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Several Judges' Considerations in Deciding Marriage

Dispensation Cases

(Case Study at the Rembang Religious Court)

M Nur Kholis

Ahwal Syakhshiyah Study Program, Sekolah Tingggi Agama Islam Al Kamal Rembang, Indonesia

Email : Kholis_jee@yahoo.co.id

Keywords

ABSTRACT

Marriage Dispensation, Judge's

Considerations, Religious Courts

This research discusses the problem of early marriage in

Rembang, with a focus on marriage dispensation letters

submitted to the Rembang Religious Court. Data shows that

there are many cases of marriage dispensation, with 52 cases

resolved in 2016, an average of more than 6 cases per month.

This early marriage is triggered by various factors, including

pregnancy out of wedlock due to uncontrolled relationships.

The parents of both parties agreed to submit a request for

dispensation to the court to allow marriage at an age that

does not meet the provisions of the law. This research uses

various techniques and data sources, including interviews,

primary, secondary, and tertiary data analysis, as well as a

literature study. The collected data was analyzed using

empirical methods. The research results show that early

marriage in Rembang is influenced by cultural, socio-

economic, family environment, social, and psychological

factors. Customs also play a role in the phenomenon of early

marriage.

INTRODUCTION

Marriage is a physical and spiritual bond between a man and a woman as husband and wife to

form a sakinah, mawaaddah wa rahmah family that is blessed by Allah Almighty. Inner and outer bond"

means that the close relationship between husband and wife is not only the outward physical aspect but

also the inner emotional bond.The marriage bond is prescribed by religion not only to justify biological

relations (sex) or not only to obtain offspring, but more than that, namely to build a happy family full of

love, calm the soul, and end with the attainment of inner and outer happiness. So that the various goals

of marriage can be realized, the state has an interest in regulating a regulation regarding marriage. Law

Number 1 of 1974 concerning marriage was born, followed by various technical regulations below it

(Mk, 2010).

Marriage is also something that applies to every creature and absolutely occurs in the lives of

jinn, animals, and plants. As for humans, Allah does not allow them to run wild and indulge in lust, as

happens to animals. However, God has laid down rules that provide rules, safeguarding human honor

and glory.Namely, a Sharia marriage, which turns the relationship between a man and a woman into a

sacred relationship based on willingness, handover, as well as tenderness and affection between the

two. So that with such a marriage, sexual desire will be channeled properly and can maintain the

continuity of offspring, it can protect the honor of women from inappropriate behavior.

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M Nur Kholis

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Marriage law is the earliest law known to humans and is marked by the marriage of Adam and

Eve (Rahmawati, 2015). Then, by experiencing changes here and there, the marriage law was

implemented by the children and grandchildren of Adam and Eve continuously from the past until now.

The marriage laws that have developed to date are the preservation (follow-up) and development of the

laws that God introduced to previous generations of humans. That is why marriage law is a law that is

always actual and necessary for humans (NIM, n.d.).

Rasulullah SAW strongly encouraged his people to get married; even people who were not happy

with marriage were considered not to be in his people. And explained in a hadith. Rasulullah SAW said:

"Indeed, I fast, break the fast, pray, sleep, and marry women. Whoever hates (does not carry out)

marriage means he is not my ummah. This hadith makes it clear that Islam prescribes marriage as a

form of worship (Al-Badry, 2011). A marriage is not just to justify a biological relationship or to produce

offspring, but more than that, namely to build a happy family full of love, calm the soul, and end with the

attainment of inner and outer happiness (Adila, 2020).

Marriages entered into by parties who are not old enough or are still children, known as early

marriages, have pros and cons in society (Falakh, 2023). Reality shows that early marriage is still

common and often occurs in Indonesian society, especially in rural areas (Adhim, 2002). Various

reasons were put forward by perpetrators of early marriage, including economic factors, environmental

influences, or local customs; not being able to refuse a proposal from the groom because they were

worried that it would not be successful (no one would apply again because they had previously rejected

the proposal); the child being considered capable of performing a gawe (carrying out marriages); daily

work; fear of children falling into adultery; and so on (Alam, Basri, & Fikri, 2020).

Marriage law opens up opportunities for early marriage through the court's marriage permit

process (Nasution, 2007). Whether a marriage permit, or what is better known as a marriage

dispensation, is permitted or not really depends on the condition of the applicant, one or both of the

prospective bride and groom, and the considerations of the judges who hear the case in the Religious

Court (Yustisia, 2015). Munakahat jurisprudence normatively allows early marriage. However, the

aspects of benefit and harm must be considered so that early marriage can bear sakinah and mawaddah

wa rahmah fruit (Bisri, Soebahar, & Ulama’i, 2021).

This is in accordance with the words of the Prophet Muhammad SAW from Ibn Mas'ud

radhiyallahu'anhu, who told a hadith (I once heard the Prophet Muhammad SAW say, "O young people,

whoever among you is able, should marry, because marriage will be more subduing eyesight and will

protect your private parts better. And whoever is not yet able should fast, because fasting will actually be

a shield for you" (narrated by Jama'ah). This hadith explains the Prophet's command for young people

who are able to get married as soon as possible, and if you can't afford to get married, mom.

METHODS

The research method is to technically explain the methods used in research. With this, the author

uses empirical writing methods with a socio-cultural juridical approach, etc. The location of this

research was carried out at the Rembang Religious Court by studying documents, interviews, and

Decision Number 0047/Pdt.P/2016/PA.Rbg regarding the issue of marriage dispensation.

RESULTS AND DISCUSSION

In this case, the person who applied for marriage dispensation at the Rembang Religious Court

was the man's parents. The application for marriage dispensation was submitted because the

prospective groom had not yet reached the requirements for marriage, namely 19 years, while the

prospective groom had had sexual relations outside of marriage, resulting in pregnancy for the woman

he was dating (Yustisia, 2015).

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The gestational age has reached 1.5 months or 6 weeks. In order for the baby born in the future

to be a legitimate child, both parents of the man and woman agree to marry by applying for a marriage

dispensation. In this case, the request for dispensation was made by the child's parents at the Rembang

Religious Court (Indonesia, 1990).

Based on the decision of the Rembang Religious Court, the judge granted the petition and

decided to give a marriage dispensation permit to the applicant's child to marry the applicant's child's

future wife (Sustiono, Marzuki, & Ibrahim, 2022). And also ordered the Religious Affairs Office (KUA) of

Rembang District, Rembang District to marry the applicant's child to his future wife.

Several things that were taken into consideration by the Panel of Judges at the Rembang

Religious Court in granting the marriage dispensation request include:

1. Future husband and future wife

2. The applicant's son as future husband stated that he really loved his future wife and did not want

to be separated

3. There is readiness to become a husband and has worked so he is able to support his wife

4. The future wife loves her and does not want to be separated from her future husband because she

is already 1.5 months pregnant

5. The prospective wife will marry on the basis of mutual consent and without coercionn

The existence of a marriage dispensation in the Marriage Law, when viewed from the

perspective of child protection law, revealed that the issue of marriage dispensations for minors has

received widespread public attention and controversy, and this does not seem to touch on the material

aspects of marriage (violations in marriage such as violations of age or violation of requirements), but

places more emphasis on the aspect of deprivation of human rights, especially children's rights to

freedom (Ulwan, 2000).

Marriage at the age of children, seen from the perspective of child protection, is considered an

unlawful act because this act is considered a deprivation of the child's rights. In fact, marriage at the age

of children will have a criminal impact if it contains elements of discrimination, economic and sexual

exploitation, neglect, cruelty, violence and abuse, injustice, and other wrongful treatment, which must

be proven in accordance with applicable laws and regulations (Sufri, Said, & Rauf, 2020). In Islamic law

and customary law, there are no provisions regarding age limits for marriage (Imron, 2015). As soon as

someone enters puberty, he is actually ready to get married. The age of puberty is related to the

fulfillment of the biological duties of a husband and wife. Likewise, in customary law, there is no age

limit for marriage (Nuruddin Amir, 2004).

This age limit for marriage is reaffirmed by the Compilation of Islamic Law (KHI) in Article 15

paragraph (1), namely, for the benefit of the family and household, marriage may only be carried out by

prospective brides and grooms who have reached the age specified in Article 7 of Law Number 1 of 1974,

namely that the prospective husband must be at least 19 years old and the prospective wife must be at

least 16 years old. Article 7 of Law Number 1 of 1974 concerning Marriage, in paragraph (1), reads

"Marriage is only permitted if the man has reached the age of 19 (nineteen) years and the woman has

reached the age of 16 (sixteen) years".When there is a deviation from Article 7 paragraph (1), then what

is used is Article 7 paragraph (2), which reads: "In the event of a deviation from paragraph (1) of this

article, you can ask for dispensation from the court or other official appointed by both the parents of the

man and the woman (Sustiono et al., 2022).

Underage marriages can be prevented and annulled. Article 60 of the KHI and also Articles 13 to

28 of the Marriage Law state that prevention of marriage can be carried out if the prospective husband

or prospective wife does not fulfill the requirements for carrying out a marriage according to Islamic

law and legislation (Sugiarto, 2021). Meanwhile, among the conditions for marriage according to Islamic

law is that the prospective bride and groom have reached puberty and are mentally and physically

healthy (Mardani, 2011)(Hatari, 2021).

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Apart from that, there are six principles or principles of marriage that are implied by Law

Number 1 of 1974, including the principle of maturity of the prospective bride and groom. This means

that every prospective husband and prospective wife who wish to enter into a marriage contract must

be truly physically and psychologically mature.The wisdom of enshrining marriage is to promote

offspring, maintain one's lineage (status), save society from moral decadence, as a medium for forming

an ideal household and educating children, freeing society from various diseases, and achieving mental

and spiritual peace. Marriage is natural and can be achieved at the age where the prospective bride and

groom have perfected their minds and are ready to carry out the reproductive process.Underage

marriage by a couple who has not met the marriage age limit is essentially a marriage carried out by

someone at the age of a child. This is as confirmed in Article 1 paragraph 1 of Law No. 23 of 2002

concerning Child Protection (Nomor, 23AD), which states that a child is someone who is not yet 18

(eighteen) years old, including children who are still in the womb (Syarifuddin, 2006).

The problem of marriage among underage children is an issue that always surfaces, along with

the emergence of various factors behind it. One of the factors is pregnancy out of wedlock, so the path

often taken by parents is to apply for a marriage dispensation through the religious court.

These reasons, to some extent, influence the attitude of judges in court or other appointed

officials in making decisions to grant marriage dispensations to the parties. Meanwhile, every child who

is not yet 18 years old must receive protection for their children's rights and welfare as mandated by

the child protection law (Thalib, 2018).

Based on the results of interviews with Mr. Dr. Sutiyo M.H., the factors that led to the granting

of requests for marriage dispensation for minors by religious court judges were more due to the

condition of the woman being pregnant out of wedlock. Apart from that, Mr. Sutiyo further emphasized

that the judge's conscience and kindness can be factors in granting marriage dispensation for children

in cases of children being pregnant out of wedlock.In the case of Determination Number

0047/Pdt.P/2016/PA.Rbg, the judge granted the request for a marriage dispensation based on the

hadith rule that avoiding harm (damage) takes priority over attracting benefit (goodness). This means

that the judge made this decision to avoid further damage that would be caused in the future.According

to the author, juridically, the judge was right to grant the marriage dispensation request because the

legal basis for making this decision was in accordance with the Marriage Law, which allows a minor to

enter into a marriage by applying for a marriage dispensation (Article 7, paragraph 2).

Even though the law determines the age of marriage at 16 years for women and 18 years for

men, on the other hand, religious courts are given the authority to dispensate marriage as a solution to

overcome greater damage. However, here, the religious courts do not make it easy for minors to

marry.In the case of marriage dispensation resulting from a woman becoming pregnant out of wedlock,

in conditions like this, the author is of the opinion that marriage dispensation is the only way that must

be taken as a form of protection and prevention against the greater harm (damage) that it will cause.

This also includes the granting of the request in the case of Determination Number

0047/Pdt.P/2016/PA.Rbg, as a protection for the child who will be born as well as the psychological

condition of both the bride and groom and the family as a whole.

In this case, the author believes that there is a contradiction between the child protection law

and the marriage law regarding the marriage of underage children. For this reason, the existence of

contradictions in the articles of the two laws requires deep accuracy for a judge in finding a common

ground in resolving marriage dispensations for minors, especially for cases of pregnancy out of wedlock.

Seeing this, in essence, the child protection law can still be used as material in deciding cases related to

the age of marriage, but Law Number 1 of 1974 concerning marriage is still the main basis and a

derivative of it, namely the compilation of Islamic law (Indonesia & Bab, 1974)(Suma, 2004).

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And it also cannot rule out the possibility of a marriage dispensation, which also has a juridical

basis in legislation. It should also be noted that the marriage dispensation is a special rule, while the

child protection law, specifically Article 26 paragraph (1) letter c, which prohibits marriage for a child

who has not reached the age of eighteen, is a general rule.

However, this age limit for marriage is reaffirmed by the Compilation of Islamic Law (KHI) in

Article 15 paragraph (1), namely, "For the benefit of the family and household, marriage may only be

carried out by prospective brides and grooms who have reached the age specified in Article 7 of Law

Number 1 in 1974, namely that the prospective husband must be at least 19 years old and the

prospective wife must be at least 16 years old." And Article 7 of Law Number 1 of 1974 concerning

marriage in paragraph (1) reads "Marriage is only permitted if the man has reached the age of 19

(nineteen) years and the woman has reached the age of 16 (sixteen) years". When there is a deviation

from Article 7 paragraph (1), then what is used is Article 7 paragraph (2), which reads: "In the event of

a deviation from paragraph (1) of this article, you can ask for dispensation from the court or other

official appointed by both the parents of the man and the woman."

CONCLUSION

Based on the analysis provided above, it can be concluded that according to Law Number 1 of 1974

concerning Marriage, Article 7 paragraph (2) in its wording provides an opportunity for parents to

marry their children at an early age and also serves as the basis for judges to decide on marriage

dispensation cases. The practice of early marriage in 2016 in Rembang, based on data from the Religious

Court of Rembang from January to August, amounted to 52 cases. Among the available data, early

pregnancy is the most common reason for early marriages in the Religious Court of Rembang.

Dispensation for marriage of underage children in Case Determination Number

0047/Pdt.P/2016/PA.Rbg with the reason of pregnancy granted by the religious court in that case aims

to sever the bond of adultery, alleviate pressure or stress, and give legal authority to the child born from

such a union. However, behind all this, judges still firmly adhere to the trial facts. Looking at the data

from the Religious Court of Rembang from 2012 to 2015, there was only one divorce case due to early

marriage. With this, the author believes that both negative and positive effects still exist, but preventive

measures should still be taken despite the opportunity for early marriage provided by Article 7

paragraph (2) of the Marriage Law. The government and society continue to work together to neutralize

the widespread occurrence of early marriages.

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