Samarah: Jurnal Hukum Keluarga dan Hukum Islam

Journal Information
ISSN / EISSN : 2549-3132 / 2549-3167
Current Publisher: Universitas Islam Negeri Ar-Raniry (10.22373)
Total articles ≅ 97
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Agustin Hanapi, Edy Yuhermansyah
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 528-544; doi:10.22373/sjhk.v4i2.7942

Abstract:
Announcing marriage is an act to spread Islamic greatness. There have never been any previous scholars who married secretly or did not announce their marriages. Currently, marriages that are carried out in secret are synonymous with elopement and are not recorded in the Religious Affairs Office. The phenomenon of underage elopement, which the locals refer to as ‘naik’ (rising), is quite prevalent in Gayo Lues District. There have been six cases occurred already in one year. A pair of students who were still under 19 without the permission of their parents or the school deliberately went to a traditional leader, begging to be married off, while some others even dared to skip the administrative procedures and directly married, thinking that the procedures could be taken care of later. However, the real-life is not as smooth as they expected, and so their marriage was not registered, eventually causing the women and children to be the victims. In this study, the focus has related the perspective of Islamic jurisprudence and legislation in Indonesia on marriage registration and the consequences for women and children when there is no marriage registration. This qualitative study used in-depth interviews, descriptive analysis methods, the empirical juridical approach, and the normative juridical approach. The results of the study showed that students who eloped in high school generally no longer continued their studies because of shame and inferiority towards their friends. Marriage registration is handled by the State or the Government through statutory regulations in order to create orderly marriage in society.
Zulhamdi Zulhamdi
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 545-567; doi:10.22373/sjhk.v4i2.6419

Abstract:
Providing decent food (breastmilk) to support the growth of children is one of the obligations of their parents and it is the gift that is given to a mother by Allah (God). This research is library research (literature research), which uses the interpretation of the Tafsir Al Misbah, the literature from books, journals, dictionaries, and other papers related to this research. It has been proven that breast milk is the best food for babies because of the diverse and complete nutritional content. The main content of breastmilk is 88% of the water that removes excess solute. Breast milk also contains carbohydrates, proteins, fats, vitamins, minerals, hormones, and growth factors. According to Quraish Shihab, radha’ah is interpreted as breastfeeding. In this case, he interpreted radha’ah as breastfeeding although breastfeeding recommendations in surah al-Baqarah is in the form of Khabar (information/news), but it means an order which obliges all mothers to carry out breastfeeding for up to two years with the responsibility of fathers in providing the needs of the family. However, it is permissible for parents to wean their children before two years if this can be bothersome, and it is also permissible for parents to let their children breastfed by other than their biological mothers if the mother is unable to breastfeed her child by herself. However, babies that are breastfeeding from other women will form a nasab (lineage) which means the baby will be forbidden to get married to a child of the woman that breastfed the baby.
Mustafa Kamal Rokan, Imam Yazid, Ahmad Makky
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 568-585; doi:10.22373/sjhk.v4i2.7259

Abstract:
The increasing number of divorces has been largely affected by technological developments, including social media, which are used in a way that may lead wives to commit nushuz behavior. This present study aimed at reconstructing the nushuz of the wife in the digital era, a concept commonly known as the wife leaving her house without the permission of the husband. As a normative study, the study applied the conceptual approach. The study collected data by using the documentation study or library research, and analyzed the data by reading, examining, linking, and interpreting the data, and then elaborated the data descriptively. The findings revealed that social media has been used as a platform to publicly show the women’s beauty, reveal their aurat (intimate parts), spread gossips, share infidelity behavior, and many others which violate the religious norms and the universal, collective, individual, local and traditional values as well. Ideally, all of these should be kept private at home, as the home itself is the place to protect anything within it. The elimination of politeness boundaries and rules of interaction between men and women as a consequence of activities on social media has made nushuz of the wife irrelevant to be interpreted simply as the wife leaving the house without the permission of the husband. The meaning of house in the physical sense and that of social media should be equal in the context of the household. Nushuz should be interpreted in a broader perspective following the increasing development of modern technologies.
Soraya Devy, Dwi Mekar Suci
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 416-442; doi:10.22373/sjhk.v4i2.6179

Abstract:
The article discusses the procedures of filing a plea to execute verdicts on providing māḍiyah maintenance and the effort to implement the verdicts in Syar’iyyah Court Banda Aceh. The study was conducted with a qualitative approach and the collected data were analyzed with a descriptive-analysis method based on Islamic law perspective. The result shows that the procedure and the legal effort to file an execution toward the verdict related to māḍiyah maintenance in Syar’iyyah Court are distinguished into two types of divorce, i.e. talak divorce and filed divorce. In talak divorce, the execution of the verdict related to maintenance is conducted during the reading of the talak pledge. In the filed divorce, the ex-wife’s lawsuit related to maintenance which is neglected by the ex-husband is entitled to be legally sued through filing a plea on execution. The phases as follows: (1) the ex-wife files a plea of execution to the court, (2) pay the execution cost, (3) aanmaning (a warning to the defendant), (4) the ex-husband and ex-wife comply with the summons by the court, (5) the court establishes executorial beslag (executing confiscation), (6) the court establishes an execution order, (7) an auction. According to the Islamic perspective, the execution of māḍiyah maintenance can be conducted following the ex-wife’s lawsuit to the court. The execution of māḍiyah maintenance can be performed by the court based on the valid provisions of executing māḍiyah maintenance in Syar’iyah Court upon consideration of benefit and expediency principles.
Riza Mulia
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 398-415; doi:10.22373/sjhk.v4i2.7052

Abstract:
The law of marriage seeks to protect joint property in the marriage bond with the hope that a quality family can be formed without any problems. Rules in law provide various reasons for formal legal guarantees for the protection of joint assets. This reason also does not escape the view of Islamic law through maqashid syar'iyah. This paper uses a normative approach. The focus of the problem in this paper is the objective of applying marital beslag outside of a divorce suit from the viewpoint of maqashid syar'iyah. The results showed that the provisions for marital beslag outside of a divorce suit were intended to maintain human needs from the financial aspect of the family that could sustain the family. In this context, protection of property helps maintain relationships between individuals (families) through the meaning contained in the text, where confiscation contains an element of family care which is also the goal of the maqasid.
Daud Rasyid Harun
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 443-476; doi:10.22373/sjhk.v4i2.8148

Abstract:
Individuals conducting commercial transactions must carefully weigh-in determining factors prior to sales purchases, either related to goods or pricing. After all, matters are secured, the involved parties can advance with a sales purchase agreement. Nonetheless, a transaction can typically be canceled post an agreement, due to circumspection on part of the seller or buyer, who is allowed to annul his/her initial plan. Islamic Sharia gives rights to transaction cancellation or activation, and this concept is called “Khiyār”. Various mazhab (Islamic schools of jurisprudence) give consent to Khiyār and its enabling guidelines. An example is in a case of defective products or discrepancy on the merchant's original product description, etc. However, depending on the individual situations, all mazhab can either have consensus or disagreement on the nature of Khiyār. This paper emphasizes the debates due to its relevancy in today’s market, which warrants further development into broader consumer protection. A qualitative methodology is used for comparison between various mazhab relating to Khiyār based on Fiqh literature. a Khiyār becomes a right for both the seller and buyer. But, depending on each unique condition, it can also be invalidated.
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 337-359; doi:10.22373/sjhk.v4i2.7068

Abstract:
In the understanding of fiqh turats, the concept of milk al-yamin is affecting the legal protection for oppressed slaves during the Jahiliyah period. According to Syahrur, the concept of milk al-yamin had similarities and differences with the marriage contract. The similarity lies in the ability to have sexual relations, while the difference is that a marriage contract is not merely a sexual relationship, but it has a legal effect on the production of the rights and obligations of a husband and wife to build a family, and other social activities related to mushaharah. Milk al-yamin does not arrive at the emergence of rights and obligations as husband and wife as a result of a marriage contract. The concept of milk al-yamin that Syahrur understands for the present context is how the legal proposition (the Quran) remains suitable with the current era, not to be eradicated historically because it is no longer relevant. He built a new logic for the concept of milk al-yamin in the present context, which is called ‘aqd ihsan. The concept of milk al-yamin understood by Syahrur enables the authorization of contractual marriages or mut'ah which were abolished according to the Sunni school of fiqh. The concept of contract marriage or mut'ah does not have general marriage conditions, because the purpose is not to build a family, but purely sexual relations, and does not belong to the category of formal marriage, although at the same time it is not haram. In consequence, the concept of milk al-yamin is not becoming a basis for legitimizing nonmarital sexual relations.
Fajri M. Kasim, Abidin Nurdin
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 375-397; doi:10.22373/sjhk.v4i2.8231

Abstract:
This study discusses conflict resolution through adat in Acehnese society according to Islamic law. Conflict resolution like this is a solution in the midst of the piling up of cases in the judiciary in Indonesia. This study uses the sociology of law theory which sees that law is a tool to control communities who can resolve conflicts, namely adat and cultural values. The data collection techniques used are; interviews and literature review. The results of this study indicate that conflict resolution with adat mechanisms in the perspective of sociology of law sees law as a tool and means to control and develop society. Law is seen as a means of community development in a better direction. In fact, the judiciary formally advocates for peace by deliberation known as mediation, this is done in the midst of piling up cases that must be resolved by law enforcers. Therefore, adat-based conflict resolution has advantages, among others, maintaining brotherhood and eliminating grudges, fast, cheap, promoting a sense of justice and elasticity. This advantage is possible because of the involvement of adat institutions as social elites that have both social and juridical legitimacy. Conflict resolution through adat is in line with the values of Islamic law, especially in the concept of al-urf, namely adat that do not conflict with sharia. The strong relationship between adat and Islam in Aceh has resulted in this pattern of conflict resolution being viable and enduring to this day.
H.Y. Sonafist, Yasni Efyanti, Ramlah Ramlah, Ali Hamzah, Faizin Faizin
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 504-527; doi:10.22373/sjhk.v4i2.7864

Abstract:
The research problems addressed in the article are the background story behind Ibn al-Muqaffa’s proposal for taqnīn, the historical background of the creation of the Islamic law codification in Indonesia, and the synchronization of ibn al-Muqaffa’s idea for taqnīn with the codification of Islamic law in Indonesia. The current study aims to unravel the view of Ibn Al-Muqaffa, an Islamic figure, about taqnīn. A biographical study was conducted by doing library research, especially on Ibn Al-Muqaffa’s proposal for taqnīn. The data collection procedure was divided into three parts i.e., orientation, exploration, focus-oriented research. Biographical research is part of a qualitative study that uses data analysis techniques and literature study as the qualitative data analysis as well as content analysis through the historical and textual approach. The results of the study reveal the method of law implementation before and during the lifetime of Ibn Al-Muqaffa which could be described as chaotic, with one of the reasons was because, at the time, the court had not possessed the statute that governed the legal activities other than the Islamic jurisprudence (fiqh) which was used by the judges in accepting, examining, and deciding on cases addressed to them. Therefore, every judge took a decision based on their own ijtihad (an Islamic legal term referring to independent reasoning or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question). Ibn Al-Muqaffa advised the Khalifa Abu Jakfar Al-Manshur to compile the correlated legal reasonings in Islamic jurisprudence in which to be implemented and to be applied as the binding legal force in the form of statutory law which was regulated nationally and to be used as guidance by all the judges without no exception. The codification of Islamic law in Indonesia has received a constitutional status based on philosophical, sociological, and juridical reasons. The researchers closely examine three types of Islamic legal laws i.e., Act number 7 of 1989, Act number 3 of 2006, and Act number 50 of 2009 concerning Religious Courts, Act number 41 of 2004 concerning Waqf (Endowment), and Act number 21 of 2008 concerning Sharia (Islamic) Banking. Taqnīn (the codification of Islamic law) must be adjusted to demands of the present time in which it is implemented and in accordance with the specific fields of law, for example, taqnīn for Civil Law, Criminal Law, Family Law, Judicial Law, State Administrative Procedure Law, State Administrative Law, And State Finances.
Mhd. Rasidin, Natardi Natardi,
Samarah: Jurnal Hukum Keluarga dan Hukum Islam, Volume 4, pp 314-336; doi:10.22373/sjhk.v4i2.8083

Abstract:
In the current era of modernization, equal is often interpreted with meaning in terms of social standing, equal in descendants, and balanced in ownership of property. Based on observations made by the author in Sungai Penuh City, Jambi, several community opinions were found that said equal was equal in social status, descent, and wealth. This is often discussed when someone is about to get married, which is a consideration given by his family, especially his parents are to see prospective son-in-law based on social status, whose offspring, and how many prospective daughters-in-law have property. This study aims to examine in depth the case of an unequal marriage and its impact on household harmony that occurred in Sungai Penuh City, Jambi. The writing of this article uses a qualitative research method using field data in Sungai Penuh City. Data collection methods used are observation, interviews, and documentation. The technique that the author used in this research is to use qualitative analysis consisting of domain analysis, taxonomic analysis, and componential analysis. The results of the study show that there are two views of the Sungai Penuh City community on equal issues in marriage, namely people who are concerned with social status (descent and wealth) and idealistic community views with Islamic teachings.
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