تنمية المساواة بين الجنسين فى أحكام الأسرة بإندونيسيا: قضية الولي والشاهدين فى النكاح

Abstract

There are so many problems that can be found in Islamic Family Law viewed from modern
approach especially gender equality. Starting from the rule of marriage guardian that controlled by
men, inheritance dominated by men, and also all the provisions concerning the witnesses which
weakens the existence of women. In Indonesia context it, is important to analyze the problem of
guardian and witness of marriage through the maqashid asy-syari’ah and will find the solution where
the guardian of marriage is the primary element in order to guard of honor and about witness of
marriage as a secondary element that has the function as the main purpose of marriage. Based on
that classification, it was found that the primary element about the guardian and the secondary
element about witness of marriage, it led significant difference between the Arab and Indonesia
context. Therefore, reforms are needed in the Islamic Family Law through the cultural approach
so it can be responsive in Indonesia. In the Arab culture is patriarchal (patrilineal) master, while in
Indonesia there are multi kinships complex such as patrilineal, matrilineal and bilateral, it implies
the need reformations that bring the solution accordance with the local wisdom of Indonesia for
the instance the implementation of gender equality openly.