the interaction between the normative provisions of the Compilation of Islamic Law, PERMA, and SEMA and judicial perspectives that remain grounded in classical fiqh constructions. Consequently, mutʿah continues to be awarded to women as a legally defined category, even where the parties’ economic circumstances and actual levels of vulnerability may indicate a different reality. These findings demonstrate that the orientation of mutʿah within the Indonesian legal system has yet to fully reflect the Qur’an’s substantive objective of protecting those rendered vulnerable by divorce. Accordingly, a reconstruction of the law governing mutʿah is necessary so that entitlement is determined not solely based on gender identity but also by taking into account the parties’ actual levels of vulnerability. Such a reconstruction would bring the law of mutʿah into closer alignment with maqāṣid al-sharīʿah, the principle of Mubādalah, and substantive justice in Islamic family law.

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