Open Access at: http://lamlaj.ulm.ac.id/web/
Wives' Right to decline Reconciliation to Avoid Detriment in the Review of Islamic Legal Compilation
Abdullah Azzam Alfatih1, Ardiansyah2, Fauziah Lubis3
Faculty of Shari'ah and Law, State Islamic University of North Sumatra William Iskandar V street, Medan Estate, Deli Serdang, North Sumatra 20371
Faculty of Shari'ah and Law, State Islamic University of North Sumatra William Iskandar V street, Medan Estate, Deli Serdang, North Sumatra 20371
Faculty of Shari'ah and Law, State Islamic University of North Sumatra William Iskandar V street, Medan Estate, Deli Serdang, North Sumatra 20371
Submitted : 15/08/2023 Reviewed: 24/08/2023 Accepted:05/09/2023 Abstract: This study aims to investigate conflicts within marital relationships, specifically instances of physical violence by husbands against their wives, including beatings and causing bodily harm. The research examines the reconciliation concept based on Articles 164 and 165 of the Compilation of Islamic Law, focusing on wives’ entitlement to reject reconciliation. Furthermore, the study aims to understand the extent to which a wife can decline reconciliation with her husband due to trauma resulting from talak raj’i (revocable divorce). The research employs normative research with a legal approach, analyzing existing literature and secondary data. Primary and secondary sources constitute the study’s data collection. Primary sources encompass opinions by Sheikh Wahbah Zuhayli in “Fiqh Islam Wa Adillatahu” regarding reconciliation, alongside Compilation of Islamic Law Articles 164 and 165. Secondary sources comprise various books, written materials, and journals. Data is gathered through meticulous documentation and citation techniques. Descriptive qualitative analysis, involving cause-and-effect analysis and relevant factor comparison, is utilized for data evaluation.
Research findings indicate a shared perspective that reconciliation requires a genuine intention for marital harmony and peace, with no room for coercion or pressure.Thus, if a wife’s refusal to reconcile with her husband stems from trauma, reconciliation cannot be enforced. The wife’s consent is crucial for nurturing familial harmony.
The Compilation of Islamic Law underscores the significance of both reconciliation and spousal consent, aligning with Articles 164 and 165.This research advances the understanding of conflicts within marital relationships, especially concerning physical violence. The insights gained contribute to a deeper grasp of the involved dynamics Keywords: Compilation of Islamic Law;Wife’s Right to Decline Reconciliation, DOI: 10.32801/lamlaj.v8i2.415
refuse reconciliation with her husband if she perceives that such reconciliation could lead to "darar" (harm) for her.2
Zalim, according to Ibn Manzur in Indriani, is linguistically derived from the word ظلما- يظلم-ظلم which means to put something out of place.3This implies that any decision made to put something out of place will be considered unfair or arbitrary. Considering the current issue, both the husband and wife feel unable to sustain their marriage due to instances of inappropriate treatment, including violence.
Subsequently, the husband decides to reconcile with his wife, reflecting on their shared experiences and the bond they once had. However, the wife declines the invitation, defying her husband's wishes. In a marriage, a peaceful environment between spouses is crucial, devoid of external pressures. This holds significance and aligns with the principle of Maqashid Sharia, particularly Hifz al-Nafs or the preservation of the soul. As the author suggests, if the wife finds herself in a coerced situation, she will likely face psychological disturbance and mental distress, potentially deteriorating the future family life. This can even challenge her adherence to marital responsibilities, thereby threatening Hifz ad- Din or the preservation of Religion.4
2 Ahmad, Nadzhrah & Yusoff, Rahmawati Mohd &
Rokis, Rohaiza Abd & Yusoff, Wan Mazwati Wan &
Ghazali, Norzulaili Mohd & Rahim, “The Application of Reconciliation in Muslim Divorce Cases Caused by the Domestic Violence: An Analysis Between Islamic and Malaysian Law,” International Journal of Academic Research in Business and Social Sciences 7, no. 5 (2021): 263–273.
3 Ibn Manzur, Lisan al-‘Arab Jilid 11, (Beirut: Dar Sadr, t.th): 373, dikutip: Dina Indriani, “Potret Kezaliman Fir’aun Dalam Al- Qur’an,” Skripsi Fakultas Ushuluddin (UIN SUSKARIAU, 2020).
4 Aay Siti Raohatul Hayat, “Impelementasi Pemeliharaan Jiwa (Hifz Al-Nafs) Pada Pengasuhan
INTRODUCTION
Islam encourages marriage with the aim of fostering happiness and peace among spouses and their children. This objective can be realized when both husband and wife consistently uphold their rights and responsibilities as outlined in each marriage contract. The core values of equality and justice should underpin these rights and responsibilities.
The foundation of the relationship between a husband and wife should be rooted in 'Muasyarah Bil Ma'ruf,' which translates to maintaining amicable interactions with kindness and respect. This concept involves building a harmonious relationship between two individuals, adhering to the social norms and conditions of their respective communities, without rigid protocols or conditions that may lead to conflicts.
By adhering to these principles, challenges that arise within families can be effectively resolved. Instances of violence or unjust behavior toward spouses often serve as the catalysts for domestic disputes. Unfortunately, in many of these cases, such actions are perpetuated by the husband without valid justification.1 In line with the research conducted by Ahmad, it is established that the central aim of reconciliation is the restoration of the relationship between a husband and wife. This objective aligns with the reconciliation principle outlined in the legal framework of Malaysia, which is in harmony with the tenets of Islamic law. Nevertheless, in situations where divorce arises due to domestic violence, the wife holds the right to
1 K H Ahmad et al., Membumikan Islam Washatiyah (Jakarta: MAARIF Institute for Culture and Humanity
& Perhimpunan Pengembangan Pesantren dan Masyarakat (P3M), 2022):50.
among these countries in relation to divorce.
The judiciaries in these nations generally lean toward reconciliation and prioritizing peace before contemplating divorce seriously.
Moreover, there are varying prospects for divorce in each country. Nonetheless, the principle of equality before the law, aimed at safeguarding the rights of all parties, holds importance across these jurisdictions.
In specific reconciliation to this principle, countries like Indonesia and, particularly, South Yemen—specifically Yemen with its national constitution—have reinforced the notion that "the state ensures legal equality between men and women across all facets of life, encompassing political, economic, and social spheres6.
In his 2015 thesis titled "Juridical Analysis of Reconciliation during the Grace Period of 'Iddah Talak Raj'i According to Compilation of Islamic Law and Islamic Fiqh," Muhammad Ichsan Parinduri explored the treatment of the concept of reconciliation following divorce in Islamic law. The study delved into the specific context of raj'i talaq (revocable divorce).Parinduri observed that unlike the requirement set forth in the Codification of Islamic Law, reconciliation in raj'i talaq does not necessitate the husband's physical presence at the religious affairs office. Rather, it entails the wife's consent and the presence of a marriage registrar. Should the husband choose to pursue reconciliation, it is imperative to honor the decision of the religious court. The husband is responsible for the ex-wife's livelihood, housing, and clothing during the period of talaq raj'i if the reconciliation occurs during the period of
6 Sadari, “Hak Perempuan Pasca Perceraian: Analisis Perbandingan Hukum Keluarga Di Indonesia Dan Dunia,” Istinbath : Jurnal Hukum 12, no. 2 (2015):3.
The husband has the right to reside with his wife, irrespective of the wishes of his wife or guardian. This is affirmed by Wahbah Zuhayli's authoritative explanation regarding a husband's counsel to his wife during trial proceedings. Furthermore, this right doesn't necessitate the consent of a spouse, parent, or guardian. It solely requires the consent of the parties involved. Reconciliation also functions as an assurance for the wife and bolsters the marital bond. This obviates the need for a guardian or dowry in cases where the wife has already undergone divorce through Raj'i talaq.5 In contrast, Articles 164 and 165 of the Islamic Law Compilation stipulate that during childbirth, permission must be sought from the wife.In the context of 'iddah talaq raj'i, a woman possesses the legal prerogative to decline her ex-husband's request for reconciliation before the registrar of marriage certificates. This occurs in the presence of two witnesses, as articulated in the outcomes of the examination according to Article 164.
One of the topics discussed in Sadari's publication titled "Women's Rights After Divorce: A Comparative Analysis of Family Law in Indonesia and Worldwide" is the legal protections provided to women following divorce. This study involves a comparison of the grounds for divorce as outlined by various Islamic sects and positive legal systems in countries including Indonesia, Malaysia, Tunisia, Iran, Egypt, Yemen, Turkey, and Iraq.
Generally, these countries tend to follow the Shafi'i school of thought in terms of family law principles.Distinct differences exist
Anak Berbasis Keluarga,” FOKUS Jurnal Kajian Keislaman dan Kemasyarakatan 5, no. 2 (2020): 154.
5 Wahbah Al-Zuhaili, Fikih Islam Wa Adillatuhu, Jilid 9. (Jakarta: Gema Insani, 2011): 409.
talaq 'iddah raj'i 7 unless the ex-wife is subject to ba'in divorce or nushuz.
Arini Rufaida, in a journal entitled "The Right of Wives to Refuse Reconciliation in Islamic Perspective and Gender Analysis"
on August 7, 2019, Reflecting on Islam and feminist lenses, this article explores the legitimacy of wives' refusal to reconcile. There have been attempts to trace the evolution of Sharia portrayals from more traditional to more progressive ones. This article examines the issue through the lens of gender equality and justice theory, arguing that everyone has the freedom to make their own choices as long as those choices benefit society as a whole 8.
This previous research is in accordance with the research that will be carried out examining aspects of family law related to women's rights and the difference is the view between Wahbah Zuhayli and the Compilation of Islamic Law stipulated in articles 164 and 165 on reconciliation for wives. In this study, we will study the concept of reconcileral and domestic violence according to experts and the view of refusal to reconcile wives as victims of domestic violence from husbands according to Wahbah Zuhayli and the Comilation of Islamic Law regulated in articles 164 and 165 concerning reconciliation for wives.
METHOD
This research uses library research methods
9. The data for this discussion were gathered
7 Muhammad Ichsan Parinduri, “Analisis Yuridis Tentang Rujuk Dalam Tenggang Masa ’Iddah Talak Raj’i Menurut KOMPILASI HUKUM ISLAM Dan Fiqih Islam” (Universitas Sumatera Utara, 2015): 8.
8 Arini Rafida, “Hak Istri Menolak Rujuk Dalam Perspektif Islam Dan Analisis Gender,” Yinyang:
Jurnal Studi Islam, Gender dan Anak 14, no. 2 (2019):14.
9 Amir Hamzah, Metode Penelitian Kepustakaan (Library Research) (Malang: Literasi Nusantara
by reading Sheikh Wahbah al-Zuhaili’s thoughts and interpretations of quotations from the Compilation of Islamic Law, particularly Articles 164 and 165. The work of Shaykh Wahbah Zuhayli and other scholars and experts in the field of fiqh and ushul fiqh is used as the main source. Shaykh Wahbah al-Zuhaili’s opinion is compared with Articles 164 and 165 of the Compilation of Islamic Law to determine the research methodology that is a normative legal approach. Regarding Sheikh Wahbah Zuhayli’s views on the right of deliberation that violates Articles 164 and 165 of the Compilation of Islamic Law, this study also uses a historical approach to reconstruct past events 10.
The study combined primary and secondary data. Primary sources, such as Shaykh Wahbah Zuhayli’s views on Reconciliation as set forth in his book “Islamic Fiqh Wa Adillatahu” and Articles 164 and 165 of the Compilation of Islamic Law, are authoritative and form the main basis of debate. Secondary sources, such as books, articles, and magazines, provide background information and context for the topics covered. Literature and citation methods are used to compile this information, especially reconciliation works related to the topic of marriage as a whole.
Qualitative descriptive methods11 will be used to analyze data collected from literature reviews. Deductive and comparative methods are used to analyze the data. To reach consensus, Islamic schools use deductive analysis of the overarching concept of the model. Scholars who study similarities and
Abadi, 2020):21.
10P. JOKO Subagyo, Metode Penelitian Dalam Teori Dan Praktek (Jakarta: Rineka Cipta, 2004).
11Winarno Surakhmad, Pengantar Penelitian Ilmiah (Bandung: Tarsito, 1998).
differences between disciplines often use a comparative approach when discussing this concept and its relationship with the Indonesian Islamic Law Association. The methodology of this study aims to explain the difference between Shekh Wahbah al- Zuhaili’s views on the right to consult and Articles 164 and 165 on Islamic Law.
ANYLISIS AND DISCUSSION Definition of Reconciliation
Reconciliation takes place when a divorce occurs between a husband and wife. The reasons for this are based on Article 113 of the Compilation of Islamic Law, where the termination of marriage can occur due to death, divorce, and court decisions. Factors that contribute to divorce include economic factors, disharmony, infidelity, or it can also happen because one of the partners has abandoned Islam or apostatized.12
The Arabic word raja'a-yarji'u-ruju'an, means to restore or restore the legal status of the entire marriage after a divorce lawsuit filed by the ex-husband. The wife divorces while in her iddah 13.The term "Reconcile" is used to describe the desire to return again with a wife who has been rejected. Meanwhile, here are some re used by the scholars of the madhab":
1. Reconciliation, according to the Hanafi school, gives the husband irreplaceable property rights over his wife during the period of iddah but removes it after the 'iddah is over.
2. The Maliki School holds that a divorced
12Logi Farman and Ferdi Aditya Hidayat, “Legal Considerations of Religious Court Judges in Divorce Applications on the Basis of Apostasy,” Lambung Mangkurat Law Journal 8, no. 2 (2023): 60.
13Abdurrahman Al-jaziri, Al-Fiqh Ala Mazahib Al- Arba’ah (Mesir: Al-Maktab AtTijariyati Al Kubro, n.d.):377.
wife who has recovered who commits a crime out of fear she will not be able to get a new contract is an example of a couple getting along well, but this does not constitute a rapprochement.
3. Reconciliation is the resumption of marital relations after the first or second divorce of a wife during the period of 'iddah, as taught by the Shafi'i school. A wife has the same restrictions as everyone else, but her husband is allowed to suggest sexual activity between the two of them without his consent. Thus, the purpose of reconciliation is to return the husband and wife to a state of harmony conducive to a happy marriage.
4. The Hanbali School holds that talaq bai'n without a contract is not a Reconciliation but the return of a wife to her husband after divorce. Intentionally or unintentionally through speech or action (sexual encounter).
Reconcile, according to most Islamic scholars, is defined as the return of a husband during 'iddah to a wife who has been divorced once or twice but has not entered into a new contract, regardless of whether or not the wife knows about the peace either voluntarily or not. Since the wife is still in the period of 'iddah in talaq raj'i, the husband who divorces his wife still has the right to return with her. Departing from this explanation, these scholars concluded that divorced husbands and wives in raj'i status should not have sexual relations during 'iddah. During 'iddah, the ex- husband can go back to his wife (reconcile) and reconcile to her as "wife" and treat her as his legal partner. However, the purpose of this divorce certificate is to prevent the ex- husband from having sexual relations with his ex-wife. Therefore, an affidavit from the
husband is required who is willing to reconcile the divorced wife to win her back.
To reconcile after divorce in KBBI, the husband must return to his wife during the iddah period 14 Arabic was the original source of the term, which was later adopted by Indonesian. So, of course, the Arabic definitions and KBBI have something in common.
In simple terms, reconciliation reconciles to the divorce decree issued by the reconcileral of the ex-husband to his ex-wife when 'Iddah'.15. Propositions on Reconciliation In Q.S Al Baqarah/2: 228
وَالْمُطَلّ قٰتُ يَتَرَبّ صْ نَ بِاَنْفُسِهِنّ ثَلٰثَةَ قُرُوْۤءٍۗ وَلَا يَحِلّ لَهُنّ اَنْ يّ كْتُمْنَ مَا خَلَقَ اللّ هُ فِيْٓ اَرْحَامِهِنّ اِنْ كُنّ
يُؤْمِنّ بِاللّ هِ وَالْيَوْمِ الْاٰخِرِۗ وَبُعُوْلَتُهُنّ اَحَقّ بِرَدِّهِنّ
فِيْ ذٰلِكَ اِنْ اَرَادُوْٓا اِصْ لَاحًا ۗوَلَهُنّ مِثْلُ الّ ذِيْ عَلَيْهِنّ
بِالْمَعْرُوْفِۖ وَلِلرِّجَالِ عَلَيْهِنّ دَرَجَةٌ ۗ وَاللّ هُ عَزِيْزٌ
حَكِيْمٌ ࣖ ٢٢٨ Meaning: “Divorced wives (are obligated) to refrain from (waiting) three times qurū' (holy or menstruating). It is not permissible for them to hide what God created in their wombs, if they have faith in Allah and the Last Day. Their husbands are more entitled to return to them in that time, if they desire improvement. They (women) have rights in balance with their obligations in a proper manner. However, husbands have advantages over them. Allah is mighty, wise 16
This verse explains why divorced ex- husbands are more entitled to recommend their ex-wives during iddah, especially in the context of reconciliation. Reconcilerals
14Kemendikbud, “Kamus Besar Bahasa Indonesia Edisi V,” kbbi.kemdikbud.go.id.
15Abdul Rahman Ghozali, Fiqih Munakahat (Jakarta:
Kencana, 2008):287.
16Kemenag, Mushaf Mumtaz Al-Quranul Karim Tafsir Perkata, Tajwid Warna, Tajwid Angka Arab Dan Transliterasi (Jakarta: Maktabah Al-Fatih, 2015).
are made to help restore peace and resolve disputes after divorce. Although a wife has the same legal protection and responsibilities as her husband, the husband holds the position of head of the household. Allah is the Almighty and the taka da who can defeat Him, and He is the Most Wise in establishing His Shari'a and regulating the affairs of His creatures.
Also in Q.S al-Baqarah/2:229 which reads as follows:
اَلطّ لَاقُ مَرّ تٰنِ ۖ فَاِمْسَاكٌۢ بِمَعْرُوْفٍ اَوْ تَسْرِيْحٌۢ
بِاِحْسَانٍ ۗ وَلَا يَحِلّ لَكُمْ اَنْ تَأْخُذُوْا مِمّ آ اٰتَيْتُمُوْهُنّ
شَ يْـٔ ا اِلّ آ اَنْ يّ خَافَآ اَلّ ا يُقِيْمَا حُدُوْدَ اللّ هِ ۗ فَاِنْ
خِفْتُمْ اَلّ ا يُقِيْمَا حُدُوْدَ اللّ هِ ۙ فَلَا جُنَاحَ عَلَيْهِمَا فِيْمَا افْتَدَتْ بِهٖ ۗ تِلْكَ حُدُوْدُ اللّ هِ فَلَا تَعْتَدُوْهَا
ۚوَمَنْ يّ تَعَدّ حُدُوْدَ اللّ هِ فَاُولٰۤىٕ كَ هُمُ الظّ لِمُوْنَ ٢٢٩ Means : "The talaq (which can be reconciliationd) is twice. (After that the husband can) restrain (reconcile) in an appropriate manner or release (divorce) well. It is not lawful for you to take back something (dowry) that you have given them, unless both (husband and wife) are worried about not being able to carry out the limits of Allah's provisions. If you (the guardian) are concerned that both are unable to observe the limits (provisions) of Allah, then both of them have not sinned for the payment (must) be given (by the wife) to redeem themselves.68) These are the limits (provisions) of God, do not violate them. Those who transgress the limits of Allah are the unjust people. 17
In the event that he divorced his wife more than once, this settlement applies to all divorces. The husband has only two choices after the second divorce: treat his wife well so that she can support the family, or treat her well after the third divorce. The husband is not allowed to withhold his wife's dowry unless both spouses agree that mutual hatred
17 Ibid, 378.
does not allow to fulfill their responsibilities.
By giving away her husband's property in exchange for divorce, a wife can easily perform khulu' (annulment of marriage initiated by the wife). The various levels of halal and haram are determined by Sharia law.
Those who violate God's commandments are evildoers.
I. Types of Reconciliations
a. Reconciliation talaq raj’i is the process of getting along with husband and wife before the end of the iddah period This can be done by declaration or intimate relationship, without the need for a new marriage agreement.
b. Reconciliation talaq Ba’in After the period Iddah, husband and wife decide to reconcile, then a new marriage contract must be signed (Talak Ba’in).
18.
II. Pillars of reconciliation according to several madzhabs include: 19:
a. Hanafi scholars of Madzhab argue that the pillars of reconciliation are twofold:
Sighat the statement of reconciliation again and the deed that indicates the desire.
b. Ulama Madzhab Shafi'iyah that the pillar of reconciliation is sighat and the husband who will reconcile it
c. Ulama Madzhab Hambali that the pillars of reconciliation are in addition to the pillars proposed by Shafi'iyah, plus mixed husband and wife.
d. Maliki scholars argue that the pillar of reconciliation is an act that shows the husband is reconciled again and the
18Dahlan, Fikih Munakahat (Yogyakarta: Deepublish, 2015),5.
19M.Ali Hasan, Pedoman Hidup Berumah Tangga Dalam Islam (Jakarta: Siraja, 2003).
wife is reconcilered.
III. Procedures of Reconciliation according to Shaykh Ibrahim Al-Baijuri in Anwar, namely:
a. One way to reconcile with an ex- raj'i partner is to use direct speech (sarih), such as when a husband says "raja'tuki" (I mean you) to his ex-wife.
b. Satirical words (Kinayah) It can also be used to give advice, such as when a husband tells his divorced wife, "Zawajtuki", which literal translates to "I am married to you".
Even if the husband fluent Speaking Arabic, he does not need to call his wife in that language 20.
These divorce cases are similar to those discussed in the excerpt above, in that they both involve a husband divorcing his wife after the couple has gone through one or more previous divorces. Violence can arise from normal tensions that couples experience in family relationships, such as disagreements about money or communication failures. This is a tactic some abusive husbands use to traumatize or physically hurt their wives. The wife's mind was spinning around, and she felt anxious and threatened.
Acts of domestic violence include unlawful threats of action, coercion, or deprivation of liberty, as well as physical, sexual, psychological and/or family pain or suffering. Family 21. This domestic violence usually includes:
1. Physical Violence
20Anwar, “RELEVANSI KONSEP RUJUK WAHBAH AL- ZU ḤAILĪ DALAM KOMPILASI HUKUM ISLAM” (UIN Ar-Raniry Banda Aceh, 2022).
21(DPR RI &; PRESIDENT OF THE REPUBLIC OF INDONESIA, 2004)
2. Psychic Violence 3. Sexual Violence
In most cases of physical violence, the victim suffered multiple injuries from being hit or stabbed with a sharp object. In addition to physical abuse, a wife who is beaten may also hear hurtful words, such as profanity, used against her. This is according to Triana (2018). Therefore, tensions in the family eventually caused the husband to file for divorce. Women commit high rates of sexual violence, including victimization and abuse. This includes the first and subsequent divorces. Husband couple. Damage to one's self-esteem can result from sexual violence 22.
When quarrels and tensions arise in the house due to misunderstandings, both husband and wife should be tenacious and sympathetic to each other. Due to their inability to communicate effectively with each other, their marriage is no longer happy and fulfilling, and constant quarrels are inevitable.
Since marriage is more than just bringing two people together for the rest of their lives, it's important for both parties to be on the same page spiritually and religiously before marriage. Therefore, when problems arise in marriage, whether financial or otherwise, couples must resolve them while respecting each other's dignity. The foundation of the sakinah mawaddah wa rahmah family lies in the good intentions of the couple.
Marriage is "an agreement of exchange that leads to a legal relationship between a man and a woman", as argued by Muhammad Abu Zahrah. Marriage, according to Muhammad
22Mara Martini, Stefano Tartaglia, and Norma De Piccoli,
“Assessing Rape Myth Acceptance: A Contribution to Italian Validation of the Measure for Assessing Subtle Rape Myth (SRMA-IT),” Sexual Abuse: Journal of Research and Treatment 34, no. 4 (2022): 375–397.
Abu Zahra, requires a commitment to help each other. Although husband and wife each have their own responsibilities in a marriage, they must balance and strengthen each other in order to create a harmonious home.
A. Wahbah Zuhayli's View on Reconciliation
According to the Wahbah Zuhayli and Ulama Mazhab, the husband has the exclusive right to reconcile with his wife without seeking the permission or consent of others. Since a raj'i divorced wife is subject to the wife's law during the iddah period 23, she is not obliged to be accompanied by a guardian or dowry when the husband and wife are reconciled.
According to Wahbah al-Zuhaili's interpretation of Tafsir al-Munir, the word اِنْ
اَرَادُوْٓا اِصْ لَاحًا indicates that reconciliation is acceptable as long as the goal is to improve things rather than harm. This shows that Reconcile is acceptable as long as the goal is to make things better rather than worse.
The husband is prohibited from extending his wife's 'iddah period by causing financial difficulties for her 24.
Reconcileral is possible only if there is a sincere desire to improve family relations and defuse conflicts. Because the peace and tranquility of the home can only exist if the wife approves. Therefore, a settlement that the wife does not accept is impossible. Because Maqashid Sharia requires the consent of the wife to realize its substance, namely the benefit of Al-Zuhaili25.
23Al-Zuhaili, Fikih Islam Wa Adillatuhu, 379.
24Sukron, “Hak Perempuan Menolak Rujuk Suami Dalam Kompilasi Hukum Islam Perspektif Maqashid Al-Syariah” (Institut Agama Islam Negeri Madura, 2020):87.
25Al-Zuhaili, Fikih Islam Wa Adillatuhu, 376.
Reconcileral, according to Ali al-Sayis, should be done with good intentions (ishlah) and must not result in harm or harm to the reconciled wife. He claimed that the wife was the one to reconcile to in judging whether the reconciliation would cause him any harm.
As a result, the wife can use herself as a measuring stick to determine whether the settlement will harm her. Ali Sayis's analysis takes into account the value of his opinion, whether the settlement will harm him or not.
In this regard, the wife is free to accept or reject the offer of peace. 26
Table 1. Wahbah Zuhayli's View on the Wife's Refusal to Invite a Husband Right of
reconciliation to make a reconciliation
The husband has full ownership rights over his advice, which is not subject to the review or approval of any third party.
Since a wife who has been divorced with raj'i is subject to the wife's law during the time of iddah, and peace is the wife’s custody, no guardian or dowry is required for that peace to take place.
Prohibition of
Reconciliation if If the intention is to convey the mudharat of a divorced woman, then any mention of the wife is forbidden.
Reconciliation occurs if there is an intention to improve, not bring improvement, as Wahbah Zuhayli explains in his Tafsir al-Munir.
Purpose of
Reconciliation To improve the marriage relationship.
26Sukron, “Hak Perempuan Menolak Rujuk Suami Dalam Kompilasi Hukum Islam Perspektif Maqashid Al-Syariah: 89.”
B. Compilation of Islamic Law Review on Refusal to Reconcile Wives
There is no requirement in the Qur'an or Sunnah that the wife's consent involves the husband. However, nothing requires or forbids a husband and wife to reconcile against their will. Therefore, according to the author, allowing citations as a legal necessity is very important. The importance of a wife's permission to make a reconcileral to her husband should be understood before deciding whether this practice violates Sharia law or not. First of all, the wife's consent is not mandated by the Qur'an or Hadith. There is no prohibition against a wife mentioning her husband in the Qur'an or Sunnah. Therefore, issuing a reconciliation license is currently required by law.
There is a requirement for legal procedures to be effective in Islamic law. Good terms Shar'i (as enforced by Islamic law) and conditions Ja'li (imposed by the government for a specific purpose) must be fulfilled for the lawsuit to succeed, as explained by Wahbah Zuhayli27. According to the ruling of the Religious Court in Jabal Sabil, a wife has no right to refuse if her husband reconciles and she is not aggrieved, even though she does not like the idea. This is done to maintain the five pillars of Islam. "Maqasid'majmu'ut dharuriyat' in concept Al Sharia As-Shatibi', reconciles to the safeguarding of faith, family, children, property, and soul. 28
27Al-Zuhaili, Fikih Islam Wa Adillatuhu.
28Jabbar Sabil, Maqasid Syariah, Edisi 1, C. (Depok:
Rajawali Pers, 2022).
Table 2. IHL Review of the Wife's Refusal to Invite a Husband to Reconcile
Article 164 Compilation of Islamic Law “A woman during the period of ‘iddah talaq raj’i has the right to object to the will of reconciliation of her ex- husband before the Registrar of Marriage Certificates in the presence of two witnesses”
Article 165 Compilation of Islamic Law “Reconcilerals made without the knowledge of the ex-wife may be declared invalid by the decision of the Religious Court”.
Refusal of Reconciliation “The wife has the authority or right to consider whether she accepts the invitation to reconcile or refuses it”
according to articles 164 and 165.
ex-husband has legal standing. That's why
"ahaqu" doesn't mean the wife can't refuse the offer of settlement if she doesn't want to.
Therefore, the drafters of the "IHL" stipulated that the consent of the ex-wife was necessary for the settlement to proceed.
The wife's right to consider accepting or rejecting an invitation to reconcile is explained by the Compilation of Islamic Law, an Islamic law emphasized by Indonesian scholars and also applicable in Indonesia:
Article 164: "A woman during the period of iddah talaq raj'i has the right to object to the will of reconciliation of her ex-husband before the Marriage Certificate Registrar in the presence of two witnesses" Article 165: "A reconciliation made without the knowledge of the former wife may be declared invalid by the decision of the Religious Court" 30.
Researchers found that in order to reconcile, husbands and wives need to respect existing rules. The clerics led the independence movement for the betterment of Indonesia's Muslim population, which led to this development. The husband cannot reconcile his wife without her consent, as reconcilered to in Articles 164 and 165. In iddah talak raj'i, a woman has the legal right to refuse her
30Undang-Undang Republik Indonesia Nomor 1 Tahun 1974 tentang Perkawinan dan Kompilasi Hukum Islam
Interesting from the above information, according to the author, the principles regarding the rights of wives in reconciliation include the terms of ja'li. Because the main purpose of the enactment of Sharia law is benefit, then when we talk about Maqashid Sharia, especially the purpose of law we mean benefit.
The argument about the right of reconciliation that the husband has while the wife refuses to be reconcilered is in QS. Al Baqarah Verse 22829 :
وَبُعُوْلَتُهُنّ اَحَقّ بِرَدِّهِنّ فِيْ ذٰلِكَ اِنْ اَرَادُوْٓا اِصْ لَاحًا ۗ Meaning: Their husbands are more entitled to return to them in that (period), if they desire improvement.
Based on verse 228 of Surat al-Baqarah, Islamic scholars agree that a wife who divorces a raj'i (one or two talaqs) during her iddah has no reason to refuse reconciliation with her ex-husband. We find that the husband is considered a person who has the right of reconcileral. However, "husband is more entitled" has been interpreted as the meaning of the word "ahaqu" in QS 228 al-Baqarah.
That is, I believe that someone other than the
29Kemenag, Mushaf Mumtaz Al-Quranul Karim Tafsir Perkata, Tajwid Warna, Tajwid Angka Arab Dan Transliterasi.
ex-husband's request for reconcileral before the registrar of marriage certificates in the presence of two witnesses as reconcilered to in Article 164 of the examination results.
If a husband in the IHL wants to reconcile with his wife, then he must ask for blessing first. In order to maintain peace and harmony in the family, it is very important to pay attention to the members' feelings of security and comfort during the repair process. The settlement depends on the wife's consent to reconcile to the matter which is the main condition. There are strict rules for a husband who wishes to reconcile his wife, as stated in Articles 164 and 165 of the Overview of Islamic Law cited above.
From what has been stated above, it is clear that the wife's blessing is needed. Moreover, if the husband acts unilaterally, he cannot apply for a reconcileral to VAT (Marriage Registration) without the wife's consent. Does not meet the requirements as documented in the Compilation of Islamic Law according to applicable law if it is still done unilaterally, for example the husband goes directly to VAT to reconcile his wife.
So it can be seen that before the Religious Court takes a decision to declare the denial valid, it is first required as reconcilered to in Article 165, that if there is information or reasons that contradict the willingness of the former and husband to reconcile, then the judge will consider whether to grant the objection.
The rules reconcilered to in this Compilation of Islamic Law clause are reasonable because they concern the balance between the husband's right to reconcile and the wife's right to refuse or accept reconcileral, both of which are guaranteed by Article 165 of the Constitution, Compilation of Islamic
Law This means that neither party can rely on the rights of third parties. Because the Compilation of Islamic Law considers this based on the concept of maslahah which is guarding the wife's property, reconciliation without the wife's knowledge is declared invalid in Article 165 of the Compilation of Islamic Law. security. The wife was worried that her husband would look cold and arbitrary. Maslahah is based on the rules of ushul, which can be summarized as: 31
درء المفاسد مقدم على جلب المصالح Meaning: "Rejecting damage is more important than taking trouble"
Indonesian Ulema do not seek to overturn the principles of Islamic law established by the Ulema School . Rather it is an attempt to modernize, adapt, and develop Indonesian Islamic law without violating Islamic principles. One form of security that IHL provides to women is the option to refuse reconcilerals to their husbands. To prevent injustice, some jurisdictions grant exclusive divorce rights to husbands so that they can remarry their spouse at any time during divorce proceedings.
If the wife does not have permission when she wants to reconcile, she seems to have no control over the husband's dominance.
The position of the wife is more decisive than that of the husband, and she has a greater influence on the circumstances of the spouse.
If the husband is in a fit condition and the IHL has given a gift to his wife in accordance with the above provisions but the wife refuses or accepts, i.e. refuses or agrees to reconcile, then the husband may not take his wife with him. Its counterpart can also be found in
31Sukron, “Hak Perempuan Menolak Rujuk Suami Dalam Kompilasi Hukum Islam Perspektif Maqashid Al-Syariah: 79.”
Compilation of Islamic Law.
Contrary to Articles 164 and 165 of the Compilation of Islamic Law, women have the right to refuse peace from their husbands under Sharia law. This is a significant deviation from the Shari'ah law itself. Each rule in the Codification of Islamic Law, including Articles 164 and 165 in this regard, certainly has its own justification that partly does not deviate from the purpose of establishing Islamic law or the so-called Maqassi Syariah, and we know that the Codification of Islamic Law Islamic Sharia exists for the positivity of Islamic law in Indonesia, as a basis, and to create good values for Indonesian Muslims in legal matters.
Therefore, Articles 164 and 165 of the Islamic Code can be concluded to support the wife's right to object. According to the above, the husband's right of reconciliation is in accordance with the teachings of the Qur'an (2:28). The IHL was created to be regulated in the context of ratifying laws, so it is in some ways similar to Indonesian jurisprudence. In such reconcileral cases, the IHL allows the wife to the Religious Court to express her objection to the husband's reconcileral. However, the wife must have sufficient evidence based on her own personal experience, such as physical abuse, such as hitting or kicking, or verbal abuse, such as the husband yelling or saying rude. has caused severe emotional distress, the wife has rejected his offer of Reconcileral because of this. However, the husband's actions did not contradict sharia law, as later determined by the court.
According to Triana's research, judges in religious courts have a lot of potential to seek justice for victims of intimate partner violence who are mostly women. The reason is, the
Religious Court often grants divorce lawsuits for victims of domestic violence. However, there has been little progress in resolving divorce cases by Religious Court judges. The principle of passive law in civil judges still applies. Therefore, the wife (plaintiff) will not receive idah, mut'ah, maskan, kiswa, or any compensation from the husband (defendant) if she (plaintiff) does not file a claim against her husband (defendant) regarding income and compensation. 32.
CONCLUSION
This article delved comprehensively into the concept of "Reconcile" or "reconciliation"
within the context of Islamic law, particularly in the realm of talaq raj'i divorce.
Fundamentally, reconciliation is an endeavor to restore marital ties that have undergone divorce within the iddah period. Various perspectives and opinions from scholars, as well as the Indonesian legal standpoint, have been expounded upon in this article to provide a deeper understanding of reconciliation.
Regarding the question of how reconciliation is governed in Islamic law, it can be inferred that there is a general consensus that the wife's consent is a vital element in the reconciliation process. Despite variations in views across different schools of thought, this principle underscores the importance of respecting the rights and well- being of the wife. Therefore, it is imperative for the husband to obtain the wife's consent before seeking reconciliation.
The article also underscores the significance of maintaining a balance between the rights
32Nita Triana, “Progressivity of Judges in Domestic Violence Disputes Settlement in The Case of Divorce in The Religious Court,” Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 2, no. 1 (2018): 1.
of the husband and the wife throughout the reconciliation process. Principles of justice and the protection of women's rights are foundational in regulating reconciliation, with religious courts playing a pivotal role in ensuring proper implementation in accordance with Islamic teachings and applicable laws.
In response to the query of how reconciliation is governed in Islamic law, this article provides a clear and comprehensive overview. While there may be differences of opinion among scholars and schools of thought, principles of equity, wife's consent, and well-being emerge as key considerations in understanding the concept of "Reconcile."
As such, the reconciliation process transcends legal aspects, encompassing values of justice and humanity.
In summation, this article offers a wide- ranging perspective on reconciliation within Islamic law, elucidating both scholarly viewpoints and the Indonesian legal context.
Ultimately, it remains imperative to ensure that the implementation of the "reconcile" concept within Islamic law upholds women's rights and principles of justice, all in the pursuit of achieving harmony within the family.
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