LEGAL ANALYSIS OF PREGNANT WOMEN’S MARRIAGE IN ARTICLE 2 OF LAW NO. 1 OF 1974 AND ARTICLE 2 OF KHI IN PERSPECTIVE OF MAṢLAḤAH AL-SYÂȚIBI

Abstract

This article discusses the prevalence of cases of pregnancy before marriage and the law of marriage. This paper is a library research with qualitative data. The basis for pregnant marriage in Indonesia is contained in Article 53 of the KHI and Article 2 of Law no. 1 of 1974. Normatively, the two laws actually create a negative stigma, which is seen as legalization of adultery by some people. Therefore, this study was analyzed using a comparative approach to the consensus of Imam Madzhab and the approach of maslahah theory by Imam Al-Syâṭibi. The purpose of this study is to establish a correlation between the arguments and the two laws of pregnant marriage. The Maslahah Al- Syâṭibi theory states that it is God's urgency to regulate the Shari'a to create human goodness in this world as well as the hereafter. In Imam Ash- Syâṭibi's view, the law of marriage for pregnant women due to adultery is permissible and legal. The reasons for the permissibility are (1) considering the benefit of pregnant women as well as hifdz al-nasl (the child they are carrying); (2) stop adultery with Sadd al-dhari'ah and urf (custom) solutions; (3) reduce the shame and psychological embarrassment for pregnant women and their children in the flow of life in society.