pISSN: 2723 - 6609 e-ISSN: 2745-5254
Vol. 5, No. 5 Mei 2024 http://jist.publikasiindonesia.id/
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2259
Legal Legality of Pregnant Marriage in Indonesia
Study on the Application of Khi Article 53 in Mlati District
Prospective Fatwa Abno Taymiyah
Binarsa
Universitas Pgri Yogyakarta, Indonesia
Email: [email protected]
*Correspondence
ABSTRACT
Keywords: Marriage to
Pregnant Women; The
Kompilasi Hukum Islam;
Al-Qur'an Sunnah; Ibn
Taimiyyah.
Formulating the Compilation of Islamic Law is inseparable
from the growth and development of Islamic law and the
institution of the Religious Courts before and after the
Indonesian people proclaimed their independence on August
17, 1945. The research methodology is library research. The
nature of this dissertation research is descriptive research
and verification research. This research approach uses a
philosophical approach, a historical approach, and a
normative approach. The conclusions are as follows: The
application of pregnant marriage in the sub-district of Mlati
Sleman from the perspective of Ibnu Taimiyyah's fatwa is
invalid, and 13 books have been used to compile the
compilation of Islamic law. The conclusion of the
implementation of pregnant marriages carried out in Mlati
District in the 2017-2019 time period, in the view of Ibn
Taymiyyah's fatwa, is not valid according to Sharia. Thus,
the author argues that Ibn Taymiyyah's theory of maternity
marriage needs to be raised and made into a new theory to
solve this problem and, at the same time, to replace the
existing theory in Article 53 of the Compilation of Islamic
Law.
Introduction
The formulation of the Compilation of Islamic Law in Indonesia aims to prepare
uniform guidelines (unification) for Religious Court Judges and become a positive law
that must be obeyed by all Indonesians who are Muslims (Nasution, 2021). Therefore,
there is no longer any confusion over the decisions of the Religious Courts.
One of the provisions of the Compilation of Islamic Law is the law on pregnant
marriage. This legal provision for pregnant marriage, mentioned in KHI article 53, has
been in effect and applied to Indonesian society (Aulia & Effida, 2018).
In its daily application, society has a phenomenon that occurs: "Married while
pregnant" does not cause a great disgrace to the perpetrator and his family. It is also
encouraged that, in reality, if someone submits a marriage to the Office of Religious
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Affairs, where they are domiciled, the Office of Religious Affairs will still carry out the
marriage even though the client is pregnant (Maulidah & Malang, n.d.).
The Office of Religious Affairs also did not act rashly and playfully. They carry out
marriages to their clients based on the arguments made by Indonesian Ulama (Aristoni,
2016). The arguments that are used as evidence are the Compilation of Islamic Law,
which has become an 'urf or habit to solve marriage problems in a state of pregnancy. The
problems of pregnant marriage in the Compilation of Islamic Law are described in Article
53 (Karay, Dahri, & Sari, 2023). The provisions of article 53, which consist of paragraphs
1-3, are:
a. A woman who becomes pregnant out of wedlock can be married to the man who made
her pregnant.
b. Marriage with a pregnant woman, referred to in paragraph one, can be carried out
without waiting for the birth of her child.
c. By getting married when the woman is pregnant, there is no need for re-marriage after
the child is born. They use these arguments or provisions to carry out marriages to
their clients.
However, in practice, an exciting case occurred, namely Tajdiidu Al-Nikah, if the
-Nikah events in the Mlati sub-district from 2017-2019 had
reasons for doubt and was invalid by 75 per cent (Husyaini, Nasrallah, Maulana, &
Jamarudin, 2022). This event becomes a fascinating problem: Why did the family
-Nikah? How could this happen?
Starting from the background and objectives of the Compilation of Islamic Law
Article 53 provisions and the reality of its application in people's lives, it appears that
there are new problems related to the implementation of pregnant marriage. Due to the
emergence of these problems, legal solutions are needed (Yumarni, 2019).
When studying and studying the theories or opinions of other Ulama, for example,
Syaih al-
concluded that marriage in a state of pregnancy can be carried out if several conditions
are met first, namely:
a. The offender must repent first
b.
The problem of implementing pregnant marriages that occur in the community,
especially in the Mlati Sleman District, is the limitation of this research study. There are
differences in ijtihad by the scholars in the law on pregnant marriages (Idrus, 2022). By
looking at the number of marriages in a state of pregnancy that is close to 10 per cent per
year, This shows the importance of this problem to be studied and find a solution or
answer (Rahim, 2017).
The results of this study can also be a tool for saddle-/preventing more
damage. At least by practising the conditions mentioned above, people will be inclined to
be. Before discussing academic research issues, the author conveys the urgency of Ibn
Taimiyyah, who is used to reviewing this research problem (Inayati, 2015). Some of the
urgency is as follows:
Legal Legality of Pregnant Marriage in Indonesia Study on the Application of Khi Article 53 in
Mlati District Prospective Fatwa Abno Taymiyah
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2261
a. Based on the results of previous studies that the authors have described, no one has yet
discussed the law on pregnant marriage in detail from the perspective of Ibn
Taimiyyah's fatwa.
b. Some Indonesian people, especially in the Mlati sub-district, have implemented
Islamic Sharia, especially the law on pregnant marriage, in accordance with Ibn
Taimiyyah's fatwa
c. Ibn Taimiyyah is a must-kill mujtahid, as explained by Muhammad Amin Suma after
his dissertation entitled "Ijtihad Ibn Taimiyyah in Islamic Fiqh." Muhammad Amin
Suma said: "In Ibn Taimiyyah, all the requirements for ijtihad were collected. He has
memorised the Koran well since the age of seven, and experts recognise his knowledge
of the interpretation of the Koran. Ibn Taimiyyah almost memorised most of the Hadith
within the capabilities of an 'alim (mujtahid), and his proficiency in 'mulmul al-Hadith
-Fiqh is at the same level as the mujtahids
of must kill, and his mastery of the jurisprudence of various schools exceeds that of
the adherents of those schools themselves. He is good at Arabic, and his knowledge of
proposals and forums is very high. He has mastered so many arguments for naqli and
'aqli, and successfully combining these two propositions is difficult to find.
Muhammad Amin Suma further said: "Ibn Taimiyyah is also an absolute mujtahid
because any mujtahid does not bind him."
On this basis, the results of this research need to describe how and what the results
of the study, research on the law of pregnant marriage examine the application of pregnant
marriage in the Mlati sub-district from the perspective of Ibn Taimiyyah's fatwa and what
references were used to compile the Compilation of Islamic Law?
Method
The research methodology used in this research is library research. The nature of
this dissertation research is descriptive research and verification research. This research
approach uses a philosophical approach, a historical approach, and a normative approach.
Results and Discussion
Application of Article 53 Compilation of Islamic Law in Mlati District
Marriages in a state of pregnancy for three years, namely from 2017 to 2019 in the
Mlati sub-district, are increasing. This can be explained by the fact that in 2017, the total
number of cats in the Mlati sub-district was 504 cats, while those who were married were
pregnant. There were 45 cabins, and the percentage is 8.1 per cent (Kurniawati &
Juliningrum, 2019). In 2018, the total number of cats in the Mlati subdistrict was 535;
while those who were married were pregnant, there were 52 cabins. Suppose the
percentage is 8.5 per cent. In 2019, the total number of cats in the Mlati subdistrict was
540 cats, while those who are married are pregnant. There are 58 cats. If the percentage
is 9.7 per cent,
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Likewise, it can be concluded that the number of respondents/families who perform
-Nikah from 20172019 has increased. With details in 2017 with a total of 5
respondents/family. Suppose the percentage is 24 percent. In 2018, there was a total of 7
respondents/families. Suppose the percentage is as much as 33 per cent. In 2019, there
was a total of 9 respondents/families. Suppose the percentage is as much as 43 per cent.
The -Nikah are:
From 21 respondents/families, -
Nikah are1). Reading fiqh, there are only two respondents/families. If it is presented as
much as 9.5 per cent, 2). Following the invitation of the ustadz/ustazah/other people, there
were three respondents/families. If it is presented as much as 14 per cent, 3). There is
doubt that there are five respondents/families. If it is presented as much as 24 per cent,
4). There are 11 respondents/families who assume that there are 11 respondents/families.
Suppose it is presented as much as 52 per cent. From the data above, it can be concluded
-Nikah have reasons that
their marriage is invalid; there are doubts, namely as much as 75 per cent (MALVINAS,
2022).
The Office of Religious Affairs also did not act rashly and playfully. They carry out
marriages to their clients based on the arguments made by Indonesian Ulama. The
arguments that are used as evidence are the Compilation of Islamic Law, which has
become an 'urf or habit to solve marriage problems in a state of pregnancy (Fitriyah,
2016). The problems of pregnant marriage contained in the Compilation of Islamic Law
are described in Article 53. The provisions of article 53, which consist of paragraphs 1-3,
are:
1. A woman who becomes pregnant out of wedlock can be married to a man who made
her pregnant.
2. Marriage to a pregnant woman, referred to in paragraph one, can be carried out without
waiting for the birth of her child.
3. By holding a marriage when the woman is pregnant, there is no need for re-marriage
after the child is born
They use these arguments or provisions to carry out marriages to their clients. Even
though pregnant marriages are legally valid, the number of tajwid al-Nikah is increasing.
There are several reasons why previously married couples are pregnant and then apply
for tajwid al-Nikah. Out of 21 couples, reasons 1). Reading fiqh, there are only two
respondents/families. If it is presented as much as 9.5 per cent, 2). Following the
invitation of the ustadz/ustazah/other people, there were three respondents/families. If it
is presented as much as 14 per cent, 3). There is doubt that there are five
respondents/families. If it is presented as much as 24 per cent, 4). There are 11
respondents/families who assume that there are 11 respondents/families if it is presented
as much as 52 per cent.
Application of Article 53 of the Compilation of Islamic Law in Mlati Sub-District
Perspective of Fatwa Ibnu Taimiyyah.
Legal Legality of Pregnant Marriage in Indonesia Study on the Application of Khi Article 53 in
Mlati District Prospective Fatwa Abno Taymiyah
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2263
The number of pregnant marriages in 20172019 in Mlati District has increased;
namely, in 2017, it was 8.1 percent; in 2018, it was 8.5 percent; and in 2019, it was 9.7
percent, and the implementation of marriages was the attached procedure. Moreover, the
-Nikah, as much as 75 percent, is that
the marriage they have done is invalid, and there are other reasons for doubt (Amria,
2023).
adultery. In this case, there are two problems. The first is regarding the cleansing of the
womb. Previously, we stated one opinion that the first adulterer of adultery has no honour.
The answer is cleaning the womb not for the honour of the first male sperm but for the
honour of the second male sperm because one cannot draw the lineage of a child to him
while the child does not come from him. Likewise, if the uterus is not cleaned, it may
have attached seeds from adulterers. In addition, there are two opinions of scholars
regarding the withdrawal of lineage of children by adulterers when pregnant women are
not firmly/figuratively for wives or enslaved women who are consummated."
Prophet, peace be upon him. Said:
1
"Children belong to the owner of the first, while men who commit adultery are
prevented."
So, the child is connected to the first owner, not the adulterous man. If a woman is
not a first, this hadith does not cover her. Umar linked the lineage of children born during
the Ignorance to their fathers, but this is not the place to explain that.
Then An-
1000 times or more, then he repents every time he sins, Allah will surely accept his
repentance every time he repents, his sins will fall. If he repents with just one repentance
after he has committed all the sins earlier, his repentance is valid."
Then, regarding the law of marriage with adultery while pregnant, Ibn Taimiyyah,
must fulfil several conditions. Some of the conditions that must be met are:
1) Must repent first. The arguments are as described above.
2)
a) Hadith of Abu Sa'id Al-Khudry, r.a. Indeed, the Prophet saw. Said about the Authos
prisoners of war:
"Do not have sex with a pregnant woman until she gives birth, and do not get pregnant
until she has had one menstrual cycle."
b) Hadith Ruwaifi 'bin Thabit r.a. from the Prophet, who said:
"It is not lawful for someone who believes in Allah and the Last Day, namely: do not
water other people's plants."
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c) Abu Darda' Hadith narrated by Muslims from the Prophet, who said:
“He came to a woman who was about to give birth at the door of the pasthath. He said:
Maybe that person wants to fuck him? The Companions replied: "That is right," then the
Messenger of Allah. Said: "Indeed, I have intended to curse him with the curse that was
brought to his grave. How can he inherit it when it is not lawful for him, and how can he
enslave him when it is not lawful for him.”
The arguments used by Ibn Taimiyyah above stipulate the law that a person who
commits adultery and is pregnant must wait for her iddah first, namely until she gives
birth to her. Ibn Qoyyim Rahimahullah said: "From these hadiths, there are obvious
arguments for it being forbidden to marry a pregnant woman, whether the pregnancy is
because of her husband, her master, or because of adultery."
It can also be understood from the arguments above that a woman who is pregnant
because of adultery cannot be married until she gives birth. This is her 'iddah for a woman
who is pregnant because of adultery, and this is also shown by the general word of Allah
'azza wa jalla:
you are in doubt (about their iddah period), then their iddah period is three months; and
so (also) women who do not menstruate. Moreover, for women who are pregnant, their
iddah period is until they give birth to their wombs. Moreover, whoever fears Allah, Allah
will make his affairs easy for him."
So from the description above, it can be concluded that men and women who
commit adultery and become pregnant cannot enter into marriage/marriage before they
fulfil
to be clean. For those who commit adultery but are not pregnant, if they want to be
married/married, they must meet the following requirements: 1) Repent and 2) Wait for
one menstrual cycle. If this is violated, then the marriage is invalid.
So, with the above explanation, it can be concluded that the implementation of
pregnant marriages carried out in the Mlati sub-district in the 2017-2019 time period, in
the view of Ibn Taimiyyah's fatwa, was not valid according to sharia.
Referral to the Islamic Law Commission
The referred KHI references are the sources used to establish the law on pregnant
marriage contained in article 53 KHI. The sources used to establish the law on pregnant
marriage in Article 53 KHI are from thirteen books. The thirteen books are as follows:
1) Al-
The author of the Al-Baajuri Book is Burhanuddin Abu Ishaq Ibrahim bin
Muhammad bin Ahmad Al-Baajuri Al-Mishri, who belongs to the ash-Shafi'i school.
2) Book of Fathul Mu'in
The book Fathul Mu'in was written by Shaykh Zainuddin Abdul Aziz, who belongs
to the Ash-Shafi'i school.
3) -Tahriri
The book "Hasyiah al-Syarqawi 'ala Syarh at-Tahri" )
-Syafi'iyyah
Legal Legality of Pregnant Marriage in Indonesia Study on the Application of Khi Article 53 in
Mlati District Prospective Fatwa Abno Taymiyah
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2265
scholars. This book was written by Shaykh al-'Allamah 'Abdullah bin Hijazi bin Ibrahim
al-Syarqawi (1150-1226 H).
4) Qolyuubi/Al-Mahalli Book
-Mahalli
-Thalibin. This book combines two books compiled by two well-known
Shafi'i scholars.
5)
-Syarhin Minhaju
ath--
who belongs to the ash-Shafi'iyyah school.
6) The Tuhfah Book
The original name of this book is al-Habib 'ala Syarh al-Khatib Hasyiyah al-
al-Khatib, which is a work of the Shafi'i school of jurisprudence compiled
by al-'Allamah Syekh Sulaiman bin Muhammad bin 'Umar al-Bujairimi al-Azhari (1131-
1221H).
7)
Abu Zahra (18981974) was an Egyptian public intellectual and an influential Hanafi
jurist. He occupies several positions: a lecturer in Islamic law at Al-Azhar University and
a professor at Cairo University. He is also a member of the Islamic Research Academy.
His works include Abu Hanifa, Malik, and al-Shafi'i.
8) The Book of Qowanin Syar'iyah Lissayyid bin Yahya
The book Qawanin asy-Syar'iyah li ahl al-Majalis al-Hukmiyyah wa al-Ifta-iyah by
Sheikh Uthman ibn Abdullah ibn 'Aqil ibn Yahya. Printed in 1960 AD by Printing
Syirkah Maktabah wa Mathba'ah Salim ibn Sa'd ibn Nabhan wa Akhih Ahmad. I am
finished writing in 1317 H. The author of this book belongs to the asy-Shafi'iyyah school.
9) The Book of Qowanin Syar'iyyah Lissayyid Sadaqah Dachlan
The author of this book is Sayyid Sadaqah Dachlan, who belongs to the ash-
Syafi'iyyah school.
10) The Book of Al-fikihu 'ala al--'arba'ati
The book Al-Fikihu 'ala al- -'arba'ati is written by Sheikh Abdur-
Rahman Al-
thought. He belongs to the al-Shafi'i school.
11) Book of Syamsuri fi al-Fara'idh
The author of this book is Syamsuri, who belongs to the ash-Syafi'iyyah school.
12)
-
Rahman bin Muhammad bin Husain bin 'Umar, who belongs to the Ash-Shafi'i school.
13) -Muhtajj
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Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2266
The author of the book al- -
Muhammad Abdullah bin Ahmad bin Muhammad Ibnu Qoddamah al-Hanbali. He
belongs to the Hanbali al-Maqdisi school.
Conclusion
From the explanation above, it can be concluded that the implementation of
pregnant marriages carried out in the Mlati sub-district in the 2017-2019 time period, in
the view of Ibn Taimiyyah's fatwa, was not valid according to sharia. Thus, the author
thinks that Ibn Taimiyyah's theory of pregnant marriage needs to be raised and made into
a new theory to solve this problem and, at the same time, to replace the existing theory in
Article 53 of the Compilation of Islamic Law.
By looking at the development of the times and the entry of many new schools of
thought in Indonesia and by the nature of Islamic law, namely contributing and or
protecting and providing the benefit of all citizens in Indonesia, it changes to:
a. A woman who is pregnant out of wedlock can be married to a man who impregnated
her and is required to repent first.
b. Marriage with a pregnant woman, referred to in paragraph one, can be carried out by
waiting for the birth of her child and
c. By holding a marriage when a woman is pregnant, a re-marriage is required.
Legal Legality of Pregnant Marriage in Indonesia Study on the Application of Khi Article 53 in
Mlati District Prospective Fatwa Abno Taymiyah
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2267
Bibliography
Malvinas, Heryoga. (2022). Proses Gawai Pada Perkawinan Masyarakat Suku Talang
Mamak Di Desa Talang Gedabu Kecamatan Rakit Kulim Kabupaten Indragiri
Hulu Dalam Tinjauan Hukum Islam. Universitas Islam Negeri Sultan Syarif Kasim
Riau.
Amria, Firlina. (2023). Perkawinan Endogami Pada Masyarakat Saibatin Lampung
Barat Menurut Perspektif Hukum Islam. Uin Raden Intan Lampung.
Aristoni, Aristoni. (2016). 4 Dekade Hukum Perkawinan Di Indonesia: Menelisik
Problematika Hukum Dalam Perkawinan di Era Modernisasi. YUDISIA: Jurnal
Pemikiran Hukum Dan Hukum Islam, 7(1), 7497.
Aulia, Eza, & Effida, Dara Quthni. (2018). Kodifikasi hukum Islam di Indonesia dalam
perspektif kepastian hukum. Ius Civile: Refleksi Penegakan Hukum Dan Keadilan,
2(2).
Fitriyah, Lailiyatul. (2016). Pandangan tokoh masyarakat terhadap mitos “nyebrang
segoro getih” perspektif ‘urf: Studi tradisi di Desa Pandanrejo Kecamatan Wagir
Kabupaten Malang. Universitas Negeri Islam Maulana Malik Ibrahim.
Husyaini, Ismal, Nasrulloh, Adang Muhammad, Maulana, Dudung, & Jamarudin, Ade.
(2022). Kontroversi Ketetapan Kawin Hamil Dalam Pasal 53 Kompilasi Hukum
Islam. Al Qadhi: Jurnal Hukum Keluarga Islam, 4(2), 116.
Idrus, Muhaimin. (2022). Dispensasi Perkawinan Anak Dibawah Umur Dengan Alasan
Hamil Diluar Nikah (Studi Penetapan Perkara No. 70/Pdt. P/2021/Pa. Pwl).
Universitas Muslim Indonesia.
Inayati, Inna Noor. (2015). Perkawinan Anak Di Bawah Umur Dalam Perspektif Hukum,
Ham Dan Kesehatan. Jurnal Bidan, 1(1), 4653.
Karay, Agustin C., Dahri, Muhtar, & Sari, Fitri Kartika. (2023). Legalitas Anak di Luar
Perkawinan Ditinjau dari Kasus dan Hukum Positif Nasional Indonesia.
SEMBILAN: Jurnal Hukum Dan Adat, 1(1), 112.
Kurniawati, Dini, & Juliningrum, Peni Perdani. (2019). Hubungan Dukungan Suami
dengan Kesiapan Persalinan pada Ibu Hamil Usia Remaja di Sukowono, Jember.
Pustaka Kesehatan, 7(2), 127134.
Maulidah, Nurul, & Malang, Wakil Ketua P. A. Kab. (n.d.). Kodifikasi Hukum Islam Di
Indonesia.
Nasution, Muhammad Zaid Anshari. (2021). Pandangan hakim Pengadilan Agama
Medan terhadap perbedaan penentuan awal masa iddah dalam kompilasi hukum
Binarsa
Jurnal Indonesia Sosial Teknologi, Vol. 5, No. 5, Mei 2024 2268
Islam. Universitas Islam Negeri Sumatera Utara Medan.
Rahim, Syahbudi. (2017). Kawin Hamil di luar nikah. Tasamuh: Jurnal Studi Islam, 9(1),
123156.
Yumarni, Ani. (2019). Perkawinan bawah umur dan potensi perceraian (studi
kewenangan kua wilayah kota Bogor). Jurnal Hukum Ius Quia Iustum, 26(1).
