SAMAWA : Jurnal Hukum Keluarga Islam

TRANSFORMASI KONSEP HAK IJBAR ORANG TUA: DARI FIQIH KLASIK KE REALITAS HUKUM MODERN

Amal Zainun Naim, Hustina — Wed, 21 Jan 2026 00:00:00 +0000

This article examines the transformation of the concept of ijbar (parental authority in marriage) in Islamic family law, from its classical fiqh construction to contemporary legal realities, amid growing concern over child marriage and marriages conducted without genuine consent in religious court proceedings. In classical fiqh, ijbar is understood as the guardian’s—particularly the father’s—authority to arrange a child’s marriage in the name of perceived welfare, even without explicit consent. In modern legal contexts, however, this concept raises serious concerns when the consent of female marriage candidates is still interpreted through silence. Employing a normative-juridical approach, this study compares classical fiqh doctrines, positive law, and a maqasid al-shariah perspective. The findings reveal a persistent gap between legal reforms that emphasize consent and judicial practices that continue to rely on passive consent. Such practices risk perpetuating unequal power relations and enabling subtle forms of coercion. This article argues for clearer normative guidance to ensure that marital consent is obtained freely and consciously. By prioritizing human dignity and individual autonomy, this study contributes to strengthening Islamic family law reform in line with principles of justice and maqasid al-shariah.

Keywords: Ijbar Right, Family Fiqh, Maqasid al-Shariah

ANALISIS KONSEP HIRFAH SEBAGAI INDIKATOR KAFAAH DALAM PEMBENTUKAN KELUARGA IDEAL PERSPEKTIF HUKUM KELUARGA ISLAM

M. Hidayat, Azhar, Kamaliah. R — Wed, 21 Jan 2026 00:00:00 +0000

The high divorce rate in Indonesia, particularly due to emotional conflicts and economic pressures, highlights the urgency of examining key factors of family resilience. One of these is hirfah (profession), which plays a strategic role within the concept of kafaah in shaping the ideal family. This study aims to analyze the role of hirfah as an indicator of kafaah in modern social contexts and its relevance for building families characterized by sakinah, mawaddah, and rahmah according to Islamic Family Law. The method employed is library research with descriptive-analytical analysis of classical and contemporary fiqh literature, complemented by relevant academic studies. The findings reveal that a lawful, proper, and stable profession is not only crucial for economic stability but also serves as a symbol of responsibility, social dignity, and psychological readiness for marriage. Thus, hirfah as part of kafaah plays a significant role in fostering a resilient and harmonious family and remains relevant as a reference in premarital counseling and contemporary Islamic family policies.

POLIGAMI: ANTARA KEBOLEHAN SYARIAT DAN TANTANGAN ETIS ANALISIS MA’ANIL AL HADITS DAN SOSIOLOGI HUKUM

Saifullah, Sutriyono — Wed, 21 Jan 2026 00:00:00 +0000

This article reexamines the meaning and ethical position of polygamy through two approaches: Ma'anil al Hadith and legal sociology. The Ma'anil al Hadith approach emphasizes a meaningful, contextual reading of hadiths that is oriented toward maqāṣid al-syarī'ah, rather than merely textual. Meanwhile, legal sociology analyzes the social function of a norm in modern society. This study finds that polygamy in Islam is not a command or normative preference, but rather a conditional permissibility that arises from a specific socio-historical context. In contemporary social reality, moral conditions, especially inner, psychological, and structural justice, are almost impossible to fulfill. Therefore, polygamy is more accurately understood as a situational rukhṣah, not an ideal family model. This analysis shows that both hadith and modern legal sociology theory lean toward ethical recommendations of monogamy as a form of protection, justice, and family stability.

Keywords: Polygamy, Ma’Ani Al-Ḥadis, Sociology of Law, Maqāṣid Al-Syari’Ah, Justice, Modern Family, Prophetic Ethics.

BATAS USIA PERKAWINAN DI NEGARA-NEGARA MUSLIM KONTEMPORER DALAM PERSPEKTIF MAQĀṢID AL-SYARĪ‘AH: STUDI KOMPARATIF DELAPAN NEGARA

Nurhilal Nazri arif, Akbarizan, Nur Cahaya — Wed, 21 Jan 2026 00:00:00 +0000

Underage marriage remains a prevalent phenomenon in many Muslim-majority countries, despite the ratification of international conventions on child protection. This practice is often legitimized by religious and cultural factors, gender inequality, and weak law enforcement. This article aims to conduct a comparative study of legal regulations concerning the minimum age of marriage in eight contemporary Muslim countries: Indonesia, Egypt, Saudi Arabia, Morocco, Malaysia, Algeria, Turkey, and Iran. The study employs a normative-qualitative approach through the analysis of legal documents and public policies in each country. The findings reveal significant differences in legal approaches, ranging from conservative frameworks to more progressive reforms in family law. The article highlights the importance of harmonizing national legal systems with Islamic principles of child protection in order to reduce the practice of child marriage and to safeguard the fundamental rights of girls in the contemporary Muslim world.

Keywords: child marriage, family law, minimum marriage age, Muslim countries, comparative study.

CHILDFREE DALAM PERSPEKTIF HUKUM KELUARGA ISLAM DAN HUKUM YURIDIS: TANTANGAN TERHADAP PEMAKNAAN HIFZ AL-NASL DI INDONESIA

Azila Ramadhani, Nabila Qatrunada, Siti Syahrina, Muhamad Parhan — Wed, 21 Jan 2026 00:00:00 +0000

The childfree phenomenon has become an important issue in the study of Islamic family law in Indonesia because it creates tension between the interpretation of maqashid al-shariah, particularly the principle of hifz al-nasl, and the individual's freedom to choose not to have children. This study aims to analyze the position of Islamic family law on childfree, identify the legal and social challenges faced by childfree families, and formulate a modern Islamic legal approach that is responsive to this phenomenon. The research method used is descriptive qualitative with a normative approach through literature study and content analysis. The results show that modern Islamic law provides space for childfree individuals on the condition that there are sharia reasons such as health conditions, family interests, and socio-economic factors that affect quality of life. In addition, laws and human rights support reproductive freedom as long as it is in accordance with religious norms and does not harm others. In conclusion, contemporary Islamic family law can adapt to modern social realities without neglecting religious principles and social responsibilities. This adaptation opens up space for respect for individual freedom in choosing a lifestyle, including childfree, as long as the decision is made with careful consideration and takes into account the broader interests of the community.

Keywords: Childfree, Islamic family law, reproductive rights, maqashid al-shariah, social stigma

KEADILAN TERBELAH: KONTESTASI MAZHAB DALAM IMPLEMENTASI HUKUM KELUARGA KUWAIT

Ranta Adsa, Halum Musthfa — Wed, 21 Jan 2026 00:00:00 +0000

This article critically examines the implementation of Islamic family law in the Kuwaiti judicial system, highlighting the impact of sectarian contestation on substantive justice in judicial practice. Kuwait adheres to a dualistic family law system that separates jurisdiction between the Sunni and Shia communities, each with its own courts and different fiqh references. Codification through the Qanun al-Ahwal al-Syakhsiyyah of 1984 became the legal basis that accommodates various schools of thought, particularly Maliki, Hanbali, Shafi'i, and Ja'fari. This study uses a normative juridical approach with jurisprudential analysis of family court decisions related to divorce and ḥaḍānah (child custody) cases. Analysis of judicial practice shows that differences in doctrinal interpretation and legal procedures between schools of thought have a direct impact on variations in court decisions and unequal treatment of litigants, especially women. In divorce cases, women face different burdens of proof and legal consequences depending on their madhhab affiliation, while in child custody cases, differences in the age limit for ḥaḍānah between the Sunni and Shia madhhabs result in inconsistent rulings in cases with comparable factual circumstances. These findings indicate that Kuwait's family law system normatively accommodates fiqh plurality, but in practice gives rise to the phenomenon of “divided justice,” where legal outcomes are determined more by madhhab affiliation than by universal principles of substantive justice. Amidst the process of family law reform and Kuwait's commitment to international instruments such as CEDAW, this study recommends strengthening standards for the protection of rights and equality across schools of thought in order to realize a more just and harmonious system of family law pluralism.

Keywords: Islamic Family Law, Kuwait, Divorce, Child Custody

MASLAHAH MURSALAH DALAM PENETAPAN WALI NIKAH BAGI ANAK LUAR KAWIN DI KUA SIDOMUKTI SALATIGA

Jihan Al Layyinah, Asfa Widiyanto, Sukron Ma'mun — Wed, 21 Jan 2026 00:00:00 +0000

This study examines the application of the concept of maslahah mursalah in determining lineage and determining marriage guardians for children born out of wedlock by officials at the Office of Religious Affairs (KUA). This focus is emphasized from the outset to observe how considerations of maslahah are used in Islamic legal practice when cases arise that are not explicitly explained in the texts. The study uses a qualitative, descriptive-empirical approach through observation, interviews, and documentation, and is strengthened by a review of Islamic legal regulations and literature, Law Number 1 of 1974 concerning Marriage, and the Compilation of Islamic Law (KHI). The results show that KUA officials prioritize a careful, dialogical, and maslahah-oriented approach in determining lineage status and determining marriage guardians. These considerations are directed at balancing Islamic legal norms with the practical needs of the community, so that decisions are made in line with positive regulations as well as the values of maqāṣid al-syarī‘ah. The use of maslahah mursalah serves as a basis for ensuring that decisions are beneficial and avoid harm, without the need for lengthy theoretical explanations. This finding shows that the concept of maslahah mursalah remains relevant and applicable in contemporary Islamic legal practice, especially in the KUA environment which deals directly with the social dynamics of society.

Keywords: Maslahah Mursalah, KUA, Marriage Guardian, Children Out of Wedlock

PUTUSAN HAKIM TERHADAP PERKARA GHAIB PADA CERAI GUGAT DI PENGADILAN AGAMA METRO

Ulfa Fatimatu Zahra, Sudirman — Wed, 21 Jan 2026 00:00:00 +0000

This study analyzes the judge's consideration in deciding supernatural cases in divorce lawsuits at the Metro Religious Court through Decision Number 230/Pdt.G/2023/PA.Mt. The main problem is how the judge decides the supernatural divorce case when the husband leaves his wife for less than two years, even though Article 116 letter (b) of the KHI requires a minimum of two consecutive years. Using normative legal research methods with a legislative and case approach, this study analyzes court decisions and Islamic legal literature. The results of the study show that judges use a substantive-protective approach by integrating legal-formal and philosophical aspects based on the rules of fiqhiyyah "dar'u al-mafasid muqaddamun 'ala jalb al-mashalih" and the principles of maqashid sharia. Factors that cause the request include the absence of the husband, economic neglect, the habit of drinking liquor, and the failure of peace efforts. The judge granted the lawsuit by imposing talaq satu ba'in shughra even though the duration of the separation had not reached two years, considering that maintaining the marriage caused psychological harm and legal uncertainty for the wife. This study demonstrates that judges act as justice seekers who contextualize legal norms with social realities to protect the abandoned party.

Keywords: Supernatural Cases, Divorce Lawsuits, Judge's Considerations

PENDEKATAN RESTORATIF DALAM PERLINDUNGAN HAK ISTRI DAN ANAK PASCA PERCERAIAN: TINJAUAN HUKUM KELUARGA ISLAM DI INDONESIA

Achmad Suhaili, Iklilhasbiyalla — Wed, 21 Jan 2026 00:00:00 +0000

This study examines the integration of the restorative approach within Islamic family law in Indonesia as an effort to strengthen the protection of the rights of wives and children after divorce. This research employs a qualitative normative method with a descriptive-analytical approach by examining the principles of classical Islamic law, Islamic family law in Indonesia, and the restorative concept as an alternative approach to resolving family conflicts. The findings indicate that restorative values are aligned with the principles of justice, balance, and public welfare (maṣlaḥah) in classical Islamic law and have been partially accommodated in the practice of Islamic family law in Indonesia through the role of the Religious Courts and the Compilation of Islamic Law (KHI), although significant implementation challenges remain. This study implies the importance of strengthening collaboration among judges, Islamic scholars, and family counselors, as well as optimizing mediation based on Sharia values, to achieve divorce resolution processes that are more just, harmonious, and oriented toward the best interests of the child.

Keywords: Restorative Approach, Protection of Wives’ and Children’s Rights, Post-Divorce, Islamic Family Law

MENGGALI MAKNA WALASUJI: IMPLEMENTASI NILAI-NILAI TRADISIONAL DALAM PERKAWINAN

Muh Ahsan, Luthfiah Azizah, Rusdaya Basri, Aris — Wed, 21 Jan 2026 00:00:00 +0000

This study investigates the application of traditional cultural values embedded in the walasuji symbol within the wedding ceremonies of the Bugis ethnic group, particularly in the Parepare City area. Originally referring to a diamond-shaped protective fence, walasuji has evolved in meaning to become a fruit basket presented as part of the ritual. This tradition is replete with symbols that express noble principles such as loyalty, harmony, responsibility, respect for customary norms, and dedication in establishing a family. However, the philosophical essence of walasuji is increasingly overlooked and viewed merely as a routine procedure in wedding events. This research employs a qualitative sociological approach, utilizing techniques of direct observation, in-depth interviews, and documentary data collection. The findings reveal that the implementation of walasuji values not only strengthens the bond between spouses but also plays a crucial role in preserving local wisdom and Bugis cultural identity. Therefore, it is essential to enhance understanding of the walasuji symbol so that future generations can inherit the noble principles contained within it.

Keywords: Walasuji, Traditional Values, Marriage