Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 Justicia Islamica: Jurnal Kajian Hukum dan Sosial Vol 23 No 1.
June 2026 Interpreting Mafqd in Modern Courts:
The Influence of Classical Fiqh Schools on Judicial Ijtihad in Indonesia Hamda Sulfinadia,1* Jurna Petri Roszi,2 Amirulhakim,3 Syahrul Anwar4 Faculty of Sharia.
UIN Imam Bonjol Padang.
Indonesia STAI Azziyadah Klender.
Jakarta.
Indonesia Kolej Islam As-Sofa.
Selangor.
Malaysia Corresponding Author: hamdasulfinadia@uinib.
DOI: https://doi.
org/10.
21154/justicia.
Received: August 10, 2025 Revised: Nov 16, 2025 Accepted: Jan 30, 2026 Abstract: This article addresses the question of how inheritance cases involving mafqd are resolved in Indonesian Religious Courts and to what extent judicial reasoning reflects madhhab moderation within Islamic law.
The issue of mafqd, defined as a missing person whose life or death is legally uncertain, has long generated juristic debate due to divergent interpretations of the principle of istishuAb al-uAl and the scope of judicial authority in determining death.
This study positions itself within normative Islamic legal scholarship by examining judicial practice as an arena where classical fiqh interacts with contemporary positive law.
Using a qualitative legal method, the research analyses twelve purposively selected Religious Court decisions through document study and juridical analysis.
Operationally, the rulings are examined by comparing judgesAo legal reasoning with doctrines from the anaf.
MAlik.
ShAfi, and anbal schools, as well as with the Compilation of Islamic Law.
The findings reveal that judges do not strictly adhere to a single madhhab, but instead employ ijtihAd qasA to selectively integrate classical opinions with statutory norms to ensure legal certainty and substantive justice.
This judicial pattern demonstrates madhhab moderation as a methodological approach rather than doctrinal compromise, contributing, theoretically, to the concept of living fiqh and, practically, to fair inheritance adjudication in Religious Courts.
Keywords: mafqd cases.
Religious Courts.
moderation in madhhab.
Abstrak: Artikel ini mengkaji bagaimana perkara kewarisan mafqd diselesaikan di Pengadilan Agama Indonesia serta sejauh mana pertimbangan hakim mencerminkan moderasi bermazhab dalam hukum Islam.
Persoalan mafqd, yakni orang yang hilang dan tidak diketahui status hidup atau matinya, sejak lama memunculkan perdebatan fikih akibat perbedaan penafsiran atas prinsip istishuAb al-uAl dan kewenangan hakim dalam menetapkan kematian.
Penelitian ini diposisikan dalam kajian hukum Islam normatif dengan menempatkan putusan Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 pengadilan sebagai ruang interaksi antara fikih klasik dan hukum positif.
Metode yang digunakan adalah penelitian hukum kualitatif melalui studi dokumen dan analisis yuridis terhadap dua belas putusan Pengadilan Agama yang dipilih secara purposif karena relevansinya dengan sengketa kewarisan mafqd.
Secara operasional, pertimbangan hukum dalam putusan tersebut dibandingkan dengan pendapat mazhab anaf.
MAlik.
SyafiAoi, dan Hanbali serta ketentuan Kompilasi Hukum Islam.
Hasil penelitian menunjukkan bahwa hakim tidak menerapkan mazhab secara rigid, melainkan menggunakan ijtihad qasA untuk mengintegrasikan doktrin fikih dan hukum positif demi kepastian hukum dan keadilan substantif.
Temuan ini menegaskan moderasi bermazhab sebagai pendekatan metodologis dan berkontribusi pada pengembangan hukum Islam yang adaptif dan berkeadilan.
Keywords: perkara mafqd.
Pengadilan Agama.
moderasi madhhab.
Copyright: A 2026 by author .
This work is licensed under a Creative Commons Attribution-ShareAlike 4.
0 International License.
Introduction There is disagreement among the madhhabs regarding the settlement of mafqd cases.
Mafqd is a person whose whereabouts are unknown, whether alive or dead.
The various benefits of this mafqd are the source of this difference of opinion, so it is necessary to determine its existence.
1 Mafqd is declared alive under the principle of istiuAb until there is convincing evidence of his death.
However, several interests require the existence of the mafqd to be confirmed.
2 First, about the wife of the mafqd, it is necessary to clarify the whereabouts of her missing husband because this concerns the status of his wife, whether the wife still belongs to the mafqd, how long the wife must wait for certainty whether her husband is alive or dead, and when she can remarry another man.
3 The second concerns property, which is closely related to Mek Wok Mahmud and Siti Zulaikha Binti Mokhtar.
AuMafqd and Fasakh in the Writings of Muslim Jurists and Provisions of Malaysian Federal Territory Islamic Family Law: The Case of MH 370 Missing Plane,Ay Intellectual Discourse 25 .
: 575Ae88.
Isniyatin Faizah.
SyafiAo Nuril Izza, and M.
Najib.
AuThe Application of Istishab In Cases of Missing Heirs (Mafq.
or Those Whose Whereabouts Are Unknown,Ay Al Hakam: The Indonesian Journal of Islamic Family Law and Gender Issues 5, no.
1 (June 2.
: 57Ae69, https://doi.
org/10.
35896/alhakam.
Nunung Rodliyah.
Elfa Murdiana, and Ricco Andreas.
AuJudicial Ijtihad in Religious Courts for Achieving Substantive Justice in Indonesia,Ay Journal of Law and Regulation Governance 2, no.
: 372Ae80, https://doi.
org/10.
57185/jlarg.
Farahsyinta Gladisia Puspa Fardiana.
Khoirul Hidayah, and Mohd Hazim Bin Borhan.
AuA Comparative Analysis of the Missing (Mafqu.
Husband Regulations in Indonesia and Malaysia: A Study to Reform Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
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June 2026 Mutual inheritance occurs when there is death.
If there is no death, then a person cannot inherit, or he may die before his relatives.
The mafqd case has occurred not only in the studies of the imams of the madhhab,5 but also in legal practice in Indonesia.
6 Based on data from the Directory of Decisions of the Supreme Court of the Republic of Indonesia, there have been 256 Religious Court decisions related to mafqd cases over the last three years .
9Ae2.
This data shows that the phenomenon of mafqd is not merely a theoretical issue, but a real problem faced by religious courts.
Of these decisions, 12 were selected as research samples for analysis from the perspectives of the four fiqh schools: anaf.
MAlik.
ShAfi, and anbal.
However, from the initial review, there appears to be a gap between the theoretical construction of classical fiqh and the practice of mafqd resolution in Indonesian Religious Courts, where judges often interpret contextually, in line with social needs and national positive law.
This condition illustrates the dynamics of the madhhab's moderation in the practice of Indonesian religious courts, which is the primary focus of this study.
Previous studies on mafqd in Islamic law and in religious court practices in Indonesia have focused on three main themes: determining the status of mafqd, the continuation of the mafqd party's marriage, and the inheritance of mafqd.
First, studies on assessing the status of mafqd highlight the criteria and time period used to determine that a person is legally missing.
8 Most studies examine the application of classical views of madhhab scholars in the the Regulation That Meets Legal Certainty in Indonesia,Ay De Jure: Jurnal Hukum Dan SyarAoiah 14, no.
: 359Ae79, https://doi.
org/10.
18860/j-fsh.
Alifia Farhanah and Muhammad Muhammad.
AuAnalisis Penetapan Kewarisan Mafqud Pada Putusan Nomor 318/Pdt.
P/2022/PA.
Kab.
Mn,Ay Al Fuadiy Jurnal Hukum Keluarga Islam 6, no.
: 13Ae24.
Abdul Jafar.
AuWarisan Mafqud Dan Orang Mati Bersama Menurut Imam Mazhab Dan Hukum Islam Di Indonesia,Ay Shar-E: Jurnal Kajian Ekonomi Hukum Syariah 10, no.
: 145Ae62.
Fathun Nisa Nisa.
AuPembagian Harta Waris Terhadap Ahli Waris Yang Hilang (Mafqu.
Ditinjau Dari Hukum Islam,Ay Interdisiplin Journal Social Science (IJSS) (February 10Ae16, https://doi.
org/10.
33330/ijss.
Andre Afrilian.
AuLandasan Hukum Dan Pertimbangan Hakim Tehadap Status Istri Dalam Perkara Suami Mafqud Melalui Putusan Nomor 0279Pdt.
G2009PA.
PAS,Ay Al Maqashidi: Jurnal Hukum Islam Nusantara 6, no.
: 84Ae103.
Muchamad Coirun Nizar.
AuThe Religious CourtAos Decisions on Divorce: A MaqAid Shara Perspective,Ay Ulumuna 24, no.
: 398Ae416, https://doi.
org/10.
20414/ujis.
Hatice Kybra Kahya.
AuIn Search of a Remedy in Another Madhab: Marriage of an Absent Husband in Ottoman Family Law,Ay Islam Tetkikleri Dergisi .
697Ae716, https://doi.
org/10.
26650/iuitd.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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No.
June 2026 context of modern law, finding differences of opinion regarding the length of the waiting period .
uddat al-intizA.
9 Meanwhile, religious courts in Indonesia tend to adopt a contextual approach that considers the principle of public interest and national legal provisions.
Second, studies on the continuation of marriage with the mafqd focus on the legal implications for the abandoned spouse, particularly the wife's right to remarry after a court ruling.
11 Research on this topic shows the convergence between religious doctrine and socio-legal reality.
12 Judges often use their discretion to balance between Sharia principles and the protection of women's 13 Finally, studies on mafqd inheritance highlight the tension between the classical fiqh principle of delaying inheritance distribution until there is certainty of death and the practical needs of the judiciary in providing legal certainty for heirs.
14 These findings indicate interpretive flexibility among judges in responding to mafqd cases in religious courts.
In general, previous studies have made significant contributions to the normative and procedural understanding of mafqd, but they remain partial and separate in each theme.
16 Therefore, this study offers something new by analysing the dynamics of religious court decisions in Indonesia through the perspective of madhhab moderation, namely how judges negotiate between Mahmud and Mokhtar.
AuMafqd and Fasakh in the Writings of Muslim Jurists and Provisions of Malaysian Federal Territory Islamic Family Law,Ay 575.
Fardiana.
Hidayah, and Borhan.
AuA Comparative Analysis of the Missing (Mafqu.
Husband Regulations in Indonesia and Malaysia,Ay 359.
A Khomsatun.
AuHukum Pernikahan Istri Yang Disebabkan Suami Mafqud Menurut Perspektif Hukum Islam,Ay Jurnal Al-Wasith: Jurnal Studi Hukum Islam, no.
Query date: 2022-10-04 15:51:33 .
, https://jurnal.
id/index.
php/wst/article/view/196.
Muthia Hartati and Muhammad Yunus.
AuUpaya Hukum Dan Perlindungan Terhadap Istri Dalam Perkara Suami Mafqud,Ay Jurnal Riset Hukum Keluarga Islam.
December 20, 2022, 67Ae70, https://doi.
org/10.
29313/jrhki.
Lindiana Pramaysela.
Nuraeni Novira, and Rahmayani Lancang.
AuImplikasi Hukum Perkawinan Pada Kasus Rajul Mafqud,Ay AL-QIBLAH: Jurnal Studi Islam Dan Bahasa Arab 1, no.
1 (August 2.
: 53Ae71, https://doi.
org/10.
36701/qiblah.
Sirat Handayani.
AuKepastian Hukum Pembagian Waris Terhadap Orang Yang Dianggap Hilang Berdasarkan Penetapan Ketidakhadiran Di Pengadilan,Ay Jurnal Ilmu Hukum: ALETHEA 4, no.
2 (May 2.
: 95Ae114, https://doi.
org/10.
24246/alethea.
brahim Kyfi Dynmez.
AuAn Oft-Repeated Fallacy in Writing and Teaching Islamic Legal Methodology and Its Significations: The Case of Mafqd,Ay Islam Arastirmalari Dergisi 2022, no.
: 1Ae65, https://doi.
org/10.
26570/isad.
Hamda Sulfinadia et al.
AuImplementation of Aqiqah in the Bulan MaulidIn Nagari Padang Laweh West Sumatra PerspectiveAoUrf,Ay Al-Istinbath .
465Ae484.
https://doi.
org/10.
29240/jhi.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 classical fiqh doctrine and the needs of modern legal practice, thereby producing a contextual, adaptive, and just form of Islamic law.
This method involves a study of twelve Religious Court decisions and legal analysis of their determinations of mafqd status and inheritance rights.
These rulings were selected through purposive sampling, based on the consideration that they explicitly discuss the legal determination of missing persons and their legal implications for heirs, contain sufficiently detailed legal reasoning, and are relevant to inheritance disputes involving mafqd.
Data were collected through a literature review of court rulings, relevant legal documents, and regulations.
The analysis compared the practices found in mafqd case rulings with the opinions of the four leading fiqh schools: anaf.
MAlik.
ShAfi, and anbal.
This study aims to identify how madhhab moderation is applied in legal practice and to evaluate the conformity of Religious Court decisions with applicable Islamic legal principles.
Determination of Mafqd and Basis for Judge's Consideration in Indonesia It is not only in the study of Islamic Jurisprudence that the determination of the death of mafqd is the judge's authority.
The compilers of the Compilation of Islamic Law (KHI) also determine this.
17 The provisions of Article 71, letter b, state that the heir is a person who, at the time of his death or who is declared dead based on a court decision, is Muslim.
In addition, in Book II, it has been expressly stated that one of the functions of the voluntary jurisdiction of religious courts is to request that a person be declared in a state of mafqd.
The Compilation of Islamic Law explains in Article 71 that a marriage can be annulled if: .
A husband commits polygamy without the permission of the Religious Court.
The woman who is married is later found to be still the wife of another man who is mafqd.
The woman who is married is still in the iddah period with another husband.
Marriages that violate the age limit for marriage as stipulated in Article 7 of Law No.
1 of 1974.
Marriages conducted without an unauthorised guardian.
Marriages conducted without coercion.
Humaira.
Anggun Mareta, and Dedy Sumardi.
AuEksistensi Mafqud Dalam Hukum Islam Dan Hukum Positif Indonesia: Implikasi Terhadap Hak Waris Dan Perkawinan,Ay Jurnal Hukum Samudra Keadilan 20, no.
1 (May 2.
: 17Ae30, https://doi.
org/10.
33059/jhsk.
Abdul Manaf and Hakim Tinggi PTA Medan.
AuYurisdiksi Peradilan Agama Dalam Kewarisan Mafqud,Ay in https://w.
pa-bengkulukota.
id/ accessed April 2025.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 The matter of determining the death of mafqd is the jurisdiction of the courts within the Religious Courts, with due regard to the provisions of Article 2 of Law Number 7 of 1989, which has been amended by Law Number 3 of 2006, which states that the Religious Courts are one of the actors of judicial power for people seeking justice who are Muslims regarding some instances as referred to in this Law.
The determination of mafqd cases in the Religious Courts in Indonesia can be seen in the table below:
Table 1.
Determination of Mafqd Cases in Indonesia PA Name PA Bantul Case Number 11/Pdt.
P/2020/PA.
Verdict Determination of mafqd: the child is determined to be mafqd, considering that the age of life has exceeded the average age.
PA Wates Pdt.
P In determining mafqd, the father /2020/PA.
is deemed mafqd, given that he has exceeded the average age.
Jakarta 428/ Determination of Mafqd after 12 Selatan Pdt.
P/2020/PA.
years of unknown news.
PA Surabaya Determination of Mafqd after 2 Pdt.
P/2020/PA Sby years of leaving home, and no news is known.
PA Jember Determination of mafqd after 10 Pdt.
P/2020/PA.
years of unknown news.
PA Jember Determination of Mafqd after 10 Pdt.
P/2020/PA.
years of unknown whereabouts.
PA Jember Determination of mafqd 11 years Pdt.
P/2020/PA.
of unknown news.
PA Kendal x/Pdt.
G/2019/ Determination of mafqd 2 years PA.
Kdl after unknown whereabouts.
PA Wates 39/Pdt.
P/2019/PA
Determination of Mafqd after 76 PA Yogyakarta XX/Pdt.
P/2019/Yk Determination of Mafqd after 40 Mahkmah 480/Pdt.
P/2020/MS Determination of mafqd after 12 SyariAoah Sigli Sgi years of unknown whereabouts.
PA Yogyakarta 0042/Pdt.
P/2019/PA Determination of mafqd after 7 years running away from home.
Source: Directory of Decisions of the Indonesian Supreme Court, 2025 Based on the table above, it can be classified as a form of Religious Court decisions in Indonesia related to the continuation of marriage, which can be Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 classified into 3: First, the determination of the mafqd case, which is in line with the opinion of the anaf Madhhab.
PA Bantul Stipulation No.
11/Pdt.
P/2020/PA.
Btl and PA Wates Decision on Case No.
15/Pdt.
/2020/PA.
Wt states that the determination of mafqd in both decisions, the child is determined to be mafqd, with the legal consideration that the age of life has exceeded the average age.
In PA Bantul Stipulation No.
11/Pdt.
P/2020/PA.
Btl, it is explained that the mafqd child was taken by his parents to another area in 1946 when the child was only 8 years old, but until the entry of this case to PA Bantul, his whereabouts were unknown, and both parents were confirmed dead.
The family filed a mafqd determination in 2020, and it was decided that this child was mafqd because his whereabouts had been known for 76 years.
In Case No.
15/ Pdt.
P /2020/PA.
Wt the determination of mafqd, the father was determined to be mafqd, considering that his age exceeded the average age of his father's peers.
Likewise, with the determination of the Wetan Religious Court No.
39/Pdt.
P/2019/PA Wt, the determination of mafqd after 76 years of unknown news of the mafqd and the Yogyakarta Religious Court Determination No.
XX/Pdt.
P/2019/Yk, which determines mafqd after 40 years of no news of the mafqd.
In these last two determinations, it turns out that 76 and 40 years after the loss of the mafqd have exceeded the average ages of people aged 65 and 72.
The determination of the mafqd case above is in line with the opinion of the anaf Madhhab.
This is evident from the opinion of Abu Hanifah and his companions that a person who is mafqd is only legally determined when a person of the mafqd's age has died.
Regarding the age of the deceased in general, this group argues that there are ages of 60, 90, and 120 years.
19 In both of the above rulings, the Bantul Religious Court and the Wetan Religious Court ruled that a person is only determined as mafqd when a person of the mafqd's age has died, or a person of the mafqd's age has exceeded the average age of the mafqd.
Second, mafqd cases should be determined in accordance with the MAlik and ShAfi Madhhabs.
Determination of South Jakarta Religious Court No.
Shams al-Dn al-Sarakhsh.
Al-Mabs (Beirut: DAr al-MaAorfah, 2.
Muhammad Abu Zahrah.
Alahwal al-shakhsiyyah (Cairo: Dar al-Fikr al-yArabi, 1.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 428/Pdt.
P/2020/PA JS, determination of mafqd after 12 years.
Determination of Jember Court No.
815/pdt.
P/2020/PA Jr, determination of mafqd after 10 Determination No.
996/dt.
P/2020/PA.
Jr, determination of mafqd after 10 years.
Determination No.
638/Pdt.
P/2020/PAJr, determination of mafqd after 11 years since the news of the mafqd is not known.
Sigli Syar'iyah Court Determination No.
480/Pdt.
P/2020/MS.
Sgi.
Yogyakarta Religious Court determination No.
0042/Pdt.
P/2019, determination of mafqd is carried out after 7 years of unknown news of the mafqd.
In the six stipulations above, the relevant Religious Courts determine the mafqd of a person after a period of 7 to 11 years.
Given the passage of 4 years, there is no news of the mafqd, whether he is alive or dead, which is in line with the opinions of the MAlik and ShAfi Madhhabs.
The MAlik and ShAfi schools of thought think that a person who is mafqd can be declared dead by a judge if four years have passed.
After four years have passed, if the wife is unable to live on her own, she may file a lawsuit with the judge for annulment because the husband is mafqd.
20 However, the age limit according to the MAlikyah is up to 70 based on the well-known hadith that the age limit of my Ummah is between 60 and 70 years old.
The ShAfi Madhhab also explains that the mafqd can be declared dead based on available evidence or after the passage of a period believed, according to the usual, to be impossible for him to be still alive.
They do not determine the size of the period because human age is relative, but leave it entirely to the judge based on these considerations.
21 Another narration explains that the age limit is 90 years, based on the prevailing custom.
22 The settlement of mafqd cases, according to the ShAfi Madhhab, is that the mafqd husband can apply for annulment of his marriage to the ruler, after which he is given four years.
Within this time, a search is carried out for his husband in the case of a missing person in an enemy country.
Based on the stipulations of the 6 relevant Religious Courts, it turns out that, in determining abandonment of the mafqd Hasri Wahyuni Manurung.
AuPenyelesaian Warisan Dari Pewaris yang Hilang Menurut Mazhab SyafiAoi (Studi Kasus Kecamatan Simpang Empat Kabupaten Asaha.
Ay .
Universitas Islam Negeri Sumatera Utara, 2.
, http://repository.
id/13004/.
Zahrah.
Al-ahwal al-shakhsiyyah.
Muhammad al-Idris Al-ShafiAoi.
Kitab Al-Umm (Dar Al-Marifa, 1.
Wahbah Al-Zuhaily.
AuAl-Fiqh alIslamiy Wa Adillatuhu,Ay Juz VII.
Damsyiq: Dar al-Fikr, 1989.
Muhammad Ali Ash-Shabuni.
Pembagian waris menurut Islam (Jakarta: Gema Insani, 1.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 after no news is received for 7 to 11 years, the stipulation is, in fact, in line with the MAlik and ShAfi madhhabs.
Third, the determination of mafqd is based on the judge's ijtihad.
Determination of the Kendal Religious Court No.
x/Pdt.
P/2019/PA Kdl and Determination of Surabaya Religious Court No.
0655/Pdt.
P/2020/PA Sby determined that the mafqd had died after 2 years of unknown existence of the mafqd.
The two stipulations are based on the judge's ijtihad.
Judges can resolve and determine a case through their ijtihad.
The determination of the legal death of the mafqd is left to the judge.
The judge will research and exercise ijtihad, doing what is beneficial.
24 Some other Maalikis are of the view that the judge may determine the death of the mafqd after one year has passed.
25 This opinion is also in line with the opinion of 'Ali bin Abi Talib.
The reason for this is the absoluteness of the words of 'Ali ibn Abi Talib: The wife of the mafqd is a wife who has been subjected to trials, so be patient and do not marry her until there is proof of her husband's death.
The Hanbali school of thought distinguishes between two categories of mafqd: a.
Mafqd who is presumed dead, such as a person who asks permission to go to war, after the war is over, the person does not return, after searching for information, no one knows, and no one has seen his body.
In such a case, the mafqd can be said to have died if four years have passed.
Mafqd, who is not seriously suspected of having died.
For example, a person said goodbye to trade, but after some time, he did not return home, and it was not known whether he was alive or dead.
The mafqd, in this case, is considered to MuAotashim Billah.
AuKonsep Radd Dalam Kompilasi Hukum Islam: Interpretasi Hakim Pengadilan Agama Yogyakarta,Ay Ahkam:
Jurnal Hukum Islam (July 27Ae54, https://doi.
org/10.
21274/ahkam.
Agung Widya Yudhistira and Agung Widya Yudhistira.
AuAkibat Hukum Orang Hilang (Mafqu.
Terhadap Harta Benda Dan Penyelesaian Kewarisan Dalam Islam,Ay Repertorium: Jurnal Ilmiah Hukum Kenotariatan 10, no.
2 (November 2.
: 131Ae45, https://doi.
org/10.
28946/rpt.
Imam Malik, in one of his opinions, determined that the permissible time for a judge to pass a death sentence on the mafqud is four .
He derived this opinion from the statement of Umar bin Khattab, who said: AuEvery wife who is abandoned by her husband, and she does not know where her husband is, must wait four years, then observe 'iddah for four months and ten days, after which she is Ay See Al-Zuhaily.
AuAl-Fiqh al-Islamiy Wa Adillatuhu,Ay 456.
Al-Zuhaily, 455.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 have died if people of the mafqd's age have generally died or agree with the anafs.
Suppose it is related to the above Religious Court decisions.
In that case, it can be understood that of the 13 .
decisions above, there are no mafqd or disappearance of a person strongly suspected of having died.
However, in the 13 mafqd choices listed in the table above, where the mafqd left the house, there is a slight possibility that the mafqd died.
The cause of the mafqd's departure from home is basically that it is unlikely that they died because, at the beginning of their disappearance, some went migrating, went on tour, went to carry out their usual activities and until finally in the range of 7 to 76 years later their whereabouts were unknown and even until the average age of the mafqd's peers had died.
Based on the description above, it can be understood that the 13 determinations above align with the opinion of the Hanbali Madhhab.
The basis of the judge's consideration in determining mafqd in Indonesia is Article 71 of the Compilation of Islamic Law (KHI), the opinion of the Madhhab of Jurisprudence, such as the anaf Madhhab.
MAlik Madhhab.
ShAfi Madhhab and Hanbali Madhhab, based on maslahah according to the Judge's Ijtihad.
In another case with Umar bin Khattab, according to him, there are several laws related to the marriage of a mafqd husband: .
The wife may choose between remaining faithful to her husband until it is clear where he is, or she may file a lawsuit.
If the choice is to file the matter with the judge, then according to Umar, the wife must wait four .
years from when she reports her husband to the judge.
This is because a woman's gestation period is at most four years if the news of her husband's pregnancy is apparent within the fouryear waiting period.
If, after four years, there is no sign of her husband's life, then the wife serves an iddah period of four .
months and ten .
If the four-year waiting period is over, the judge must summon the guardian of the mafqd to divorce the woman and the mafqd, and then the woman should Zahrah.
Al-ahwal al-shakhsiyyah.
Ibnu Farhan Istiqlal.
Meriza Isna Fadlilah, and M.
Ikhsanul Akhdza E.
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:,Ay Rayah Al-Islam 9, no.
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: 107Ae26, https://doi.
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Hamda Sulfinadia and Jurna Petri Roszi.
AuModeration of Madhhabs in West Sumatra Towards Hadhanah of Minors Whose Mothers Remarry,Ay El-Usrah: Jurnal Hukum Keluarga 7, no.
: 789Ae Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 observe the iddah period of four months and ten days.
If the wife remarries, then the mafqd husband returns, and the judge shall order her to choose between his wife and the dowry he has paid.
If he chooses the dowry that has been paid, then the wife is for the second husband.
If the mafqd who has returned chooses to return to his wife, then the wife must undergo an 'iddah period, after which he may have intercourse with her, and she still gets the dowry that she received from the second husband in exchange for the pleasure she had with him.
As for the case of mafqd that occurred during the time of Umar bin Khattab, which Abdurrahman bin Laila narrated, he said there was a woman who lost her husband for four .
years, then she reported it to Umar.
Then Umar told the woman to wait four .
years from when she reported the matter to him.
If her husband's whereabouts were unknown, she could remarry another man after the four-year waiting period.
It turned out that her husband's whereabouts were unknown, and she married another man.
After the marriage, her mafqd husband returned.
This news was conveyed to Umar:
''If you want.
I will return her.
If not, then I will marry you to another woman.
The mafqd husband replied: Just marry me to another woman.
The disappearance of a person, which results in the unknown whereabouts of a person, whether he is alive or dead, let alone a husband, will have a bearing on the continuation of the marriage.
This will affect how long the wife waits for her husband and when she can remarry another man.
However, the problem arises when the wife has waited for a certain period according to the opinions of the existing madhhabs and has been submitted to the Religious Court, undergone the trial process, and undergone the iddah of death of 4 months and 10 days.
Then the wife remarries, and after marriage, the mafqd husband returns.
The resolution of a case like this can be understood from the opinions of the existing madhhabs.
According to Imam Abu Hanifah and ShAfi, if the mafqd returns while the wife is already married, the wife remains the first husband's property.
At the same time, her marriage to her second husband is void .
Imam Malik thinks that if the mafqd comes before the second husband intercedes, the woman remains the first Muhammad Rawwas QalAoahji.
Ensiklopedi fiqih Umar bin khathab r.
a (Jakarta: PT RajaGrafindo Persada, 1.
, 362.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 husband's wife.
However, if the mafqd comes before the second husband has interfered with her, she remains the first husband's wife, and the second husband must pay the mahr to the first husband.
According to Imam Ahmad, if the woman has not been married to her new husband, she remains the first husband's wife.
If he has already had intercourse with her, then the matter is in the hands of the first husband.
if he wants to return to his wife, then he can take her from the second husband and return the dowry.
If he does not want to, the first husband can leave her with her new husband, and he can take the dowry from her.
Table 2.
Typology of Judicial Rationality in the Determination of Mafqd Reasoning Mode Characteristics of Judicial Reasoning Textual Literal adherence to classical juristic declaration of death only after the mafqd has exceeded the average human life Integration of multiple schools of law, combined with considerations of family welfare .
, and the waiting period as a basis for legal Independent judicial ijtihAd grounded in concrete justice and socioeconomic realities.
relatively shorter waiting period Doctrinal Pragmatic malauah Dominant School of Law anaf MaqAid Orientation Representative Decisions uife al-nafs .
recautionary principle in preserving the presumption of PA Bantul.
PA Wates MAlikAe ShAfiAo uife al-Aoird and uife al-nasl .
rotection of marital status and lineag.
PA Jember.
PA South Jakarta.
MS Sigli IjtihAdbased uife al-mAl and uife al-Aoird .
rotection of interests and family dignit.
PA Kendal.
PA Surabaya Source: AuthorAos analysis, 2026 Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 Based on the above description, the determination of the legal status of mafqd by judges in the Religious Courts in Indonesia demonstrates a spectrum of judicial rationality that is substantively in line with maqAid alshara, even though it has not been explicitly stated in the normative framework of legislation.
This is reflected in the variety of approaches taken by judges, ranging from textual fidelity to the doctrines of the madhhab to pragmatic ijtihad based on the interests of the family.
In decisions oriented towards textual fidelity, protection of uife al-nafs becomes the most dominant maqAid.
The judges' caution in not immediately declaring a person mafqd before their age exceeds the average human life expectancy reflects the fiqh principle that the original law of humans is life .
l-al baqAAo al-uayA.
This approach prioritises the safety of the soul and the assumption of continued life, even though it delays legal certainty for the bereaved family.
Conversely, rulings with doctrinal flexibility show a shift in the orientation of maqAid towards uife al-Aoird and uife al-nasl.
30 By declaring a person mafqd after a certain period of time .
Ae12 year.
, judges seek to end uncertainty regarding marital status, protect the honour of the wife, and provide certainty regarding the lineage and inheritance rights of children.
This approach reflects the internalisation of the MAlik and ShAfi schools of thought, which allow for the determination of death based on time, custom ('ur.
, and rational probability of a person's survival.
Meanwhile, decisions based on pragmatic maslahah represent a more progressive and contextual actualisation of maqAid.
In the Kendal and Surabaya court cases, the judges' ijtihad was directed at protecting uife al-mAl and uife al-'ird, especially when the uncertainty of mafqd status had the potential to cause economic losses, stagnation of civil rights, and a heavy social burden on the family.
In this context, the judge's ijtihad serves as a corrective mechanism for the limitations of the text and doctrine when faced with the need for concrete justice.
Thus, the determination of mafqd in the practice of Indonesian Religious Courts is not monolithic, but rather reflects a typology of judicial rationality that ranges from textual fidelity and doctrinal flexibility to ijtihad maslahat.
This variation confirms that maqAid al-sharAoah has implicitly become the Lia Noviana.
Lukman Santoso, and Mega Puspita.
AuInterpreting Legal Rights: Disparities in Judicial Treatment of Children Born Out of Wedlock in East Java.
Indonesia,Ay Lex Scientia Law Review 8, no.
(September 2.
: 1, https://doi.
org/10.
15294/lslr.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 foundation of judicial consideration, while also reinforcing the urgency of formulating more explicit, standardised normative guidelines for determining mafqd that are oriented toward comprehensive family protection.
Mafqd Heirs: Madhhab Perspectives and Judges' Ijtihad Jurisprudence scholars have different opinions on the status of mafqd's property and wife, namely, there are 4 .
alternatives: .
He is considered alive, both in terms of his property and his wife.
That is, the property and wife still belong to Mafqd until there is convincing news that he has died.
He is considered dead, both in terms of his wealth and in terms of his wife.
This means the wife can remarry, and the property can be distributed to her heirs.
He is considered alive in terms of wealth and dead in terms of his wife.
This means the wealth may not be distributed because he is still considered alive.
However, his wife may remarry another man.
He is considered alive regarding his wife and dead regarding his property.
This means the wife cannot remarry, and the property can be distributed to the heirs because it is considered dead.
The requirements for heirs explained in faraid are that the heirs be alive at the time of the testator's death, and among these requirements is the requirement of a certain death.
32 This uncertainty causes problems in The discussion of mafqd in this inheritance involves two things.
First, he transfers his property to the heirs in his position as an heir.
Second, in his position as an heir, relating to legally transferring the heir's property to Determining the status of mafqd in the study of Islamic Jurisprudence, whether the person is still alive or has died, is increasingly important because it involves many aspects, including the law of inheritance.
As an heir.
Mafqd is entitled to a share according to his status, whether as a dzawil furud or Muhammad Syaltut.
Perbandingan Madhhab Dalam Masalah Fiqih (Jakarta: Bulan Bintang, 2.
, 246.
Boris A.
Antonov.
AuMadhhabs in the Islamic Law: Comparative Legal Analysis,Ay RSUH/RGGU Bulletin.
Series Economics.
Management.
Law, no.
: 113Ae32, https://doi.
org/10.
28995/2073-63042023-1-113-132.
Saidul Iskandar.
AuDasar hukum penetapan status hukum mafqud dalam kewarisan di Pengadilan Agama Yogyakarta dan KediriAy (Fakultas SyariAoah dan Hukum UIN Syarif Hidayatullah, 2.
, https://repository.
id/dspace/handle/123456789/41250.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 33 Meanwhile, as heirs, they need clarity on their status in the event of their death, as this status is one of the conditions for determining whether the mafqd's inheritance as heirs is open.
Two legal considerations can be used in seeking clarity on the legal status of mafqd, namely: First, based on authentic evidence that can be accepted as shar'i, in line with the principle: AuWhich remains based on evidence as it remains based on reality.
Ay34 For example, if two fair and trustworthy people testify that so-and-so has died, the judge can use their testimony to determine the status of the mafqd's If the judge has decided the law, in the capacity of the mafqd as heir, then his assets can be distributed to the heirs.
The scholars differed on the period for determining the death of the mafqd.
They are divided into several schools of thought.
Such considerations and efforts must be more vital, but some are acceptable and can be used as legal references.
First: Caliph Umar ibn Khattab once decided a case through his words as follows: AuAny woman whose husband is missing, and she does not know whether he is alive or dead, must wait for four years.
After that, she undergoes a waiting period of four months and ten days, then she is permitted to remarry.
Ay Secondly.
Imam Abu Hanifah and his students.
Abu Yusuf.
Imam ShAfi, and Muhammad Hasan al-Syaibani, hold that the judge may determine the death of the mafqd by his judgment.
The consideration is the maximum average human age in which the mafqd lived.
this is defined in the judge's Based on the two considerations above, ultimately, determining the status of the mafqd lies in the ijtihad of the judge.
35 In the era of reform and the development of increasingly sophisticated technology supported by an adequate state apparatus, the above considerations must be re-examined for Muhibbussabry Muhibbussabry.
AuHak Waris Mafqud (Orang Hilan.
dan Penyelesaian Dengan Metode Mauquf (Penangguha.
,Ay An-Natiq Jurnal Kajian Islam Interdisipliner 4, no.
1 (February 2.
: 80Ae92, https://doi.
org/10.
33474/an-natiq.
Mohammad Adnan and Badrah Uyuni.
Ilmu Waris Islam: Teori.
Aplikasi, dan Solusi Kontemporer (PT Penerbit Qriset Indonesia, 2.
Abdelrahman Abdelhamid Mohammed Hassanein.
AuThe Complementarity of Ijtihad and the Maqasid Al-Shariah in Islamic Law: An Analytical Study,Ay International Journal of Academic Research in Business and Social Sciences 15, no.
5 (May 2.
, https://doi.
org/10.
6007/ijarbss/v15-i5/25424.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 their effectiveness.
36 Information facilities, both in print and electronic media, are indeed beneficial to judges' duties in determining the status of mafqd.
Mafqd, in his position as heir, scholars agree that the missing person was considered alive during his disappearance.
Therefore, his wife remains the wife of the mafqd, and his wealth cannot be distributed to the heirs.
Regarding how long the mafqd is considered alive, the scholars differ in opinion as described 38 The attitude of the scholars of Jurisprudence is based on the rule of istiuAb, which determines the law that applies from the beginning until there is evidence to the contrary.
Imam ShAfi stated that this is a ruling from Allah SWT, the Messenger, the opinion of the Arabs, and the scientists in our 39 A person cannot inherit the property of his relatives until there is evidence that he has died.
Whoever inherits the property of a living person is violating the ruling of Allah and His Messenger.
However, the assumption of being alive cannot be maintained indefinitely, as this would harm others.
Therefore, a legal consideration must be used to clarify the legal status of the mafqd.
Scholars of Jurisprudence have agreed that the judge has the right to determine whether the missing person is dead.
However, the scholars agree that he must wait until a specific time in his position as an heir.
However, scholars differ in opinion on the position of the mafqd as an heir who gets a share of the inheritance.
The Jumhur Ulama group believes that istishab can be used to confirm existing rights and obtain new ones.
41 Meanwhile, according to the anafs.
Sodiq Omoola and Hafsat Kamal Ibrahim.
AuThe Legal Implications of Abandoned Digital Assets in Sharah-Compliant Fintech Platforms,Ay ISRA International Journal of Islamic Finance 15, no.
2 (May 2.
: 60Ae76, https://doi.
org/10.
55188/ijif.
Shahbaz Ahmad Cheema.
AuDistribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators,Ay Journal of Islamic Thought and Civilization 11, no.
1 (June 2.
: 112Ae31, https://doi.
org/10.
32350/jitc.
Nor Amira Binti Abd Shakor and Mohd Zamro Bin Muda.
AuMissing Persons (Al-Mafqu.
and Its Relationship With Nafaqah According to Sharia Perspective,Ay International Journal of Academic Research in Business and Social Sciences 13, no.
3 (March 2.
, https://doi.
org/10.
6007/ijarbss/v13i3/16399.
Ahmed Nafiu Arikewuyo and Idris Abdur-Rahman Olamilekan.
AuApplication of IstiuAb and IstiusAn in Islamic Law of Inheritance: An Analytical Study,Ay International Journal of Fiqh and Usul Al-Fiqh Studies 8, no.
2 (July 2.
: 142Ae56, https://doi.
org/10.
31436/ijfus.
Imam Asy-SyafiAoi.
AL-UMM #1: Kitab Induk Fiqih Islam (Republika Penerbit, 2.
Muslimin and M.
Abdul Kharis.
AuIstihsan and Istishab in Islamic Legal Reasoning: Towards the Extension of Legal Finding in the Context of Indonesia,Ay Al-Risalah: Forum Kajian Hukum Dan Sosial Kemasyarakatan 20, no.
2 (December 2.
: 163Ae79, https://doi.
org/10.
30631/alrisalah.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 istishab can only be used to verify existing rights rather than to get new ones.
The opinion of the Jumhur Ulama .
he majority of scholar.
is that, after 4 years, and based on a court decision, the mafqd's property can be divided if the status is that of an heir.
If the mafqd is an heir after 4 years, and if his family is also an heir, then he is entitled to be an heir and receives a predetermined The settlement of mafqd cases in terms of determining heirs in Indonesia can be seen in the following table:
Table 3.
Determination of Heirs from Mafqd Cases in Indonesia PA Name PA Lumajang Case Number 806/Pdt.
P/2020/PA.
306/Pdt.
P/2020/Ms.
Bna Mahkamah SyarAoiyyah Banda Aceh PA Banyumas PA Bandung 693/Pdt.
P/2019/PA.
Badg Jakarta 911/Pdt.
P/2019/PA.
Selatan PA Yogyakarta 050/Pdt.
P/2020/PA Bms 31/Pdt.
P/2019/PA Yk Verdict Children who are mafqd are considered heirs to their father and mother.
Determination of heirs after the death of the husband's Determination of heirs after 40 years of mafqd.
Children who are mafqd are considered heirs to their Determination of the heirs of mafqd after 14 years of mafqd is unknown.
Determination of heirs after 40 years of mafqd.
Source: By authors analysis, 2025 Determination of Lumajang Court No.
806/Pdt.
P/2020/PA/ L.
Mj.
Determination of Bandung Religious Court No.
693/Pdt.
P/2019/PA.
Badg, determining the heirs of the mafqd based on the ijtihad of the Judge, in which the determination states that the child is chosen as heir after 2-3 years of unknown news.
After their parents died, the testator's child was determined to be the heir.
This means that the two rulings above align with the majority opinion of the madhhab's scholars.
Hani Sholihah.
Nani Nani Widiawati, and Mohd Khairul Nazif bin Hj Awang Damit.
AuReinterpretation of Justice in Islamic Inheritance Rights Based on Gender,Ay Al-AoAdalah 21, no.
1 (June 2.
: 101Ae24, https://doi.
org/10.
24042/adalah.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 The stipulation of the Syar'iyyah Court of Banda Aceh No.
306/Pdt.
P/2020/Ms.
Bna determines the heir after the person who is the same age as her husband dies.
Whereas the stipulation of the Banyumas Court No.
050/Pdt.
P/2020/PA Bms and the Stipulation of the Yogyakarta Religious Court determine the heirs after 40 years of the disappearance of the mafqd.
43 In the South Jakarta Religious Court's stipulation, the determination of heirs after 14 years of the mafqd is not new.
These three determinations align with the anaf School's view that the determination of heirs is made after the average person of the mafqd's age dies.
According to the anafs, the mafqd does not inherit from his family unless it is established that the mafqd is still alive or has been declared alive by the judge.
They argue that the person entitled to inheritance is a living person, whereas a mafqd cannot prove whether he is alive or dead.
Therefore, according to them, if the mafqd's father dies, then the distribution of the mafqd's inheritance is mauquf .
until his whereabouts are known conclusively.
That is, if it turns out that the mafqd is still alive and the inheritance has been distributed, then his share is taken from the hands of the heirs who have received it and returned to the mafqd.
If the property has been exhausted, the mafqd cannot sue the heirs who received the inheritance to require its return.
Another case with the Stipulation of the South Jakarta Religious Court No.
911/Pdt.
P/2019/PA.
Js, the determination of heirs is carried out 14 years after the unknown existence.
This determination, if associated with the opinion of the madhhab, is in line with the ShAfi madhhab.
This madhhab argues that in the case of mafqd, the istiuAb argument can be used to obtain new rights.
This means that Mafqd is entitled to inheritance from his family.
If one of the relatives of Mafqd dies, and Mafqd is one of those entitled to inheritance, then, in this case, there is a difference of opinion among the scholars of Jurisprudence.
The majority of scholars of Jurisprudence, consisting of the MAlik.
ShAfi.
Hanbali, az-Zhahiri, and Shi'a Imamiyah madhhabs, think that the mafqd should receive a share of the inheritance by his rights determined Miftakur Rohman.
AuEksistensi Mafqud (Solusi Atas Masa Tangguh Bagi Istri Dan Status Ahli Wari.
,Ay MASADIR: Jurnal Hukum Islam 1, no.
: 1Ae14.
Al-Syamsuddin Al-Syarkhasi.
Al-Mabsuth .
0: Dar al Fiqr.
Beiru.
Yudhistira and Yudhistira.
AuAkibat Hukum Orang Hilang (Mafqu.
Terhadap Harta Benda Dan Penyelesaian Kewarisan Dalam Islam,Ay 131.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 by sharia and kept for delivery when he returns.
45 The reason is that istiuAb al-hal can be used as absolute proof to establish or reject the law, provided no evidence changes it.
He is alive and entitled to inheritance, and his property should not be inherited because he has not died.
The basis for the judge's consideration in determining the heirs in the case of mafqd in Indonesia is Article 71 of the Compilation of Islamic Law (KHI).
Opinions of the Jurisprudence Madhhab, such as the anaf Madhhab.
MAlik Madhhab.
ShAfi Madhhab, and Hanbali Madhhab, based on maslahah according to the Judge's Ijtihad.
The differences of opinion between the two groups above are not significant, but they differ in their application.
For the majority, the mafqd is included in the composition as an heir when dividing the inheritance.
At the same time, the anafs do not include it as part of the composition of heirs.
does not mean he will not receive his share of the inheritance.
it's just that his share is deferred.
The difference stems from their views on istiuAb sifat, namely the enforcement of a trait that previously existed.
In istiuAb sifat, generally called istiuAb al-hal, there are indeed differences of opinion among On the one hand, most scholars argue that istiuAb al-hal can be used to strengthen existing rights and obtain new ones.
Meanwhile, according to the anafs, istiuAb sifat or istiuAb al-hal can only confirm existing rights rather than create new ones.
To regard the missing person as an heir is to discuss and defend his rights.
In this case, they agreed to use istiuAb, which means continuing to consider the missing person alive.
In this regard, both groups of scholars agree.
That is why they have similar opinions on how to treat the disappeared person.
As for his relationship as an heir, it means that talking about the missing person will give him inheritance rights.
The scholars differ in using istiuAb, which means that they differ in their opinion on whether the missing person is alive or dead.
Most scholars who use istiuAb consider that the status of life that existed before must still be applied to him.
therefore, the missing person is still Al-Zuhaily.
AuAl-Fiqh al-Islamiy Wa Adillatuhu,Ay 421Ae22.
Abdul Majid Kurdi.
JumAoatul Latifah, and Noor Lida.
AuMasa Tunggu Bagi Istri Yang Suami Mafqud Dalam Pandangan Imam SyafiAoi Dalam Kitab Al-Umm Dan Ibnu Qudamah Dalam Kitab Al-Mughni,Ay Indonesian Journal of Islamic Jurisprudence.
Economic and Legal Theory 3, no.
2 (April 2.
: 1995Ae2005, https://doi.
org/10.
62976/ijijel.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 declared alive.
Meanwhile, the anafs argue that, in this case, istiuAb cannot be used, meaning that the pre-existing status of life is no longer a consideration for the person's life.
This implies that his inheritance rights are declared non-existent.
Thus, it can be understood that their differences of opinion in ushul have real consequences in the differences in their decisions in matters of Jurisprudence, which in this case determine the rights of heirs.
If the judge determines the death of the mafqd based on evidence, then the date of death is determined based on the evidence.
However, if the decision is based on ijtihad and the judge's conjecture, then there are two scholarly opinions: .
The date of death is calculated on the day he went missing.
Consequently, relatives who died before he disappeared do not get the Relatives who die after he is missing get an inheritance, whether he is alive or dead.
The Malikis and anafs express this opinion.
The date of death starts from the issuance of the judge's verdict.
Mafqd can inherit the property of his relatives who died before that date, and his property can also be inherited by his relatives who were alive at the time the verdict was issued.
The ShAfiyah and Hanbali express this opinion.
According to the majority, other than the anafs, the mafqd inherits from his deceased relatives in his position as an heir.
Suppose the mafqd is the sole heir because he veils the other heirs with the hijab hirman.
The estate is all deferred to him.
If it turns out that the mafqd is still alive, then it is given to him, and if it turns out that he has died, then the property is given to the rightful heir.
But suppose there are other heirs with him.
In that case, there are two possibilities: .
The possibility that he is alive is included as the provisions of shara distribute an heir entitled to receive an inheritance and the property.
The mafqd's share will be kept by his relatives or heirs.
The possibility that he has died, he died after his relatives died, then he gets the inheritance of his Abdi Nugraha et al.
AuKedudukan Hukum Ahli Waris Yang Hilang Menurut Hukum Islam Berdasarkan Putusan Mahkamah Agung No.
0057/PDP-P/2014/PA.
YK,Ay Journal of Law & Policy Review 2, no.
1 (June 2.
: 87Ae94, https://doi.
org/10.
34007/jlpr.
Hasbiah Tunnaim Harahap.
Sukiati Sukiati, and Muhammad Yadi Harahap.
AuYurisprudensi Hukum Mafqud Sebagai Alasan Gugatan Cerai Melalui Putusan Pengadilan (Putusan Nomor 0027/Pdt.
G/2016/PA.
Sro.
,Ay Innovative: Journal Of Social Science Research 5, no.
4 (July 2.
: 88Ae 110, https://doi.
org/10.
31004/innovative.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 relatives, and the inheritance is left to the existing heirs.
Conversely, the mafqd will not receive an inheritance if he dies before his relatives.
For example, suppose the heirs are the missing person's mother, husband, sister and brother.
If it is assumed that the missing person is alive, then the share of the heirs is as follows: .
The mother gets 1/6 because there are two siblings or 12/72.
The husband gets A because there are no children or 36/72.
The sister and brother who mafqd gets the rest of the property: .
The sister gets 1/3 x 2/6 or 8/72.
The brother gets 2/3 x 2/6 = 4/18 or 16/72.
If the mafqd is considered dead, then the division is: .
Mother gets 1/3 = 2/6 in 'aul to 2/8 or 18/72.
Husband gets A = 3/6 in 'aul to 3/8 or 27/72.
Sister A = 3/6 in 'aul to 3/8 or 27/72.
In the settlement of the division of inheritance above, the mother's share there are two possibilities, the smallest to be given first is 1/6 or 12/72 .
f aliv.
, the husband's share is the smallest to be given first is A or 27/72 .
fter di'aul and considered he die.
and the sister to be given first is 8/72 .
f he live.
Thus, the property that is deferred is the right of the missing person in the amount of 16/72 and 9/72, for the possibility of returning after there is certainty later.
If the time limit for waiting has passed, as argued above, it turns out that the mafqd has not returned or there is no news of his death, then scholars differ in opinion about the property deferred to the mafqd.
According to Abu Yusuf, as quoted by Amir Syarifuddin, the deferred property is returned to the heirs who already exist, and there is no provision for the heirs who are mafqd.
This means that missing people are not entitled to inheritance property.
AlKhabari argues that the deferred property is for the missing person because the news is unknown, so the property is given to the heirs of the mafqd.
The person held captive by a disbeliever, although his situation may be like that of a missing person, is discussed separately in the Jurisprudence Ash-Shabuni.
Pembagian waris menurut Islam, 208.
Sancarlous Carlous and Gunawan Djajaputra.
AuImplementasi Hukum Kewarisan Dalam Penetapan Orang Hilang,Ay Jurnal Ilmu Hukum.
Humaniora Dan Politik 5, no.
4 (March 2.
: 3219Ae29, https://doi.
org/10.
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Abdur Rohman Wahid.
AuDistribution of Inheritance Among Different Religions: A Perspective from Islamic Sociology of Law AthoAo Mudzhar,Ay Al-Syakhsiyyah: Journal of Law and Family Studies 7, no.
(June 2.
: 103Ae26, https://doi.
org/10.
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Sholihah.
Widiawati2, and Damit.
AuReinterpretation of Justice in Islamic Inheritance Rights Based on GenderAy.
Roslina Roslina et al.
AuReinterpreting Islamic Inheritance: Supreme Court Jurisprudence and Gender Justice in Indonesia,Ay Jurnal Ilmiah Peuradeun 13, no.
3 (September 2.
: 2339Ae64, https://doi.
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Vol.
No.
June 2026 literature, separate from the discussion of missing persons.
This distinction is because the missing person or mafqd has only one problem: no certainty of Whereas in the case of a captive of a disbelieving enemy, there is the possibility of a second problem arising, namely, the change in the status of the captive into an enslaved person, which is a barrier to inheritance.
52 Regarding the possibility of that difference, scholars differed in their opinions on determining the status of the inheritance of people held captive by the enemy.
According to an-Nawawi in al-Majmu', quoting the opinion of all scholars who equate the position of the person taken captive by the enemy with mafqd, if there is no certainty of his death, he is declared an heir.
His right to inheritance is suspended.
The reason used by this group is that the basis for granting him rights is the generality of verses 11, 12 and 176 of Surah an-Nisa'.
No explanation in these verses limits the captive heirs' right of inheritance.
53 Meanwhile, according to al-Nakha'i, the captive is not entitled to inherit.
The reason is that the disbelievers who took him captive made him an enslaved person, and in that case, he is prevented from inheriting.
The first opinion rejects this reason because the disbeliever cannot be a free person.
It is also explained in al-Umm that there was a debate between Imam ShAfi and a person about the position of apostates, whether it is the same as mafqd, and this was then connected to the issue of inheritance.
55 The man told ShAfi that some of the scholars of the East had ruled that if a person leaves the Muslim community and joins the polytheists, whether as a priest or a military man, he is declared dead.
The result is that everything that pertains to him becomes null and void, such as his wife, property, and enslaved people.
Therefore, his property may be distributed among his heirs, his wife may Noor Harisudin and Muhammad Choriri.
AuOn The Legal Sanction Against Marriage Registration Violation in Southeast Asia Countries: A Jasser AudaAos Maqasid Al-Shariah Perspective,Ay SAMARAH Jurnal Hukum Keluarga Dan Hukum Islam (June 471Ae471, https://doi.
org/10.
22373/sjhk.
Papa Murphy.
Inheritance Laws in an Islamic Society: Islamic Cultures Are Distinct in Everyway .
Universe, 2.
Ibn Qudamah Muwafiq al-Din Abu Muhammad AoAbdullah Ibn Ahmad.
Al-Mughni.
IV (Beirut: Dar alFikr, 1.
Nadhira Imaniyar and Dwi Aryanti Ramadhani.
AuLegal Implications of Determining A Missing Person in Relation to His Rights and Obligations As A Subject of Civil Law,Ay Journal of Law.
Politic and Humanities 5, no.
5 (June 2.
: 3432Ae40, https://doi.
org/10.
38035/jlph.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 remarry after completing her 'iddah .
aiting perio.
, and his slaves may be Their reasoning is based on qiyas, which is that apostates are permissible in blood and may be killed.
This shows that the apostate can be considered dead, even though he is still alive.
This is because Islam makes his blood lawful, and they make the qiyas of apostasy to mafqd.
According to Imam ShAfi, the apostate is not the same as mafqd because the apostate is alive and cannot be said to have died.
Even if it turns out that he has died in a state of apostasy, then his inheritance cannot be distributed to his heirs.
56 This is because Muslims and disbelievers do not inherit from each other, as the Prophet said:
AuMuslims do not inherit from disbelievers, and disbelievers do not inherit from Muslims.
Ay57 The apostate's estate becomes fair property and is handed over to the bait al-mal.
But if he returns to Islam, the property is returned to him.
Finally, the person accepted Imam ShAfi's opinion.
An analysis of mafqd inheritance shows that the differences in opinion among classical scholars stem from their interpretations of the principle of istiuAb al-hal .
resumption of continuit.
and the application of ijtihad in determining the legal status of missing 58 The majority of scholars, such as the ShAfi.
MAlik, and Hanbali schools of thought, argue that the mafqd is still considered alive until there is definite proof of death, so the distribution of inheritance is suspended, while the anaf school of thought gives the judge the authority to determine the death of the mafqd after a specific period of time for the sake of public In Indonesia.
Religious Court judges combine classical school of thought with positive law through the Compilation of Islamic Law (KHI) and apply qadha'i ijtihad to balance fiqh doctrine and practical justice.
59 This approach demonstrates the dynamic character of Islamic law as a living fiqh that is adaptive to social change and the need for justice, so that the settlement Imam As-SyafiAoi.
AuAl-Umm.
Terj,Ay Misbah.
Jilid 5 .
: 78Ae79.
HR.
Mutafaq 'alaih.
Arikewuyo and Olamilekan.
AuApplication of IstiuAb and IstiusAn in Islamic Law of Inheritance: An Analytical Study,Ay 142.
Wikandaru Soni Puspantoro.
AuPertimbangan Hakim Dalam Perluasan Wasiat Wajibah Di Luar Ketentuan Kompilasi Hukum Indonesia,Ay Journal of Law.
Society, and Islamic Civilization/Parental:
Jurnal Hukum Dan Budidaya (October 120Ae120, https://doi.
org/10.
20961/jolsic.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
Vol.
No.
June 2026 of mafqd inheritance cases reflects the moderation of the madhhab and the transformation of Islamic legal thought towards a more humanistic and substantively just direction.
An in-depth analysis of the twelve Religious Court decisions concerning mafqd inheritance demonstrates that judicial differences do not merely reflect adherence to particular classical schools of law, but rather reveal an active process of selective legal reasoning and contextual ijtihAd aimed at achieving substantive justice.
60 Classical juristic disagreements on mafqd primarily arise from divergent applications of istishuAb al-uAl .
he presumption of continuit.
, particularly regarding how long the presumption of life may be maintained without causing harm .
to the rights of heirs and 61 While the ShAfi.
MAlik, and anbal schools generally hold that the mafqd remains legally alive until definitive proof of death emerges, thereby suspending inheritance distribution, the anaf school allows judicial determination of death after a legally reasonable period based on public interest .
The twelve Religious Court rulings examined in this study do not rigidly replicate any single madhhab position.
Instead, judges consistently integrate classical fiqh doctrines with IndonesiaAos positive Islamic law framework, particularly the Compilation of Islamic Law (KHI), through qadhA ijtihAd.
This judicial reasoning is evident in how courts assess the length of the disappearance, the evidentiary circumstances, the socio-economic conditions of the heirs, and the potential harm of prolonged legal uncertainty.
63 In several decisions, judges uphold the principle of istishuAb by delaying inheritance In contrast, in others, they judicially determine death after a Akhmad Khisni.
AuIjtihad Hakim Peradilan Agama Bidang Hukum Kewarisan Dan Kontribusinya Terhadap Hukum Nasional,Ay Jurnal Hukum IUS QUIA IUSTUM 18 .
: 146Ae63.
Arikewuyo and Olamilekan.
AuApplication of IstiuAb and IstiusAn in Islamic Law of Inheritance: An Analytical Study,Ay 142Ae46.
Imam Yazid.
Nurcahaya Nurcahaya, and Fikri Al Muhaddits.
AuConsideration Of Judges Of The Pandan Religious Court In Determining The Status Of The Defendant / Invisible Applicant: Maqashid Al-Usrah Perspective,Ay Jurnal Pembaharuan Hukum 10, no.
2 (December 2.
: 271Ae271, https://doi.
org/10.
26532/jph.
Muhammad ZaAoim Muhibbulloh and Abdul Majid.
AuPerspektif Maqasid Al-ShariAoah Terhadap Ahli Waris Pengganti,Ay Minhaj Jurnal Ilmu Syariah (July 219Ae40, https://doi.
org/10.
52431/minhaj.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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No.
June 2026 substantial period to prevent injustice, reflecting an implicit synthesis of ShAfi caution and anaf pragmatism.
This pattern illustrates what this article conceptualises as madhhab moderation, namely a judicial approach that neither absolutises a single classical opinion nor abandons fiqh tradition altogether.
Instead, moderation manifests through proportional selection .
and contextual adaptation .
alfiq manha.
of madhhab doctrines, guided by the objectives of Islamic law .
aqAid al-shar.
, especially legal certainty .
, justice .
dAla.
, and protection of rights .
ife al-uuq.
Thus, madhhab moderation in these rulings is not doctrinal compromise, but a methodological stance that treats fiqh as a living legal system responsive to empirical realities.
Accordingly, the dynamism reflected in these twelve verdicts signifies a transformation of Islamic legal reasoning within the Indonesian Religious Courts from formal adherence to classical texts toward a substantively just, human-centred application of Islamic law.
Mafqd inheritance cases, therefore, function as a concrete arena in which judicial moderation reconciles normative fiqh authority with contemporary demands for legal certainty and social justice.
Conclusions This study proposes judicial madhhab moderation as a conceptual model to explain how Indonesian Religious Court judges resolve mafqd cases through a dynamic and contextual legal reasoning process rather than rigid adherence to a single school of fiqh.
The findings demonstrate that judges systematically integrate classical fiqh doctrines, particularly istishuAb al-uAl with ijtihAd qasA and maqAid al-shara considerations to achieve substantive justice, legal certainty, and harm prevention for affected families.
Theoretically, this research contributes by positioning maqAid al-shara and judicial ijtihad as a unified analytical framework that bridges normative fiqh and positive Islamic family law, showing Islamic law as adaptive yet normatively grounded.
From a policy perspective, the observed variation in judicial reasoning underscores the Maskur Rasyid.
AuIstiuAb Sebagai Solusi Pemecahan Masalah Kekinian,Ay Syariah Jurnal Hukum Dan Pemikiran 18, no.
1 (June 2.
, https://doi.
org/10.
18592/sy.
Muslimin and M.
Abdul Kharis.
AuIstihsan and Istishab in Islamic Legal Reasoning: Towards the Extension of Legal Finding in the Context of Indonesia,Ay Al-Risalah: Forum Kajian Hukum Dan Sosial Kemasyarakatan 20, no.
(December 2.
: 163Ae79, https://doi.
org/10.
30631/alrisalah.
Justicia Islamica: Jurnal Kajian Hukum dan Sosial.
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June 2026 urgent need for explicit codification of mafqd determination, including standardised waiting periods, evidentiary guidelines, and the formal recognition of modern proof mechanisms, to reduce legal disparity and protect family rights.
Future research should extend this inquiry through thematic and cross-regional analyses of judicial reasoning, particularly focusing on how maqAid-based arguments are articulated in judgesAo legal considerations and their long-term implications for the protection of marital, economic, and inheritance rights in Islamic family law.
Acknowledgement The authors make an exception for use of the AI tools, including ChatGPT, to be used as a linguistic and conceptual aid only.
all determinations about science, data analysis and legal interpretation are at the sole discretion of the AI tools could not contribute to the generation of new ideas, could not be effective in raising such and no use was made of these services in bringing up an original piece, performing legal analysis and establishing sources.
All references were independently verified by each author according to academic rigour standards and COPE Publication ethics.
Disclosure Statement Hamda Sulfinadia conceptualised the research, developed the theoretical framework, designed the methodology, conducted the research, interpreted the data, and led the preparation and revision of the manuscript.
Jurna Petri Roszi revised and contributed to the theoretical refinement, finding validation, and analysis, and contributed to the discussion of the findings.
Syahrul Anwar conducted data collection and supported data analysis.
Amirulhakim critically reviewed the manuscript and translation, ensuring coherence, academic rigour, and adherence to journal standards.
All authors are responsible for the accuracy, originality and then read and approved the final manuscript.
References