al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52
ISSN: 1907-591X.
E-ISSN: 2442-3084
DOI: https://doi.
org/10.
19105/al-lhkam.
The Interplay of Fiqh.
Adat, and State Marriage Law: Shaping Legal Consciousness of Sasak Women Jumarim Universitas Islam Negeri Mataram.
Mataram.
Indonesia email: jumarim@uinmataram.
Ilyya Muhsin Universitas Islam Negeri Salatiga.
Salatiga.
Indonesia email: ilyya_muhsin@uinsalatiga.
Muhammad Chairul Huda Universitas Islam Negeri Salatiga.
Salatiga.
Indonesia email: choirulhuda@iainsalatiga.
Article history: Received: September 25, 2023.
Accepted: January 05, 2024.
Published: June 15, 2024 Abstract:
Sasak women grapple with a legal conundrum stemming from the coexistence of multiple marriage legal frameworks encompassing fiqh, adat, and state law.
This intricate legal pluralism dynamically shapes the legal consciousness of Sasak women as they navigate the selection of legal avenues to secure legality and address their marital legal challenges.
This study pursues two primary objectives: firstly, to examine the intricate interplay among fiqh, adat, and state marriage law concerning the provision of legal certainty and protection for Sasak secondly, to probe into the manifestations of legal consciousness arising from the plural marriage legal Data were collected through document analysis, literature review, and in-depth interviews with selected Sasak The findings illuminate a dynamic interplay among fiqh, adat, and state marriage law across various marital facets, including prenuptial considerations, minimum marriage age.
Author correspondence email: jumarim@uinmataram.
Available online at: http://ejournal.
id/index.
php/alihkam/ Copyright .
2024 by Al-Ihkam.
Jurnal Hukum dan Pranata Sosial Jumarim, et al.
marriage prerequisites and pillars, marriage contracts, residency, polygamy, divorce, and reconciliation.
Moreover, the study identifies three distinct forms of legal consciousness emerging among Sasak women: Aobefore the lawAo when confronting fiqh.
Aowith the lawAo when embracing formal legal mechanisms to address marital issues, and Aoagainst the lawAo when eschewing formal legal provisions.
In conclusion, state marriage laws are more progressive in providing legal certainty and protection for women but lacking criminal sanctions/fines weakens their position compared to religious law .
and customs .
Ultimately, this shapes the legal consciousness of Sasak women in diverse ways.
Keywords:
Adat.
Fiqh Munakahat.
Legal Consciousness.
State Marriage Law.
Sasak Women Introduction Mega .
is a Sasak woman who was divorced via telephone by her husband.
Ali, a migrant worker in Saudi Arabia.
She and her son were compelled to leave their domicile and return to her parentAos However, the challenges faced by Mega did not end there.
She was subsequently confronted with a series of difficulties as a result of her marriage and divorce.
Because her marriage was conducted unregistered .
ikah sirr.
1 when she was merely 18.
Mega and her former spouse lacked a marriage certificate which is a requirement to obtain a family card.
Furthermore, her son does not yet have a birth certificate because a family card is required to obtain a birth certificate.
Additionally.
MegaAos status has become uncertain.
Islamic law .
and customary law .
classify her as a widow, whereas positive law .
tate marriage la.
considers her to be a woman who has never been married because her marriage was not 1 This kind of marriage is valid according to fiqh.
however, it is not legal according to the state marriage law because it is conducted without the presence of marriage registrar from Religious Affairs Office (Kantor Urusan Agama: KUA).
Sasak people normally perform nikah sirri when the future bride and groom are under-aged or do not possess divorce certificate of previous marriage from religious courts (Pengadilan Agama: PA).
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women recorded at the Religious Affair Offices (Kantor Urusan Agama: KUA).
Consequently, in positive law, she is considered a maiden.
MegaAos marriage and divorce is a typical Sasak womenAos experience on the Island of Lombok where Muslim women frequently marry at a young age, get divorced, and remarry.
Around 70 percent of marriages in this context are legalized only according to fiqh and adat without being officially recorded by the government.
2 Although these marriages hold legal significance within their communities, they deprive women of their rights granted by the state marriage laws.
For example, state marriage law granted women the right for a share of joint property in case of divorce.
3 However, the right is easily violated by men due to unregistered marriage.
Hence, the state marriage law, which is intended to protect womenAos rights in marriage, cannot be upheld due to the provisions of fiqh and adat.
4 Exploring the legal consciousness of Sasak women living in the context of legal marriage pluralism in Lombok can therefore shed light on how Indonesian women understand dan perceive marriage legal pluralism in their daily life contexts.
Legal pluralism arises when diverse legal frameworks interact and function within a defined territory, community, ethnicity, or Historically rooted in colonialism, this complexity emerges as colonial powers imposed their legal systems upon new territories, thereby overlaying preexisting legal structures.
In Indonesia, legal pluralism encompasses state law, religious law, and customary law.
Despite the recent emergence of state law, its formal nature diminishes the prominence of religious and customary legal practices, relegating them to informal status.
Notably, legal pluralism predominantly manifests within the realm of family law, particularly concerning marriage.
5 Adat is upheld as long as it does not conflict Maria Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce Desire, https://doi.
org/10.
4324/9781315178943.
3 Republik Indonesia.
AuUndang-Undang Nomor 1 Tahun 1974 tentang PerkawinanAy .
4 Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
5 Alkhanif.
AuWomen.
Islam, and Modern Family Construction in the Perspectives of Legal Pluralism in Indonesia,Ay PETITA: Jurnal Kajian Ilmu Hukum dan Syariah 4, no.
, https://doi.
org/10.
22373/petita.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
with fiqh, and fiqh will persist if reinforced by state law and does not contradict it.
Legally, state marriage law is regarded as a formal or positive law that is compulsory and binding for all citizens, while the other two marriage laws, adat and fiqh, are considered informal.
Several scholars have examined the complex issue of Sasak women and marriage legal pluralism, including Islamic jurisprudence .
, customary practices .
, and state marriage law.
PlattAos6 research highlighted that around 70% of marriages in Lombok are solely recognized under fiqh but remain unregistered by the state.
This discrepancy is largely attributed to the prevalence of merariq,7 a practice that results in many underage marriages.
Additionally, studies by Sugitanata et al.
8 have revealed other discriminatory customs within Sasak society, such as kawin maghrib .
orced marriag.
, which often subjects Sasak women to long-term trauma in the guise of preserving the morality of youth.
Fiqh and adat are found to be two main factors in legalizing the practice of kawin maghrib.
Nimah9 explores the consequences faced by Sasak women following unilateral divorces .
instigated by men, influenced by patriarchal fiqh and adat.
She delineates four infringements upon Sasak womenAos rights, including unpaid mutAoah .
ivorce compensatio.
, delayed dowry payments, deprivation of their portion of marital assets, and uncertainty surrounding marital status.
Nasir10 scrutinizes the provision of litigated divorce .
within state marriage law as a mode of resistance among Sasak women against unilateral divorce and polygamy without wivesAo consent, two practices endorsed by fiqh and adat.
Nasir contends that 6 Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
7 Merariq is a distinct tradition within marriage ceremonies, requiring a man to abscond with or take the girl before the wedding ritual commences.
8 Arif Sugitanata et al.
AuViolation of WomenAos Rights: the Kawin Magrib Tradition of the Sasak Muslim Community in Lombok.
Indonesia,Ay Journal of Islamic Law 4, no.
, https://doi.
org/10.
24260/jil.
9 Zulfatun Nimah.
AuThe Violation on WomenAos Rights in the Unilateral Divorce in Sasak Community from A Feminist Legal Theory,Ay AL-IHKAM: Jurnal Hukum & Pranata Sosial 13, no.
: 25Ae48, https://doi.
org/10.
19105/allhkam.
10 Mohamad Abdun Nasir.
AuIslamic Law and Paradox of Domination and Resistance: WomenAos Judicial Divorce in Lombok.
Indonesia,Ay Asian Journal of Social Science 44, no.
1Ae2 .
, https://doi.
org/10.
1163/15685314-04401006.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women the existence of state marriage laws providing legal safeguards for women facilitates their resistance.
Nonetheless, the enduring sway of fiqh and adat in Sasak community perpetuates male dominance.
This article diverges from the prior studies which predominantly focused on the repercussions endured by Sasak women due to marriage legal pluralism by exploring the interplay of these three legal frameworks throughout various facets and stages of Sasak marriages.
Additionally, it examines how this interaction contributes to shaping the legal consciousness of Sasak women.
Consequently, this study endeavors to address two fundamental research inquiries.
Firstly, to examine the intricate interplay between fiqh, adat, and state marriage law in providing legal certainty and protection for Sasak women.
secondly, to investigate the manifestation of legal consciousness arising from the pluralistic marriage law framework.
We believe that the emergence of state policies regarding marriage law aims to provide protection for women from gender-biased norms found in informal laws by incorporating affirmative rules and ensuring their strict, definitive, and binding enforcement for all parties involved.
Methods This research adopts a normative-empirical legal research approach, facilitating an in-depth exploration of individualsAo experiences, perceptions, and interpretations of legal pluralism and legal consciousness.
Data collection involves document analysis and in-depth interviews.
Document analysis entails examining legal documents and related materials to provide additional context and support empirical findings interpretation.
Furthermore, in-depth interviews were conducted with participants from varied backgrounds, including married and divorced Sasak women, legal professionals, and women activists, enabling the exploration of diverse perspectives on legal pluralism and legal consciousness.
Thematic analysis is then employed to identify patterns, themes, and categories within the qualitative data obtained from document analysis and in-depth interviews.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
Result and Discussion The Interplay of Fiqh.
Adat, and State Marriage Law Legal pluralism in Indonesia is a phenomenon due to the influence of colonialism.
The Dutch introduced their legal system while adding it to existing layers of customary and religious law.
After gaining independence.
Indonesia adopted the colonial legal system as its national and formal legal and justice system.
Afterward.
Islamic law and customary law have developed into informal legal systems that exist outside of the state.
Meanwhile, laws inherited from the Dutch have become formal laws enforced by the state apparatus.
Although positive law has been adopted by the state, in practice, the community still uses fiqh and adat as two systems of justice and legality outside that of the state.
12 Legal disputes, particularly those related to family civil matters such as marriage and inheritance, are typically resolved by the community through these informal legal systems.
13 In this context, the law should be aspirational and democratic.
14 Hence, the existence of three legal systems in society provides a choice of legal remedies and at the same time, can also create legal confusion and ambiguity.
15 In this section, we discuss the legal certainty, legal protection, the legality of marriage in Sasak society amidst the dynamic interplay between fiqh, adat, and state marriage law.
Table 1 below provides a summary of the space and form of interaction between these three laws.
11 Muhammad Sodiq.
AuDualisme Hukum di Indonesia: Kajian tentang Peraturan Pencatatan Nikah dalam Perundang-Undangan,Ay Al-Ahwal: Jurnal Hukum Keluarga Islam 7, no.
: 109, https://doi.
org/10.
14421/ahwal.
Zezen Zaenal Mutaqin.
AuCulture.
Islamic Feminism, and the Quest for Legal Reform in Indonesia,Ay Asian Journal of WomenAos Studies 24, no.
: 423Ae45, https://doi.
org/10.
1080/12259276.
12 Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
13 Platt.
14 Widya Sari.
Muhammad Arif, and Elkhairati.
AuPemikiran Ibrahim Hosen tentang Konsep Pernikahan dan Kontribusinya terhadap Pembaruan Hukum Perkawinan di Indonesia,Ay Al-Istinbath: Jurnal Hukum Islam 6, no.
: 127Ae44, https://doi.
org/10.
29240/jhi.
15 Yuliandri et al.
AuShifting from Legal Pluralism to Legal Syncretism in MultiCultural Indonesia,Ay ISVS E-Journal 10, no.
: 182Ae92.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women Table 1.
The point of the interplay among fiqh, adat, and marriage law Aspects Adat Fiqh State Marriage Law Method for Nuptial age Merariq Khitbah Merariq17 Puberty Marriage Following the provision of fiqh and pisuke19 Prenuptial Polygamy Not available The bride and shighar/ijab qabul, wali, and two male witnesses Takliq talaq Post-marital Women must move to menAos place after Following fiqh Following the provision of each religion16 .
qil Men are only allowed to have and must be able Not mentioned The minimum age is 19 years old, and prospective spouses under 21 years old must obtain permission .
18 Following the provisions of fiqh and must be attended and recorded by a marriage registrar from KUA.
Prenuptial contract21 Following fiqh but providing stricter requirement, like approval from current wife or wives before requesting permission for polygamy to the religious court22 Based on the agreement between both spouses23 16 The Indonesian Marriage Law.
No.
1 of 1974.
Article 2.
Paragraphs 1 and 2 17 Since Merariq is spontaneous, it can involve either children or adults at any 18 The Indonesian Marriage Law.
No.
1 of 1974.
Article 6 .
Paragraph 2 and Article 7.
Paragraph 1 19 AuPisukeAy denotes a financial or material offering from the groomAos family to the brideAos family following the wedding ritual within the Sasak practice.
Pisuke is not 20 The Indonesian Marriage Law.
No.
1 of 1974.
Article 6 Ae 12 21 Article 9 22 Article 3, 4, and 5 23 Article 32.
Paragraph 2 al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
Divorce Reconciliation Beseang and nyerorot/nyenger Following fiqh Talaq/KhuluAo Applicable during .
aiting perio.
Either husbands or wives can file divorce to court24 Must be registered to the KUA during the iddah Table 1 depicts how classic Islamic jurisprudence .
, customary practices .
, and state marriage laws intersect and interplay at various stages of marriage.
Both state marriage law and fiqh follow the same method of marriage, which is khitbah .
arriage 26 Accepting fiqh provisions into the national marriage law shows that state law builds a cooperative relationship with Islamic 27 In the khitbah, the families of the brides and grooms meet to discuss the details of the marriage.
At this stage, both state marriage law and fiqh provide certainty to women from the customary system, namely merariq.
However, when the bride-to-be is rushed and brought to the groomAos house via merariq, she has no room for negotiation and no bargaining position at all.
28 Negotiations for marriage are conducted solely by male family members.
On the other hand, khitbah involves pre-agreement on the date and time of the marriage contract, while in merariq, the agreement is discussed after the bride has been taken away.
The negotiation process can take several days or even weeks, during which the date for akad nikah remains uncertain.
these circumstances, women are victimized because they are required to live in the household of the future groomAos family who is not yet their own.
During this period of negotiation, the bride-to-be is often expected to perform various domestic chores in the manAos house.
This period is seen as an orientation to determine whether the prospective bride is capable of taking care of the household.
24 The Indonesian Marriage Law.
No.
1 of 1974.
Article 38, 39, dan 40 25 Article 10 and 11 26 Khitbah is an effort towards the realization of matchmaking between men and women 27 Mohamad Abdun Nasir.
AuNegotiating Muslim Interfaith Marriage in Indonesia: Integration and Conflict in Islamic Law,Ay Mazahib Jurnal Pemikiran Hukum Islam 21, no.
: 155Ae86, https://doi.
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28 Syafruddin.
Perlawanan Perempuan Sasak: Perspektif Femenisme (Mataram:
Mataram University Press, 2.
Syafruddin et al.
AuOne-Party Divorce: The Devaluation of Sasak Women in Eastern Indonesia,Ay Przestrzen Spoleczna 22, no.
: 114Ae32.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women The dynamic interaction among these three legal norms regarding marriage also extends to the minimum age limit for prospective spouses.
The Positive Law in Indonesia in determining adulthood is obtained from an a-contrario interpretation which departs from the meaning of the word immature in Article 330 BW.
State marriage laws explicitly state that the minimum age for both prospective spouses is 19 years old, with the additional provision that for spouses under 21 years old, parental or guardian consent is 30 Setting the marriage age limit in marriage laws is one effort to prevent child marriages, which are still prevalent, especially in Lombok.
On the other hand, fiqh provides a very general limit, namely reaching puberty .
kil balig.
The concept of akil baligh, according to fiqh, is determined by physical and psychological conditions that turn out to allow child marriages to occur.
Sasak customary law, meanwhile, is more ambiguous in setting age limits because there are no specific provisions regarding the minimum age limit in merariq.
If the female spouse is willing to be eloped, she is considered mature enough for marriage.
31 This is why merariq is seen as a significant factor contributing to the high prevalence of child marriages among the Sasak people.
32 In terms of age limits for marriage, state marriage laws provide more precise provisions, although in special cases, they also allow for dispensation, such as in marriages preceded by pregnancy out of wedlock.
Dispensation means the granting of permission for exemption from an 29 Ibnu Amin et al.
AuThe Concept of Baligh Perspective of Fiqh and Positive Law,Ay Al-Istinbath: Jurnal Hukum Islam 7, no.
: 441Ae66, https://doi.
org/10.
29240/jhi.
30 Article 7 of Law No.
1 of 1974, reinforced by Law No.
19 of 2019.
31 Maria Platt.
AuAoItAos Already Gone Too FarAo: Women and the Transition into Marriage in Lombok.
Indonesia,Ay The Asia Pacific Journal of Anthropology 13, no.
: 76Ae90, https://doi.
org/10.
1080/14442213.
Sarmini.
Ulin Nadiroh, and Muhammad Saeun Fahmi.
AuReduce Conflicts in Traditional Merariq Traditions through the Long Tradition of the Tribal People of Sasak Lombok,Ay Journal of Physics:
Conference Series 953, no.
: 012186, https://doi.
org/10.
1088/17426596/953/1/012186.
Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
32 Maila D.
Rahiem.
AuCovid-19 and the Surge of Child Marriages: A Phenomenon in Nusa Tenggara Barat.
Indonesia,Ay Child Abuse and Neglect 118, no.
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1016/j.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
obligation or prohibition.
33 It is this dispensation space that is often used as a negotiation space for parties upholding adat and fiqh but still wanting to register marriages.
The spirit of ensuring legal certainty for women within marriage by the state is also evident in the provisions of marriage registration within state marriage law.
35 Due to this provision, women are positioned as rational-legal subjects who are eligible to make their own decision.
36 On the other hand, in the provisions of fiqh and adat, women are not positioned as independent subjects because their agency is represented by men, namely the guardian and two male marriage witnesses.
Provisions regarding the necessity of a marriage guardian and marriage witnesses can be seen as a strong manifestation of patriarchy within fiqh and adat.
Provisions regarding the necessity of marriage registration indeed aim to ensure that women in formal marital relationships are legally protected.
Although the obligation to register marriages creates numerous obstacles in the community.
On the one hand, it appears that people's understanding of the importance of registering their marriage has not taken root.
Although state marriage law asserts that every Muslim marriage in Indonesia must be registered at the KUA, it also states 33 Muhammad Fauzinudin Faiz.
Zezen Zainul Ali, and Muhammad Taufiq.
AuUnderage Widows and Widowers before the Law: Problem.
Contestation and Legal Certainty in Marriage Dispensation,Ay Juris: Jurnal Ilmiah Syariah 22, no.
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34 Salmah Mursyid and Nasruddin Yusuf.
AuChanges in Marriage Age Limits and Marriage Dispensations: A Study of Causes and Impacts on the Religious Courts North Sulawesi,Ay Samarah .
975Ae96, https://doi.
org/10.
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35 Eva Nisa.
AuThe Bureaucratization of Muslim Marriage in Indonesia,Ay Journal of Law and Religion 33 .
: 1Ae19, https://doi.
org/10.
1017/jlr.
Euis Nurlaelawati.
AuPernikahan Tanpa Pencatatan: Isbat Nikah Sebuah Solusi?,Ay Musywa Jurnal Studi Gender Islam .
https://doi.
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14421/musawa.
36 Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
37 Nurlaelawati.
AuPernikahan Tanpa Pencatatan: Isbat Nikah Sebuah Solusi?Ay 38 Salma.
Hasanatul Wahida, and Muhammad Adib Bin Samsudin.
AuIgnoring Family Law Administrative Procedure: Falsifying Death of Spouses for the Registration of New Marriage in Lengayang Muslim Community,Ay Al-Ahwal 15, no.
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al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women that marriages are considered valid when conducted according to the respective religious customs and procedures.
This provision creates a legal loophole for proponents of fiqh to argue that as long as a Muslim marriage is conducted according to fiqh, it remains valid even without registration by KUA.
This ambiguity is often used as justification to defy marriage registration requirements by the community.
In Lombok, marriages without KUA registration are quite common, with one driving factor being the practice of merariq.
Although merariq involves children.
Sasak people normally still proceed with the marriage according to fiqh without going through KUA registration.
Here, these three marriage norms interact to determine the validity and legality of marriages within Sasak society, where fiqh and adat often prevail.
Fiqh and adat concerned about the validity meanwhile state marriage law upholds the idea of validity and legality before the state law.
The progressive nature of state marriage law in ensuring legal certainty within marriage is also evident in its provisions regarding prenuptial agreements.
The concept of prenuptial agreements is uncommon in Eastern cultures, including Indonesia.
However, their existence can protect women from domestic violence and ensure that womenAos rights are upheld in marriage.
Adat Sasak does not recognize prenuptial agreements, focusing solely on the dowry before marriage.
Meanwhile, fiqh introduces the concept of taqlik talaq, but there are differing opinions among fiqh scholars regarding this provision.
Although the Indonesian Compilation of Islamic Law (Kompilasi Hukum Islam: KHI)39 acknowledges the existence of talik talaq, it is not commonly practiced in society.
Therefore, the inclusion of prenuptial agreements in state marriage law can be seen as an effort to provide legal certainty and protection for women within marriage.
Polygamy, meanwhile, presents a complex issue when considering the interplay of fiqh, adat, and state marriage law in the context of womenAos rights protection and fulfillment.
The legalization of polygamy by fiqh often leads to accusations of sexist Islamic teachings towards women.
40 Knowing that rights and obligations are 39 Articles 45 through 52 of the Compilation of Islamic Law (Kompilasi Hukum Islam: KHI).
40 Atun Wardatun and Bianca J.
Smith.
AuWoman-Initiated Divorce and Feminist Fiqh in Indonesia: Narrating Male Acts of Nushz in Marriage,Ay Ulumuna 24, 2 .
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al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
related to a person's behavior, it is clear that the concept of rights and obligations is an ethical concept, so this definition also strengthens the position of fiqh which is full of religious ethics and is not always identical to legal language in the sense of laws.
41 States attempting to adopt modern concepts, including womenAos protection, are faced with a dilemma: whether to prohibit polygamy to accommodate modern demands or permit it to accommodate Islamic requirements.
42 State marriage law opts for a middle ground by allowing polygamy according to fiqh and adat, yet it imposes administrative requirements that must be met by the male spouse.
While fiqh only requires a man wishing to practice polygamy to be fair, this condition is highly subjective as it relies on the manAos self-assessment of his capacity.
In contrast, state marriage law sets clearer criteria, stipulating that every Muslim man seeking polygamy must obtain written consent from his existing wife.
44 Additionally, state marriage law mandates that men seeking polygamy must provide strong reasons for their request.
Due to these provisions, many polygamous practices remain unregistered in Lombok, where marriages are conducted solely according to fiqh and adat without formal registration.
45 This situation raises new issues as many husbands may be legally 41 Syarial Dedi.
AuUshul Fiqih Menurut Paradigma Filsafat Ilmu (Kajian Ontologi.
Epistemologi, dan Aksiolog.
,Ay Al-Istinbath: Jurnal Hukum Islam 5, no.
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42 Jeremy Menchik.
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Suci Flambonita.
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Mutaqin.
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Islamic Feminism, and the Quest for Legal Reform in Indonesia.
Ay 43 Bianca J.
Smith.
AuStealing Women.
Stealing Men: Co-Creating Cultures of Polygamy in a Pesantren Community in Eastern Indonesia,Ay Journal of International WomenAos Studies 15, no.
: 118Ae35, https://vc.
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Theresia Dyah Wirastri and Stijn Cornelis van Huis.
AuThe Second Wife: Ambivalences towards State Regulation of Polygamy in Indonesia,Ay The Journal of Legal Pluralism and Unofficial Law .
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44 Articles 4 through 5 of Law No.
1 of 1974.
45 Smith.
AuStealing Women.
Stealing Men: Co-Creating Cultures of Polygamy in a Pesantren Community in Eastern IndonesiaAy.
Sarmini.
Nadiroh, and Fahmi.
AuReduce Conflicts in Traditional Merariq Traditions through the Long Tradition of the Tribal People of Sasak LombokAy.
Syafruddin et al.
AuOne-Party Divorce.
Ay al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women registered with only one wife while, in reality, they have multiple The legal consequences of this discrepancy are not only felt by the spouses but also by their children in the future.
Divorce and reconciliation are two other aspects of marriage where the three laws of marriage Ae fiqh, adat, and state marriage law Ae interact dynamically, shaping the experiences, access, opinions, and perceptions of Sasak women regarding the laws.
Fiqh governs the termination of marriage through talaq, which is the prerogative right of the husband.
47 In classical fiqh, the majority of scholars are of the opinion that the husband has the absolute right to divorce, therefore whenever and wherever a husband wants to divorce his wife, whether there are witnesses or not, whether there is a reason or not, the divorce is valid.
In fact, some scholars say that even a divorce given by a husband who is drunk is valid.
48 The wife cannot initiate talaq, but she can request her husband to divorce her through khuluAo with the obligation to pay iwadh.
49 Fiqh also rigorously outlines the conditions and provisions of talaq and khuluAo .
itigated divorce.
Sasak adat law, on the other hand, adopts the fiqh provision of talaq, known as seang.
50 Similar to talaq in fiqh, seang is also the prerogative right of the husband.
The wife can only request seang51 from her husband.
The main difference between adat and fiqh is that customary law lacks the khuluAo mechanism.
Consequently.
Sasak women are significantly disadvantaged under customary law.
However, in Sasak marriages, the practice of nyenger .
o sul.
and 46 Nisa.
AuThe Bureaucratization of Muslim Marriage in IndonesiaAy.
Platt.
Marriage.
Gender and Islam in Indonesia: Women Negotiating Informal Marriage.
Divorce and Desire.
47 Mursyid Djawas et al.
AuCreating Family Resilience in Indonesia: A Study of AoMarriage GuidanceAo Program in Aceh and South Sumatera,Ay Al-Ihkam: Jurnal Hukum dan Pranata Sosial 17, no.
, https://doi.
org/10.
19105/AL-LHKAM.
V17I1.
48 Musda Asmara and Reti Andira.
AuUrgensi Talak di Depan Sidang Pengadilan Perspektif Maslahah Mursalah,Ay Al-Istinbath : Jurnal Hukum Islam 3, no.
: 207, https://doi.
org/10.
29240/jhi.
49 Abdul Wahid and Atun Wardatun.
AuListening to EveryoneAos Voice: The Contested Rights of Muslim Marriage Practices in Eastern Indonesia,Ay Global Journal Al-Thaqafah 10, no.
: 47Ae57, https://doi.
org/10.
7187/gjat122020-6.
Wardatun and Smith.
AuWoman-Initiated Divorce and Feminist Fiqh in Indonesia: Narrating Male Acts of Nushz in Marriage.
Ay 50 Syafruddin.
Perlawanan Perempuan Sasak: Perspektif Femenisme.
51 Seang literally can be translated as divorce al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
o escap.
52 is known, which Sasak women can use as a form of resistance when in an unhealthy marital situation.
53 Although existing as a practice, nyenger, and nyerorot are highly taboo in Sasak 54 Parents of women usually refuse to accept and protect their daughters who engage in nyenger and nyerorot against their husbands.
In many cases, the parents of women will personally return their daughters to their husbands.
Hence, in providing legal certainty to women in divorce, fiqh is more progressive than customary law.
The state marriage law, meanwhile, reinforces fiqh provisions by introducing more affirmative requirements, namely obtaining written consent from the legitimate wife and a consent from the religious The interaction among fiqh, adat, and state marriage law is evident throughout various aspects and stages of Sasak marital Customary norms are often parallel to fiqh regulations, while state marriage law, employing a positive legal approach, reinforces fiqh principles through formal legal mechanisms such as court rulings and official documentation and registration.
Despite advancements in state marriage law aimed at enhancing legal certainty for women within marriages.
Sasak society predominantly relies on fiqh and adat, particularly regarding aspects like the age of marriage, divorce, polygamy, and reconciliation.
This reliance contributes to elevated incidences of child marriage, extrajudicial unilateral divorces .
, and polygamy without explicit consent from religious courts and the legal wives.
Sasak WomenAos Legal Consciousness in the Context of Marriage Legal Pluralism The legal pluralism in Lombok significantly shapes the legal consciousness of Sasak women.
This plurality of legal systems creates different images and influences within the communities where it 52 These two terms can be translated as an escape from the husbandAos house.
However.
Sasak women practicing this will be discredited by society even by their 53 Syafruddin.
Perlawanan Perempuan Sasak: Perspektif Femenisme.
54 Nurmala Fahriyanti.
AuGugat Cerai: Membebaskan Prempuan dari Penderitaan,Ay QAWWAM .
101Ae22, https://doi.
org/10.
20414/qawwam.
55 Articles 4 through 5 of Law No.
1 of 1974.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women 56 For instance, fiqh presents a distinct image and influence on women compared to the image and influence arising from marriage laws.
Similarly, state marriage law carries different perceptions and impacts on Sasak women compared to adat.
Therefore, within the context of legal pluralism, legal consciousness greatly aids women in understanding and making a choice among existing legal systems.
This section will outline and discuss our major findings regarding the forms of legal consciousness emerging among Sasak women due to the legal pluralism in marriage.
According to Ewick & Shilbey, there are three forms of legal consciousness that actors Ae in this research context.
Sasak women Ae may develop to understand the prevailing legal phenomena: Aobefore the law,Ao Aowith the law,Ao and Aoagainst the law.
Ao58 We utilize these three categories of legal consciousness to classify the variety of legal consciousness developed by Sasak women in the context of prevailing legal pluralism in Lombok.
Those with legal consciousness Aobefore the law,Ao are seeing the law a distant entity from their lives, wielding significant power.
Three respondents in this study developed Aobefore the lawAo consciousness towards fiqh.
However, they held differing views on 56 Arskal Salim.
Contemporary Islamic Law in Indonesia: Sharia and Legal Pluralism.
Contemporary Islamic Law in Indonesia: Sharia and Legal Pluralism, vol.
6, 2015,
https://doi.
org/10.
1080/14442213.
Yuliandri et al.
AuShifting from Legal Pluralism to Legal Syncretism in Multi-Cultural Indonesia.
Ay 57 Tamir Moustafa.
AuIslamic Law.
WomenAos Rights, and Popular Legal Consciousness in Malaysia,Ay Law and Social Inquiry 38, no.
: 168Ae88, https://doi.
org/10.
1111/j.
Lynette J Chua and David M Engel.
AuLegal Consciousness Reconsidered,Ay Annual Review of Law and Social Science 15, no.
: 335Ae53, https://doi.
org/10.
1146/annurev-lawsocsci-101518-042717.
Qian Liu.
AuLegal Consciousness of the Leftover Woman: Law and Qing in Chinese Family Relations,Ay Asian Journal of Law and Society 5, no.
: 7Ae27, https://doi.
org/10.
1017/als.
58 P.
Ewick and Silbey.
The Common Place of Law: Stories From Everyday Life (University of Chicago Press, 1.
59 Simon Halliday.
Celia Kitzinger, and Jenny Kitzinger.
AuLaw in Everyday Life and Death: A Socio-Legal Study of Chronic Disorders of Consciousness,Ay Legal Studies 35, no.
: 55Ae74, https://doi.
org/10.
1111/lest.
Filip Horyk.
David Lacko, and Adam Klocek.
AuLegal Consciousness: A Systematic Review of Its Conceptualization and Measurement Methods1,Ay Anuario de Psicologia Juridica 31, no.
: 9Ae34, https://doi.
org/10.
5093/APJ2021A2.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
state marriage law and customary practices.
According to these respondents, since state marriage law and customary practices are man-made, they may choose to adhere to them or not.
Mega, one of the respondents, stated as below:
AuTo be honest.
I feel like I have been treated very unfairly by my husband.
Can you imagine? He left me and our child to go to Saudi Arabia, only to get married again Then, he divorced me via phone.
But what can I say, this is already the law and fate from Allah.
Ay Mega feels reluctant to challenge what her husband has done.
She believes her husbandAos actions align with fiqh, considering it done, albeit difficult and painful for her and her child.
A similar sentiment is echoed by Suci as follows:
AuAccording to the Tuan Guru, marriage is considered an act of worship.
In Islamic law, wives are expected to be obedient and submissive to their husbands.
A wifeAos paradise depends on her obedience and devotion to her My husband occasionally beats me when he is angry, but not often.
Ay Since Mega and Suci understand and perceive fiqh as Aobefore the law,Ao they have developed a culture of silence and permissiveness towards domestic violence and toxic marital relationships.
However, their Aobefore the lawAo legal narratives towards fiqh also lead them to view adat and state marriage law not as legal remedies for resolving their marriage problems, even though they are aware of practices like nyenger/nyerorot in adat which they can employ to escape from their toxic marriage.
At the same time, they are also fully aware that women can file for divorce against their husbands in religious courts.
However, they ignored both provisions .
dat and state marriage la.
due to prioritizing the fiqh.
60 B.
Smith and Atun Wardatun.
AuDomestic Violence and Islamic Spirituality in Lombok.
Indonesia: WomenAos Use of Sufi Approaches to Suffering,Ay Contemporary Islam 16, no.
2Ae3 .
, https://doi.
org/10.
1007/s11562-022-00495-5.
al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women Meanwhile, individuals who possess Aowith the lawAo legal consciousness see themselves as consumers, and the law as a commodity they can rightfully use to fight for their rights and 61 Law as an important instrument in the realization of justice for society must remain in connection with the reality and subsystems that surround it.
62 In the context of legal pluralism, individuals Aowith the lawAo view themselves with varying commodity They just need to choose which law to use.
Therefore, for those with legal consciousness Aowith the law,Ao the law is far from being allpowerful.
Instead, it is seen as something that can be changed and manipulated, allowing it to be challenged through legal procedures.
The respondents in this study generally demonstrate legal consciousness Aowith the law.
Ao However, they exhibit varying levels of agency63 despite sharing the same form of consciousness.
Some respondents navigate independently to choose the marriage law they want to use to uphold their rights.
On the other hand, some respondents require support from external actors to achieve legal consciousness Aowith the law.
Ao Typically, those with legal consciousness 'with the law' arising from their own knowledge, understanding, and experience are more confident in navigating themselves within the context of legal pluralism in marriage in Lombok.
This is exemplified by Rina's story.
AuOpposing a husband's tyranny within a marriage is not a form of defiance against religious laws.
I oppose my husband not because I am disobedient to customs and religion, but because my husband fails to be a good As a lawful wife registered at KUA.
I am protected by the state.
Ay 61 Halliday.
Kitzinger, and Kitzinger.
AuLaw in Everyday Life and DeathAy.
Horyk.
Lacko, and Klocek.
AuLegal Consciousness.
Ay 62 Zainal Arifin Haji Munir.
AuWealth Distribution among Sasak Communities Through Inheritance: A Quest for Justice,Ay Samarah 7, no.
: 1627Ae43, https://doi.
org/10.
22373/sjhk.
63 Euis Nurlaelawati.
AuMuslim Women in Indonesian Religious Courts:
Reform.
Strategies, and Pronouncement of Divorce,Ay Islamic Law and Society 20, no.
: 242Ae71, https://doi.
org/10.
1163/15685195-0010A0003.
Platt.
AuAoItAos Already Gone Too FarAoAy.
Nasir.
AuIslamic Law and Paradox of Domination and Resistance:
WomenAos Judicial Divorce in Lombok.
Indonesia.
Ay al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
Sasak women who understand and experience the phenomenon of marriage law through the lens of Aowith the lawAo are very open to using formal legal systems such as religious courts to fight for their rights and justice.
This is as recounted by Dian, one of the respondents whose divorce decree has just been issued by the religious court:
AuI have consulted with an Islamic scholar about my marital situationAe my husband remarried without my consentAe but the scholar only asked me to be patient and keep praying.
I also sought refuge at my parentAos house, but I was scolded instead.
So, inevitably.
I had to file a lawsuit in the religious court.
Ay In the realm of divorce.
Dian indeed sees the provisions of state marriage law regarding divorce as a solution to the legal issues she has faced.
However, when it comes to matters of post-marital residence and personal belongings, she no longer adheres to the dictates of state marriage law.
Instead, she reverts to Aowith the lawAo approach to the provisions of adat.
While still married.
Dian and her husband lived in a house they built on her husband's inherited land.
According to the provisions of state marriage law.
Dian should have joint ownership of the house as it is considered marital property.
However, due to her decision to file for divorce, she willingly relinquished all assets to her In Lombok, when a wife is divorced .
by her husband, she is escorted back to her parentAos home by the husbandAos extended family along with her belongings.
However, if a wife engages in nyenger/nyerorot, it is taboo for her to return to the husbandAos home to reclaim her belongings.
If a woman engages in nyerorot and demands her belongings, she is considered to lack selfrespect and deserves shame.
AuBecause I divorced after filing for divorce.
I feel embarrassed to insist on the assets to my ex-husband and his extended family because my extended family and his extended family still have familial ties.
Ay al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women DianAos experience illustrates that legal consciousness regarding a particular law within the context of legal pluralism is temporary and However, legal consciousness is still crucial in assisting Sasak women like Dian in navigating the legal remedies available to In one aspect, she may decide to utilize state marriage law, while in another aspect, she upholds fiqh and adat.
Not all respondents with legal consciousness Aowith the lawAo ultimately choose to use the provisions of state marriage law as legal remedies for the marital issues they face due to their own knowledge or considerations.
Some respondents admit to accessing the judiciary through religious courts with the support of a womenAos NGO.
Previously, they were resigned to their fate, understanding the phenomenon of marriage law with a narrative of Aobefore the law.
Ao This clearly shows that legal consciousness can change due to external This is echoed by Yuni, a respondent who is a woman's activist as follows:
AuWe have assisted many Sasak women who were divorced by their husbands outside the court.
These women often feel resigned, although divorce outside the court significantly affects their legal status as widows.
endeavor to mediate with their former husbands in the hope that they will proceed with formal divorce proceedings in the religious court.
However, if these former husbands refuse, we continue to support the women in filing lawsuits in religious court.
Ay The interview result shows that women typically hesitate to use the formal justice system because they tend to refrain from engaging with the formal justice system due to their entrenched legal consciousness narratives premised on the concepts of Aobefore the law,Ao particularly concerning fiqh and religious courts.
Fiqh, being perceived as immutable divine law, is deemed as holding an unquestionable status, while religious courts, particularly for Sasak women with limited educational backgrounds, represent formidable symbols of authority that seem unattainable.
Consequently, they are unable to envision themselves accessing a justice system as potent as the religious courts for seemingly trivial divorce matters that they al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
On the other hand, the experience of Sasak women with fiqh, adat, and state marriage law contribute to the formation of their Aoagainst the lawAo legal narratives.
Individuals with such consciousness tend to eschew recourse to legal remedies through the formal judicial system due to perceptions of its inability to provide certainty and the attendant risks involved.
Indeed, some respondent express reluctance to resort to formal legal mechanisms for fear of broader social ramifications, including reputational concerns within their This sentiment is echoed in the findings of Nurmala.
Furthermore, beyond social and familial considerations.
Sasak women are deterred from seeking justice through the formal legal system by convoluted bureaucratic procedures and substantial administrative expenses.
Additionally, the protracted nature of court proceedings, often involving multiple hearings before a verdict is reached, contributes to their disillusionment with the formal legal For instance.
Rani, a respondent who opted for nyerorot and left her husband three years ago, recounted her experience with the religious court as follows:
AuI was asked for registration fees for the case.
Then I had to pay for legal representation and other expenses.
After knowing that.
I decided not to pursue my case in religious I preferred nyerorot instead.
Au Furthermore.
Sasak women also contemplate the process of reconciliation when preparing to file for divorce.
If divorce occurs outside of the courts, the husband and wife can reconcile during the Aoiddah period without administrative processes.
However, when the divorce process is conducted through the courts, the reconciliation process must also be reported.
The legal consciousness of Sasak women in the context of legal pluralism in marriage is therefore plural and contextual, heavily influenced by their knowledge, understanding, experiences, and Despite its diversity, legal consciousness plays a crucial role in guiding Sasak women in choosing the legal norms they adhere Therefore, efforts towards empowerment and gender mainstreaming must take into account these forms of legal 64 Fahriyanti.
AuGugat Cerai: Membebaskan Prempuan dari Penderitaan.
Ay al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 The Interplay of Fiqh.
Adat, and State Marriage Law:
Shaping Legal Consciousness of Sasak Women The law cannot be formulated solely on paper but must also consider the social conditions of the groups who are subject to the law.
Conclusion The intricate interplay among fiqh, adat, and state marriage law significantly shapes the legal landscape for Sasak women in Lombok, influencing both legal certainty and their legal consciousness.
Although the state marriage law aims to provide clear guidelines, its impact turns out to be limited due to inadequate enforcement measures, allowing traditional norms of fiqh and adat to retain considerable influence.
Only when integrated with other legal frameworks, such as administrative statutes (Undang-Undang Administrasi Kependuduka.
, does the state law gain effectiveness.
Within this context.
Sasak womenAos legal consciousness manifests Fiqh is often perceived as immutable divine law, while engagement with state law is increasing, particularly through formal legal procedures.
Conversely, resistance to state law can be viewed as a challenge to social harmony.
This study highlights a significant gap in understanding factors that maintain Sasak womenAos adherence to fiqh and adat legal which hinder their ability to fully utilize state marriage law provisions as their legal remedies in marital disputes.
An in-depth exploration of these factors is crucial for elucidating pathways to transform the legal frameworks guiding Sasak womenAos engagement with fiqh and adat.
Future research should employ diverse methodologies to explore socio-cultural, economic, and historical contexts shaping Sasak womenAos perceptions and behaviors regarding marriage legal pluralism.
Additionally, investigating Sasak womenAos level of legal literacy and awareness regarding the provisions of state marriage law could provide valuable insights into potential avenues for empowerment and legal advocacy.
Addressing these research gaps will contribute to a more nuanced understanding of gender, law, and cultural dynamics in Sasak community.
Acknowledgment We would like to express our gratitude to all informants who generously participated and shared their valuable insights and Additionally, we extend our thanks to the Rector of UIN al-Ihkam: Jurnal Hukum dan Pranata Sosial, 19 .
, 2024: 27-52 Jumarim, et al.
Mataram and LP2M UIN Mataram for their unwavering support throughout this endeavor.
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