Dissenting Opinion Hakim Pengadilan Agama Tanjung Karang Pada Perkara Hak Asuh Anak Bagi Ibu Yang Murtad

This paper considers the history of Islamic family law and its current applications in Turkey. As the heir of the last Muslim empire, the Ottoman Empire, the Republic of Turkey chose an abrupt revolution in its legal system; in 1926, it cut all ties to Islamic law, which was the main law of the land during the Ottoman Empire. Secularization of the law was not uncommon among modern nation states including those, which had Muslim majority populations. However, most of these Muslim majority states allowed Islamic law to govern the private law area, especially family laws. By contrast, the young Republic of Turkey did not allow this to happen and adopted the Swiss civil code including family law with limited revisions. Despite this rushed revolution, practices emanating from Islamic family legal norms did not cease among the people and continued until now. This created a dichotomy in the lives of people between applying Islamic family law and abiding by the secular civil code, which has caused several multidimensional legal problems in the areas of marriage and divorce, as well as their legal consequences in the areas of financial support and child custody. For the first time in republican history, in 2017, the government authorized muftīs to solemnize marriages. This is seen as the only direct authority given to muftīs in a legal matter, which indirectly opens a door for applying Islamic family law in modern legal life in Turkey. In addition, family mediation will soon have some presence in the legal system. There is no direct reference, however, to Islamic family law in government official documents congruent with these recent developments. There also is significant potential for incorporating the principles of family mediation and arbitration (taḥkīm) based on Islamic legal principles. This paper first gives a brief history of Islamic family law in Turkey as well as its effect on the civil codes and applications and then evaluates these recent changes. These are preceded by a brief note on the constitutional and legal frameworks currently in force in Turkey.

The concept of child custody post-divorce has been a critical issue in Islamic family law, particularly in light of contemporary debates surrounding children’s rights and welfare. In recent decades, there has been a growing emphasis on the Best Interest of the Child (BIC) standard, which has shaped custody decisions in Western legal systems. This article explores the integration of the BIC principle within Islamic family law, specifically addressing how it can be reconstructed to align with modern child welfare needs. Through a comprehensive literature review, the paper examines Islamic legal sources, including the Qur’an, Hadith, and classical fiqh, to evaluate the traditional understanding of child custody in divorce cases. It further investigates the compatibility of Islamic principles with international human rights frameworks that advocate for the child's best interest. The article highlights the challenges and opportunities in adapting Islamic family law to contemporary child custody norms, considering cultural, legal, and societal factors. It also compares the Islamic approach with Western legal perspectives on child welfare, identifying areas for potential reform. The findings suggest that while Islamic law provides a strong foundation for protecting children's rights, it requires contextual adaptation to ensure the child’s best interests are consistently prioritized. This research calls for a balanced and progressive approach to reforming child custody practices within Islamic family law. Ultimately, it aims to contribute to a more child-centered framework in Islamic legal systems, offering insights for policymakers and legal practitioners.

Shariat contains rules appropriate for facing challenges at all times. It encompasses all aspects of human life including family laws. Family law as one of the important components in fiqh is based on evidence that is of juz’i and tafsili nature. This makes Islamic family law something dynamic. This article aims to view the position of Islamic family law in fiqh. It also intends to analyze the dynamicity of Islamic family law in facing current and future challenges, especially in Southeast Asia. Analysis was done through the content analysis method as descriptive and comparative. The findings of the analysis explained that Islamic family law is revealed in various forms of law bands appropriate to the current needs of the Islamic world. However, it is still in its basic framework which is to build a family system and consequently human social system based on Islamic law. Therefore, this dynamicity makes it remain relevant in facing current challenges. This study aims to analyze the dynamics of Islamic family law in facing current and future challenges. The analysis was made using descriptive and comparative content analysis methods. The results of the analysis explain that Islamic family law has been implemented in various forms and regulatory channels that are by the problems of the Islamic world. However, the rule is still within its basic framework, which is to compile the family system and so on the human social system based on Islamic law. Rather, it is this dynamic that makes it eternal and relevant to be ahead in facing today's challenges. The article also concludes that the Islamic family law that the state has fixed is dynamic with social and customary realities such as marriage, divorce, and women's and children's rights, especially in Southeast Asia.

The problem related to the evolution of Islamic family law in multicultural societies in cases of adoption lies in the tension between Islamic principles that regulate kafalah (protection of children without changing the status of descent) and international law that accepts full adoption, including changes in the legal status of children. This research uses a library research approach. The data sources used in this study consist of various types of relevant literature, namely: Books, scientific journal articles and research reports. The results of the research show that: 1). The form of evolution of Islamic family law related to adoption in a multicultural society is that Islamic family law has undergone changes to adapt to a multicultural society. Initially, Islam did not recognize full adoption, but rather the concept of kafalah, which only provides protection without changing the status of the child's descendants, 2). The challenge in implementing adoption rules in multicultural societies is the difference in understanding between Islamic law which does not change the child's status of descent and secular law which allows full adoption. 3). The interaction between Islamic family law and international law in adoption cases is that the interaction of these concepts becomes very urgent, especially in relation to international adoption. Although Islamic law does not allow full adoption which changes the legal status of the child, Muslim countries must balance the application of Islamic law with obligations to international treaties, such as the Hague Convention. 4). The impact of globalization on the acceptance of Islamic family law in adoption cases at the international level is that globalization accelerates the acceptance of Islamic family law in international adoption cases, despite concerns about social changes affecting religious values.

This study examines the sociological implications of marriage and divorce in Islamic law in modern Muslim societies. It aims to explore how Islamic legal principles related to marriage and divorce are interpreted and applied in contemporary contexts and their impact on family dynamics, gender roles, and societal norms. The research employs a qualitative approach, with the data collected through interviews, focus groups, and ethnographic observation analyzed using thematic coding and narrative analysis. This approach allowed for identifying recurring themes and patterns and exploring participants' perceptions, attitudes, and personal stories. A combination of a literature review with a comprehensive review of existing scholarly works, legal texts, and sociological studies on Islamic marriage and divorce laws was conducted. This review helped to identify key themes, gaps in research, and the evolving nature of Islamic family law across different cultural and regional contexts. Sources include classical and contemporary Islamic jurisprudence (fiqh), academic articles, books, and NGO reports on women's rights and legal reforms in Muslim-majority countries. For the literature review, the study focused on sources published between 2000 and 2020. The following criteria guided the selection of literature to ensure that the materials were relevant, credible, and up-to-date with contemporary debates and issues: Relevance to Topic, Academic and Peer-Reviewed Sources, Publication Date, Geographical Scope, Legal and Sociological Focus. Literature that addresses the intersection of Islamic law, gender dynamics, and the sociological implications of marriage and divorce. Respondents from members of Muslim communities across diverse socio-cultural settings. This analysis is applied to identify variations in the application of Islamic family law in different regions. The findings reveal that local cultural norms and legal systems often influence Islamic principles governing marriage and divorce. While Islamic law emphasizes justice, mutual respect, and the protection of family welfare, its implementation varies significantly, creating diverse sociological outcomes. For example, in some regions, divorce laws have been adapted to address gender equality concerns, while in others, traditional practices continue to dominate, often to the detriment of women's rights. The study concludes that while Islamic family law provides a robust framework for regulating marriage and divorce, its sociological implications are shaped by the interplay between religion, culture, and modern legal reforms. To address the challenges faced by Muslim families, there is a need for a balanced approach that respects religious principles while promoting social justice and gender equality. This highlights the importance of ongoing dialogue and reform to ensure that Islamic family law remains relevant and supportive in modern societal contexts

The elevated divorce rate in Purwokerto has become a focal point for the local government due to its adverse repercussions. This research has identified five primary factors contributing to divorce, encompassing education, economic status, religion, access to healthcare, and environmental factors. This study employs empirical legal methods analyzed in accordance with Islamic family law theory. In-depth interviews were conducted with informants, as well as literature studies and data collection techniques. The results showed two critical findings. First, Islamic family law makes it clear that although divorce is legal, God views it negatively. Divorce is considered a final option when mediation becomes unfeasible. For a divorce to be valid, it must meet various criteria, such as guidelines for property division and child custody. Additionally, the Qur'an and Hadith discuss the five legitimate reasons for divorce. Secondly, the issue of divorce is regulated by normative positive law. However, no legal regulations are specifically available at the local government level to support efforts to reduce divorce rates based on the five leading causes. In particular, the five causes of divorce are also discussed based on relevant normative regulations and support from previous studies. The two sources of family law and Islamic law have different views regarding the legal requirements of divorce and its scope. However, in terms of similarities, both sources of family law and Islamic law support efforts to protect children and empower women victims of divorce. With national legal regulations, the government is responsible for providing effective rules to resolve the causes of high divorce rates legally.

General Background: Polygamy remains a controversial issue in Islamic family law and judicial practice in Indonesia, primarily centered on the requirement of justice as mandated in Surah An-Nisa verse 3. Specific Background: In practice, achieving fairness in polygamy often faces challenges, particularly in judicial decisions granting polygamy permits. Quraish Shihab’s interpretation of justice emphasizes balance and contextual fairness, offering a multidimensional perspective for analyzing such rulings. Knowledge Gap: Previous studies have not deeply examined how judges operationalize Quraish Shihab’s concept of justice in actual polygamy permit decisions. Aims: This study aims to analyze the application of justice principles in the Jember Religious Court’s Decision No. 1775/Pdt.G/2023/PA.Jr using Quraish Shihab’s justice framework. Results: The findings reveal that the judges’ considerations emphasize procedural and formal justice—such as equality before the law and compliance with legal requirements—while substantive justice, including psychological and social balance for wives and children, remains limited. Novelty: This study provides an integrative analysis linking Islamic theological concepts of justice with judicial reasoning in polygamy cases. Implications: The research highlights the need for a holistic judicial approach that not only fulfills legal formalities but also ensures equitable family welfare consistent with maqasid al-shariah principles. Highlights: Examines judicial justice in polygamy permit decisions. Applies Quraish Shihab’s concept of balanced fairness. Reveals dominance of formal over substantive justice. Keywords: Justice, Polygamy, Quraish Shihab, Religious Court, Islamic Law

This study discusses the mainstreaming of gender equality in Islamic family law. As it is known, gender equality and Islamic law have axiological links in realizing family household that practices the universal values such as justice, literature, peace, love, compassion, etc. This research is a qualitative study with a gender perspective linked to Islamic law. The discussion showed that a number of opportunities were found as normatively affirmed in the Qur'an which has the same spirit as the mainstreaming of gender equality in Islamic family law. Likewise, legal rules such as the Compilation of Islamic Law and the development of Islamic studies caused the normative theological understanding to support gender equality. However, it cannot be denied that the understanding of theological texts has begun to erode in the context of the implementation of Islamic family law. For the challenges, there were several aspects that hinder the mainstreaming of gender equality in Islamic family law, namely marginalization of women, community stereotypes against women, subordination of women, double burden on women, and violence against women.

This article analyses the understanding of legal modernization in the sociology of Islamic law in Muslim countries regarding Islamic family law in Indonesia. The theory of legal modernization arises from the long history of Islamic legal theory since the Dutch era related to the enactment of Islamic law, both in terms of the struggle between customary law, Islamic law, and state law. The work for the emergence of legal theories such as Receptie theory becomes a filter for Islamic law in its application to Muslim communities in Indonesia. The results of this study indicate that the modernization of law in the form of KHI applies to the Indonesian Muslim community and requires the nation to be more mature in responding to modernity. However, there is an intersection between modernization and legal secularisation in the Islamic world, such as in Turkey, Egypt, Sudan, and Syria. Legal modernization from fiqh towards positivisation has given birth to formulations in Islamic family law in the form of sociological dynamics in contemporary Indonesian Islamic society.

As an Islamic country, Islamic family law reform in Malaysia is experiencing various dynamics. This article aims to examine the genealogy, reform, and products of Islamic family law in the field of marriage (munakahat) in Malaysia. The authors find that Malaysia’s Islamic law reform is divided into three periods using literature research. In the Malay period, Islamic values were generally embedded in the law in Malaysia. During the British colonial period, English law had dominated and was used as common law, which was absorbed in various legislation and jurisprudence in Malaysia. It was only after independence that efforts to reform and codify Islamic family law began, marked by the stipulation of the jurisdiction of the federal territorial government and the territorial government into thirteen states. The codification of family law began with establishing a committee to amend Islamic law and be guided by other Islamic countries. The authors find four areas of marriage that have been reformed in Malaysia, namely the age limit for marriage, marriage registration, polygamy, and divorce. Among the four areas of marriage law, the authors find slight differences in regulations on the technical and material grounds in each state in Malaysia.

Ideally, Islamic family law regulates polygamy with clear provisions to ensure justice and the welfare of all parties involved. In reality, within the culture of Agen Thrifting families in Teluk Nibung, Tanjung Balai, polygamy and nikah sirri (unregistered marriages) are often adopted as strategies to circumvent stringent legal regulations, creating issues related to legal status and family rights. This study aims to examine the practices of polygamy and nikah sirri in the context of Agen Thrifting families, focusing on how these practices interact with Islamic family law provisions. This article is categorized as qualitative field research. The methodology employed is a juridical-empirical approach, combining legal analysis with direct field observations. The research findings indicate that the culture of polygamy among Agen Thrifting families is often accompanied by nikah sirri as an effort to evade strict legal regulations. This results in negative impacts, including family separation and unclear status of children. Such practices undermine the principles of Islamic family law, particularly the assurance of family rights protection and legal recognition in accordance with justice principles.

Because Islamic law is not mentioned directly in the Qur'an and Hadith, interpretation and contextualization through ijtihad are often necessary. To achieve this, Islamic jurisprudence must be integrated with current conditions and societal demands. This must be done in accordance with maqasid al-syariah, namely the aim of overcoming legal problems faced by individuals (mukallaf). Sharia guarantees the welfare of every person and is adapted to their abilities. It is stated in a hadith in the hadith of the Prophet narrated by Bukhari which means: "Religion makes things easy, the religion that Allah loves is the true and easy religion" (HR. Bukhari from Abu Hurairah) shows that Islam emphasizes the importance of ease in fulfilling religious obligations. According to the principle of المشقه تجلب التيسير, which means that difficulty brings ease, Islamic law is flexible to deal with the difficulties people face in worship and transactions. The concept of المشقه تجلب التيسير in the application of Islamic family law is explained in this paper using qualitative descriptive methodology and literature review techniques. Sources for this research include the Al-Qur'an, Hadith, tafsir, fiqh literature, and Qawaidul Fiqiyyah. To see how this principle is applied, this paper conducts a case study on Islamic family law. The aim of Al-Masyaqqah Tajlibut Taysir is to alleviate difficulties in the application of Islamic family law so that people can fulfill their obligations without experiencing due difficulties. This study identified seven categories of hardship (masyaqqah) that require relief (rukhsah), such as travel, illness, compulsion, forgetfulness, ignorance, general hardship, and deprivation. These categories guide legal experts in issuing fatwas and legal decisions to accommodate individual needs while upholding Islamic principles. In conclusion, المشقه تجلب التيسير serves as a basic principle in Islamic jurisprudence, facilitating the harmonization of Sharia with individual circumstances and societal needs, particularly in family law matters such as marriage contracts. Its application underscores the adaptability and compassion inherent in the principles of Islamic law, which promote justice and well-being for all individuals.

Child marriage is considered by the international community to be a violation of human rights, particularly the right to education and sexual and reproductive healthcare. Unfortunately, there are some Muslim countries in the world, including Malaysia, that has legalised this practice. Laws such as the Islamic family laws in all Malaysian states stipulate legal avenues for underage children to get married, provided they obtain permission from the Sharia court. Therefore, in order to end this harmful practice in Malaysian Muslim society, this article will discuss child marriage under Malaysian Islamic family law and propose a legal reform for Islamic family law regarding marriageable age and court procedure. This article examined international law instruments related to child marriage, Malaysian civil and Islamic laws, and reported cases to understand the legal complexities of child marriage in Malaysia. This article found that there is an urgent need for international agencies, Malaysian federal and state governments, religious authorities, and civil society movements to commence initiatives that address this issue to curb child marriage amongst Muslims in Malaysia, particularly through reforming Islamic family law in all states.

The aim of this research is to explore the foundations and principles of Islamic family law. The method used by the researcher is a qualitative research method with a library study type of research. This type of literature study research is used to explore an in-depth understanding of a topic or phenomenon by analyzing relevant literature and sources, which in this research is related to exploring the foundations and principles of Islamic family law. As for data, it is obtained through study and analysis of various references such as books, scientific journals, articles and other documents related to the topic being researched and then researchers draw common threads and conclude from the findings and research studies. The results of this research show that the literature study on exploring the foundations and principles of Islamic family law provides a comprehensive overview of the multifaceted nature of this legal framework. Rooted in the Quran and the Sunnah, Islamic family law encompasses principles related to marriage, divorce, child custody, inheritance, and broader ethical considerations. The literature reflects the ongoing efforts of researchers to analyze and interpret Islamic legal sources, shedding light on the adaptability of Islamic family law to different cultural and social contexts. As scholars continue to explore and debate various aspects of Islamic family law, the literature serves as a valuable resource for understanding the principles that govern family life within the Muslim community and their implications for individuals, families, and societies at large.

This study examines the issue of divorce arising from a spouse’s mental illness through the lens of Maqasid al-Shariah within the framework of Islamic Family Law in Malaysia. Recognising that mental health disorders can seriously disrupt marital harmony and family welfare, this research explores the extent to which Islamic law accommodates the rights and well-being of both spouses in such circumstances. The study uses a qualitative methodology to analyse primary sources, including the Qur’an, Hadith, classical fiqh literature, and relevant Malaysian statutes. The findings demonstrate that Islamic law permits divorce on the grounds of harm (darar), which encompasses severe mental illness, provided that established legal and ethical conditions are satisfied. By situating this ruling within Shariah’s higher objectives, notably the preservation of life, dignity, and family stability, this paper highlights how Maqasid al-Shariah ensures a balanced and compassionate approach. Furthermore, the study discusses related rights such as maintenance (nafaqah), child custody, and the ‘iddah (waiting period), underscoring Islam’s commitment to justice and social welfare. The insights contribute to greater awareness of how Islamic Family Law can address contemporary mental health challenges while upholding its foundational values.