Application of the Compilation of Islamic Law Article 53 Concerning Marriage to Pregnant Woman and Renewal of Marriage in Mlati District in Maqasid of Sharia Perspective

Abstract

The Compilation of Islamic Law is a source of law to solve the problem of marriage to pregnant woman in many offices of religious affairs (Kantor Urusan Agama abbriviated KAU) in Indonesia. However, many community members feel the need to perform renewal of marriage because they are hesitant or think that it is illegal to get married with pregnant waman in KAU, including in KUA of Mlati District. This study is intended to analyze the application of Article 53 of the Compilation of Islamic Law in marriage to pregnant woman in Mlati District. This study also analyzes marriage to pregnant woman and renewal of marriage from the perspective of maqāsid asy-syari'ah and analyzes the stronger law of marriage to pregnant woman. The theoretical frameworks used are the theory of law, the theory of legal objectives and functions, the theory of legal effectiveness, the views of Islamic schools of thought on the law of marrying a woman who is pregnant because of adultery, the method of rational deduction of law among four Islamic schools of thought, and Asy-Syatibi’s maqasid of sharia. This research uses qualitative analysis techniques. The results showed that the application of marriage to pregnant woman in KUA Mlati District from 2017-2019 was in accordance with the provisions of Article 53 of the Islamic Law Compilation. This application was also accompanied by increasing cases of marriage to pregnant woman and renewal of marriage. The implementation of pregnant marriage in KUA Mlati Sleman District is not in accordance with the Asy-Syatibi’s maqāsid of sharia because it only provides benefits for some people, not all people comprehensively. In addition, this study also concludes that the law of pregnant marriage with conditions, namely preceded by repentance and the cleanliness of the uterus, is stronger and more appropriate if applied in Indonesia. For this reason, this study recommends changes to Article 53 of the Compilation of Islamic Law by prioritizing the law of conditional pregnant marriage.