QURU’: Journal of Family Law and Culture最新文献

{"title":"Analysis of Positive Law on the Origin of Children from Fasid Marriage: Case Study of Stipulation No. 040/Pdt.P/2017/Pa.Sal in Salatiga Religious Court","authors":"Tegus Basuki","doi":"10.59698/quru.v2i3.224","DOIUrl":"https://doi.org/10.59698/quru.v2i3.224","url":null,"abstract":"Every child has the right to know his or her parents, to be raised, and to be cared for by his or her own parents. The provision regarding the child's right to know who his or her parents are, in the sense of origin (including the mother of the milk), is intended to avoid the disconnection of genealogy and blood relations between the child and his or her biological parents, while the right to be raised and cared for by his or her parents is intended so that the child can obey and respect his or her parents. This statement is in accordance with Article 7 Paragraph 1 of Law of the Republic of Indonesia Number 23 of 2002 concerning Child Protection. This research focuses on the position of children born from a fasid marriage, do they still have the right to know their parents and are considered legitimate children? This research is the result of Library Research and Field Research which is Comparative Descriptive. The approach that researchers use is the Normative Juridical approach. This study aims to answer the problem of whether children born from a broken marriage or called fasid can be considered a legitimate child, or only considered to be a biological child and how the consideration of the panel of judges examining case Number: 040/Pdt.P/2017/PA.Sal in deciding the case. The result of this study is that the author sees that the consideration of the judges in deciding refers to the decision of the Constitutional Court Number 46/PUU-VIII/2010 dated 27 February 2010, Article 43 Paragraph 1 of Law Number 1 of 1974 which states, \"Children born outside marriage only have a civil relationship with their mother and their mother's family\", does not have binding legal force as long as it is interpreted to eliminate civil relationships with men who can be proven based on science and technology and / or other evidence according to the law turns out to have a blood relationship as the father.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"55 41","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141928946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Itsbat Marriage of Sirri Polygamy in Progressive Law Perspective, Case Study of Decision Number 5065/Pdt.G/2019/PA.Clp","authors":"Ummu Salamah Nur Rohmawati","doi":"10.59698/quru.v2i3.233","DOIUrl":"https://doi.org/10.59698/quru.v2i3.233","url":null,"abstract":"A case concerning an application for itsbat marriage at the Cilacap Religious Court filed by a husband and his second wife. Their marriage was conducted siri without the knowledge of the first wife. This application was filed to obtain legalisation of their siri marriage so that it could be officially recorded, which has implications for the legality of children born from the marriage and other civil rights. The purpose of this research is to find out the considerations and factors behind a Judge granting a marriage isbat application. then the second objective is to analyse the results of Decision Number 5065/Pdt.G/2019/PA.Clp in terms of progressive law. This type of research is library research using a normative juridical approach using progressive legal theory. The conclusion in Itsbat Marriage Case in Decision Number 5065/Pdt.G/2019/PA.Clp is that the judge considers aspects of humanity, social justice, and benefits for all parties involved. From the aspect of substantive justice, the decision reflects an approach that takes into account the best interests of the child, harmony in the family, and the protection of women's rights. In the context of the judge's background, the granting of this decision may have been influenced by a deep understanding of the social and cultural values of the local community, as well as a broad understanding of religious norms relating to marriage. The judge may also have considered the urgency of protecting children's rights and the need to resolve family conflicts fairly and peacefully. As such, the granting of this decision demonstrates the judge's commitment to achieving substantive justice in accordance with the social, cultural and religious values of the community, while ensuring the protection of the rights of the individuals involved in the case.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"51 20","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141929709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparison of Customary Law and Islamic Law on the Tradition of Donation in Walimatul 'Urs: in Padukuhan Nepi, Kranggan Village, Galur Sub-district, Kulon Progo Regency","authors":"Rizka Mubarokati","doi":"10.59698/quru.v2i2.193","DOIUrl":"https://doi.org/10.59698/quru.v2i2.193","url":null,"abstract":"Marriage is a noble sunnah that has been carried out by the Prophets and Messengers and the early and late generations who followed their guidance. Walimah itself means a celebration, a banquet specifically for marriage and is not used for events outside of marriage. Walimah according to the custom in Padukuhan Nepi is very important so that to hold a walimah the community has its own way to create the event such as collecting donations with the tonjokan tradition, namely giving in the form of food or groceries given before the walimah takes place. The subject matter discussed in this thesis is how the practice of how customary law and Islamic law views the practice of giving donations walimatul 'urs? and how does the community respond to the practice of giving donations at walimatul 'urs itself? This research is a field research. Data collection techniques include observation and literature study conducted by documenting documents and literature related to the research material. This research is descriptive comparative with normative and sociological approaches. Then the analysis method used is comparative analysis to compare the two concepts and find the meeting point of the two concepts. The results of this study indicate that in understanding the practice of donations in walimatul 'urs, Islamic law provides more benefits and convenience compared to customary law. In Islamic law, giving a donation is not an obligation but a voluntary gift that is believed to be rewarded by Allah SWT, while in customary law, especially the custom in Nepi Padukuhan, giving a donation at walimatul 'urs is an obligation because if it is not implemented, it will get its own sanctions from the local community.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"6 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141101193","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Analysis of Liability and Legal Protection of Land Deed Officials (PPAT) Review of Court Decision No. 43/Pdt.G/2017/PN. Slt","authors":"Fajar Fitrio Dwi Nugroho","doi":"10.59698/quru.v2i2.189","DOIUrl":"https://doi.org/10.59698/quru.v2i2.189","url":null,"abstract":"This research aims to explore the legal protections and responsibilities assumed by Land Deed Officials (PPATs), particularly in the context of Court Decision No. 43/Pdt.G/2017/PN. Slt. Using a case study approach, we identify factors that affect the legal responsibilities of PPATs under the judgment. While evaluating whether the existing legal system has provided adequate protection to them. This research uses a juridical sociological approach method with a descriptive analytical nature, as well as primary data collection techniques through interviews and secondary data through an inventory of books, documents, and articles. The results of the analysis show that Court Decision No. 43/Pdt.G/2017/PN. Slt provides an important insight into the responsibility of PPAT in making land deeds. The implications of these findings are discussed in the context of improving a more effective legal system to ensure adequate protection for PPATs and the public interest in property transactions. The results show that PPATs must be responsible for the validity of the deeds they make in accordance with the rules and principles, and they are responsible for attending the trial. However, based on the precautionary principle, PPATs need to increase caution in making land payment settlement notes. In relation to the legal protection of PPATs, they are entitled to both mental and physical protection from interference and threats from any party.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"2 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141100392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wife's Right to Property After Divorce: An Examination of Islamic Law and Legislation in Religious Court Decisions in Yogyakarta City","authors":"Najichah","doi":"10.59698/quru.v2i2.190","DOIUrl":"https://doi.org/10.59698/quru.v2i2.190","url":null,"abstract":"Indonesia as a sovereign state pays great attention to the rights of its citizens, especially in the context of marriage between men and women, through Islamic family law. Although there are still many divorce cases, the Religious Court as a judicial institution that handles family matters for Islamic citizens, plays an important role in positioning women fairly. However, the importance of wise, intelligent, honest and highly ethical judges cannot be ignored. Judges must be able to understand and apply the law with justice to all litigants, especially in divorce cases where women's rights are often neglected. Research into court decisions is important to see the extent to which judges consider women's interests in their decisions, especially in the context of post-divorce rights that have been formulated in Indonesian Islamic family law. The focus of this research is the wife's rights to post-divorce property as regulated in the legislation, as well as the extent to which these legal products are in accordance with the principles of gender justice. This research uses a qualitative approach with a field study at the Yogyakarta Religious Court. Data were collected and analyzed descriptively analytically, describing events related to court decisions. The gender approach was used to analyze the written law as well as what was decided by the judge in the court process. The results show that the rights obtained by women after divorce in Indonesian Islamic family law, such as the right to mut'ah, the right to maintenance, the right to refuse reconciliation, the right to hadlanah, and the right to joint property, are not discriminated against based on gender. There are no signs of marginalization, subordination, double workload, negative labeling, or violence against woman in Indonesian Islamic family law.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"132 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141002133","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hindu Jurisprudence as The Basis and Source of Nepalese Family Laws: An Investigation","authors":"Rajeev Kumar Singh, Jivesh Jha","doi":"10.59698/quru.v2i2.198","DOIUrl":"https://doi.org/10.59698/quru.v2i2.198","url":null,"abstract":"Hindu jurisprudence has played an important role in the formation of the basis and source of family law in Nepal. This article conducts an in-depth investigation of how Hindu legal principles have influenced the regulation of family law in Nepal. Through careful analysis, it outlines the historical development of Hindu jurisprudence and the way its influence manifests in Nepal's family law provisions, particularly under the National Civil Code 2017. It explores the historical foundations of Hindu law and identifies its practical consequences in the Nepalese context, including possible incongruities between Hindu law and its regulations. In doing so, it provides a deep insight into the complexity of the interaction between Hindu legal traditions and the structure of family law in Nepal. This article discusses in detail the historical development of the recognition of Hindu jurisprudence under Nepal's family law. It illustrates how key laws, such as legal arrangements for marriage, adoption, maintenance, or division, are influenced by Hindu scriptures. The article explains the provisions of the family law (enacted under the National Civil Code, 2017) in light of Hindu laws and practices prevalent in India. It also presents inconsistencies between Hindu laws and embedded regulations. This research approach integrates as legal research with a socio-legal approach, and a thorough literature review to uncover the impact of Hindu jurisprudence on Nepali family law, particularly under the National Civil Code 2017. Through these methods, this article strengthens the understanding of the complex relationship between Hindu legal tradition and family law regulation in Nepal. The conclusion of this study highlights the importance of understanding the practical implications of the application of Hindu law in the context of Nepalese family law, as well as emphasizing the need for consistency and harmonization between Hindu law and applicable regulations to achieve justice in Nepal's evolving family law system.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"31 47","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140657606","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Harmony of Law and Religion: A Maqāṣid Ash-Sharī'ah Analysis of Marriage Registration According to the Fiqh and Law No. 1/1974","authors":"Nomor, Kata Kunci, Perkawinan Sirri, Maqasid Syari’ah, Pencatatan Perkawinan","doi":"10.59698/quru.v2i1.180","DOIUrl":"https://doi.org/10.59698/quru.v2i1.180","url":null,"abstract":"In an effort to regulate marriage and reduce the practice of underhand marriage (sirri) in Indonesia, the government has imposed two requirements: material and administrative requirements. Material requirements include provisions related to the pillars of marriage, both those stipulated in fiqh and the law. Meanwhile, the administrative requirements relate to marriage registration, which is regulated in Article 2 paragraph (2) of Law No. 1/1974 on Marriage. The procedure for this recording is explained in Government Regulation Number 9 of 1975. The addition of marriage registration as a condition of marriage has caused controversy among Indonesian legal experts. This controversy is caused by the interpretation of Article 2 paragraphs (1) and (2) of the Marriage Law, as well as differences in the concept of walīmah and Surah Al-Baqarah (2): 282, as well as the necessity of recording in the field of muamalah. This research is a literature research that uses literature study as the main source of data. This data collection method includes primary, secondary, and tertiary data, with a descriptive-analytical and comparative approach. The analysis involves the concept of marriage registration in the Book of Jurisprudence and Law No.1/1974 as well as the urgency for the perpetrators of underhand marriage using maqāṣid ash-sharī'ah analysis. The results show that marriage registration in the Book of Jurisprudence and Law No.1/1974, by applying maqāṣid ash-sharī'ah analysis, shows that the command to register marriage is implicit in the Book of Jurisprudence and explicit in the UUP. Marriage registration, especially for perpetrators of irregular marriages, is in accordance with the objectives of syarak. A marriage certificate can protect religion, soul, mind, offspring, and property before the law, ensuring the benefit of the household (harmonious and lasting family) is achieved.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"80 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140283715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dispute Between Waqf Land Vs. Inherited Land (Analysis of the Judge's Presumption as Evidence in Case No. 174/Pdt.G/ 2017/MS.Bna)","authors":"Muhammad Husnul, Siti Jum’ah","doi":"10.59698/quru.v2i1.183","DOIUrl":"https://doi.org/10.59698/quru.v2i1.183","url":null,"abstract":"This research discusses the invalidity of the Deed of Replacement of Waqf Pledge Deed on land belonging to the heir who rejected APIAW whose final implication at the appeal stage was that the deed was null and void because contrary to the evidence presented by the plaintiff and the judge's considerations in the form of the judge's guess. The issue of concern is whether the judge's opinion as one of the judge's considerations at the cassation stage can be used as evidence in this case. The research method used is qualitative with a normative juridical approach. The results of the research show that judges can use their assumptions as evidence in their considerations when deciding cases with the assumption that the evidence presented by the plaintiff and defendant has not been able to convince the judge. However, in the end, based on the judge's estimates, it could be concluded that APAIW and the Certificate of Ownership (SHM) had no legal force (not inkracht).","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":" 22","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140391825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gender and Human Rights Challenges: An Analysis of the Iranian Government's Political Influence on Family Law","authors":"Sulung Najmawati Zakiyya, M. Address.Jl.H.A., Harapan Rifaddin, Kec Baru, Loa Janan, Ilir, M. Alamat.Jl.H.A.","doi":"10.59698/quru.v2i1.173","DOIUrl":"https://doi.org/10.59698/quru.v2i1.173","url":null,"abstract":"From the early 20th century to the present day, Iran has undergone various political changes that have affected the regulation of family law in the country. From the codification of civil law in 1928-1935 to the Islamic Revolution of 1979, various political regimes have influenced the interpretation and implementation of family law, which in turn affected the status and rights of women and society as a whole. This article attempts to analyze the evolution of family law in Iran, focusing on the impact of politics on gender equality and human rights. It also discusses the challenges and controversies that have arisen in relation to the reinterpretation of Islamic family law following the Islamic Revolution. Although some reforms aimed to improve women's protection, in many cases, new interpretations of family law have reinforced patriarchal norms and restricted women's freedom in various aspects of life. Through a literature review and policy analysis, this article presents significant changes in family law regulations, including restrictions on polygamy, divorce proceedings, and inheritance rights, and how they affect women's rights in Iran. The results show that political influences on family law in Iran have had a significant impact in the context of gender equality and human rights. From the codification of civil law to new interpretations after the Islamic Revolution, various political regimes have shaped legal frameworks that affect the status and rights of women and society as a whole. While some reforms have aimed to improve women's protection, in many cases, reinterpretations of Islamic family law have reinforced patriarchal norms and restricted women's freedoms. Therefore, an in-depth understanding of the relationship between politics and family law is essential to strive for more inclusive and progressive changes in order to achieve gender equality and human rights in Iran.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"216 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140448391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Patterns of Inheritance Distribution in Tlogoharjo Village, Giritontro Subdistrict in the Review of Islamic Law","authors":"Erkham Maskuri","doi":"10.59698/quru.v2i1.102","DOIUrl":"https://doi.org/10.59698/quru.v2i1.102","url":null,"abstract":"The pattern of inheritance distribution in rural communities is a complex phenomenon, especially when viewed from the perspective of Islamic law. With the diversity of ethnicities, races, languages, religions, and traditions in Indonesia, differences arise regarding the pattern of inheritance distribution in the community. The fundamental thing about the inheritance system is the distribution of inheritance that is in line with the current legal regulations. This research aims to analyze the pattern of inheritance distribution in the community of Tlogoharjo Village, Giritontro Subdistrict, with a focus on related aspects of Islamic law. This research was conducted using field research with a qualitative method with a descriptive approach which is one of the qualitative research methodologies and data collection techniques by means of observation and interviews. The results of this study are that the pattern of distribution of inheritance property both before and after the heir dies is allowed in Islamic Law as long as there is no element of harm, this is because Islamic Law accepts culture and custom as legal norms that must be obeyed if there is no deviation in it and Islamic law is flexible which can be developed according to the needs of people living in the modern era today.  Furthermore, the pattern of inheritance distribution in Tlogoharjo Village is still strongly influenced by customary values and local traditions, although Islam is formally the legal basis. However, there is a tendency for adjustments to the principles of Islamic law in the practice of inheritance distribution. For example, the inheritance rights stipulated in the Qur'an and Sunnah tend to be respected, although sometimes with interpretations adapted to the social and cultural context of the village community. This research also highlights some differences between the practice of inheritance distribution in village communities and the ideal principles of Islamic law. Factors such as lack of understanding of religious teachings, hereditary traditions and economic factors play an important role in shaping inheritance distribution patterns.","PeriodicalId":517990,"journal":{"name":"QURU’: Journal of Family Law and Culture","volume":"62 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140524969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}