Absent husband between tradition and modernity : examining the implementation of Islamic family law in contemporary Indonesia

Abstract

This thesis examines the status of absent husbands in contemporary Indonesia from a socio-legal perspective, which demonstrates the dynamics in determining the law between classical Islamic law and the modern legal system on the implementation of family law that occurred when applied in a modern context. This research with a socio-legal approach employed an integrated method between normative juridical legal research by obtaining court decisions from the last five years (2020-2024) to make it relevant to current conditions and statutory documents as primary data and empirical juridical research by conducting an in-depth interview, consisting of an abandoned wife of the absent husband and the lawyer who dealt with this case. This study presents two key arguments: First, the Compilation of Islamic Law (KHI) in Indonesia, intended to codify and unify Islamic law, has not adequately addressed the issue of absent husbands, leading to varied judicial interpretations and potential legal injustice, unlike the clear guidelines provided by classical Islamic jurisprudence. Second, the common waiting period of two years for an abandoned wife to file for divorce in absent husband cases appears to be related to the form of "taklik talak" (a unilateral divorce declaration by the husband) that has existed since the Dutch colonial era. The research also highlights the significantly higher number of "ghaib" cases (where the wife files for divorce due to the husband's disappearance) compared to "mafqud" cases (where the court determines the legal status of a missing person) in Indonesia over the last five years, with a 10% increase in divorce rates during 2020-2021 due to the economic impact of the COVID-19 pandemic. This study contributes to the scholarly discourse on the evolving nature of Islamic family law in the face of modern challenges, emphasizing the need for a more holistic and comprehensive approach that combines formal legal requirements with a deeper understanding of the underlying social and ethical issues to achieve greater equality and justice for abandoned wives in absent husband cases.