INTERPRETATION OF JUDGES TOWARD FASID AND BATIL MARRIAGE

Abstract

Legal marriage in Islam is in accordance with the pillars and conditions. The pillars and conditions are fulfilled, then a marriage is considered as legitimate. This research will look at several court stipulation and decisions relating to this matter. Stipulation of Religious  Court of Bangli Number 01/Pdt.P/2011/PA.Bgl, Decision of Religious Court of Denpasar Number 50/Pdt.G/2011/PT.Dps Stipulation of Religious  Court of Polewali Number 93/Pdt.P/2016/PA.Pwl, Stipulation of Religious  Court of Banjarbaru Number 80/Pdt.P/2017/PA.Bjb, Stipulation of Religious  Court of Banjarbaru Number 179/Pdt.P/2017/PA.Bjb, Stipulation of Religious  Court of Number 182/Pdt.P/2017/PA.Bjb, Decision of Religious Court of Pekanbaru Number 0042/Pdt.G/2017/PTA.Pbr.

The stipulation and decision are different  in material requests and claims, but the focus is on the interpretation of judges about the legitimacy of marriage, which then discusses fasid marriage and batil marriage. A broken marriage because the pillars and conditions are not appropriate. The judge views the greatest importance, namely the interests of the child so that in his decision, even though the marriage is fasid  the child remains legitimate child. According to researchers in the stipulation and decision there are marriages that should be interpreted as batil, but interpreted as fasid. The judge interprets all illegitimate marriages as fasid marriages even though they are supposed to be batil. Because what is not fulfilled is the pillar. The judge uses the views of the Hanafi madzab to interpret. The judge does this because he emphasizes the best interests of the child so that no child is considered child out of marriage. The judge only thinks about the interests of the children civil rights  that are born in illegitimate marriage. The judge in deciding also put forward the sharia maqasid. Judges here use teleological interpretations as well as extensive interpretation by expanding the meaning of fasid marriage.