Islamic Law and Social Change: The Religious Court and the Dissolution of Marriage among Muslims in Lombok, Indonesia 公开

Nasir, Mohamad Abdun (2013)

Permanent URL: https://etd.library.emory.edu/concern/etds/hq37vn69d?locale=zh
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Abstract

Divorce suits initiated by Muslim women (cerai gugat) constitute the greatest number of legal cases filed before the religious courts in Indonesia. In recent years, women who sued their husbands for divorce have outnumbered men who repudiated their wives and registered the repudiation in the religious courts. Fifty-five percent of family disputes brought before the religious courts from 2007 to 2009 in Indonesia were concerned with gugat divorce. This dissertation focuses on case studies of the Islamic family law of divorce and examines gugat divorce cases in one local religious court in Central Lombok, Indonesia. It examines the dynamics of Islamic law and legal reform, legal awareness, and gender and power relations that influence the ways in which the laws regarding divorce are (re)interpreted and contested among litigants and judges. It also analyzes how such contestations shape the nature of Islamic divorce in contemporary practice. The dissertation draws its information from case studies of marital disputes, courtroom discourses of Islamic law, and litigants' strategies in negotiating divorce. It also analyzes the procedures and legal sources used by the court and the strategies of judges in dealing with gugat divorce. Three main conclusions are argued in this dissertation. First, the incorporation of the Shari'a law of divorce into state law transfers Islamic legal authority from the hands of Muslim religious scholars to the state. However, this does not occur without opposition from the traditional scholars. They often challenge the legitimacy of the state to determine what Islamic law is. Second, the law of gugat reconfigures unbalanced gender and power relations between Muslim spouses and enables women to acquire greater access and power in marital dissolution. Third, although Shari'a law theoretically becomes more rigid when transformed into state law, in practice it remains fluid. While fiqh and customary norms continue to be important sources of legitimacy for marriage and divorce of Muslims in Lombok, the reinterpretation of Islamic law by the state and its reintroduction through the courts offer more room for negotiating disputes among litigants.

Table of Contents

TABLE OF CONTENTS

INTRODUCTION …………………………………………………………………………. 1

A. Research Objective and Problem ………………………………………………………. 1

B. Shari'a Law and State Law in Indonesia ……………………………………………… 9

C. Research Questions …………………………………………………………………….. 16

D. Previous Research on Divorce in Muslim Societies …………………………………... 17 E. Theoretical Approach and Methodology ……………………………………………… 29

F. Chapter Outline ………………………………………………………………………… 36

CHAPTER ONE

Religious Courts: History, Context, and Challenge in Lombok …………………………. 40

A. Religious Courts, Islamic Law, and Judicial Reform …………………………………... 41

B. Islam, Adat, and Customary Marriage in Lombok ……………………………………… 59

C. Contesting Authority: The Religious Court Judges and Tuan Guru ……………………. 87

CHAPTER TWO

Divorce and Other Legal Cases at the Religious Court of Central Lombok …………….. 109

A. The Setting of the Religious Court and its Judicial Practices …………………………. 111

B. The Court's Competence and Domains ……………………………………………...... 125 C. Patterns of Divorce and Litigants' Experiences ……………………………………….. 146 CHAPTER THREE Judicial Divorce: Meaning, Contestation, and Resistance ……………………………….. 180

A. The Meaning of Judicial Divorce ……………………………………………………… 182

B. Validity and Legality in Islamic Law: Contesting Triple Divorce …………………….. 193

C. Women's Judicial Divorce: Islamic Law, Domination, and Resistance ………………. 210

CHAPTER FOUR

Court Decisions, Judicial Discretion, and the Reinterpretation of the Shari'a …………… 237

A. The Limitation of Law and Judicial Discretion ……………………………………….. 238 B. Changing Legal Approaches to Divorce ………………………………………………. 263 C. Reinterpreting Shari'a Law, Re-gendering Divorce …………………………………... 286

CONCLUSION …………………………………………………………………………… 301

GLOSSARY ……………………………………………………………………………… 319

BIBLIOGRAPHY ………………………………………………………………………… 322

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