DISPENSASI KAWIN DI PENGADILAN AGAMA BANTUL PUTUSAN NO. 171/PDT.P/2016/PA.BTL PERSPEKTIF UU NO. 23 TAHUN 2002 TENTANG PERLINDUNGAN ANAK DAN MAQĀŞID ASY-SYARĪ’AH

Abstract

Marriage is a physical and emotional bonding between a man and a woman as husband and wife to build a long-lasting happy family with a belief in the One and Only God, which should be so maintained solemnly. This noble objective must be supported by physical readiness and maturity of the soul from both sides. Article 2 Verse (1) of Law No. 1 Year 1974 on Marriage restricts the age of marriage to 19 for men and 16 for women. However, this law gives an opportunity to the practice of child marriage if dispensation is proposed to the Religious Court as is stated in Law No. 1 Year 1974 Section 7 Verse (2). The bride and groom of child marriage are children whose age, according to Law No. 23 Year 2002 Section 1 Verse (1), is below 18 years old, including unborn children. However, child marriage has negative impacts on education, health, and high risk of divorce. The Religious Court of Bantul Regency is one of the courts that have the authority to provide marriage dispensation. In 2016, the court received 96 cases of marriage dispensation and granted permission to 87 of them. Among those, the Dispensation Verdict No. 171/Pdt.P/2016/PA.Btl, the object of this study, was granted because the person who filed the lawsuit was worried about the possibility of adultery by both parties. The main problem discussed in this thesis is which considerations become the basis of the judge in making decision for the Marriage Dispensation Verdict No. 171/Pdt.P/2016/PA.Btl and the perspective of Law No. 23 Year 2002 on Child Protection and of Maqāşid Asy-Syarī’ah towards Marriage Dispensation Verdict No. 171/Pdt.P/2016/PA.Btl. This study is library research with a normative-juridical approach and analytical-descriptive study. Data is gathered through observation, interview, and documentation. Data analysis is conducted qualitatively using the inductive method. The results show that the judge has used the fiqh norm in making decision, which is “avoiding harm is more prioritized than emphasizing goodness”, but not considered Law No. 23 Year 2002 on Child Protection and Maqāşid Asy- Syarī’ah, causing negligence of the rights of children.