Woman Rights to Refuse Rujuk: Gender Equity on Islamic Family

Law in Indonesia, Malaysia, and Brunei Darussalam

Mesraini

, Syahrul Adam

, and Ade Irma Imamah

Faculty of Shariah and Law , UIN Syarif Hidayatullah Jakarta

Keywords: Gender Equity, Rujuk, Islamic Family Law

Abstract: The gender equality on Islamic Family Laws perspective still remains as an interesting issue to be discussed.

Those issues still pointing to the growing argumentation on the Islamic its teaching unresponsively to answer

gender equality. Moreover, can be understand that women still stand on subordinate rather than men, hence

their rights has to be the second level. Conversely, on this research result on Rujuk discussion on Islamic

Family law in Indonesia, Malaysia and Brunei will argue its argumentation. Furthermore, those Islamic

countries uphold women rights, for example on Rujuk. The woman have rights to refuse Rujuk. If they still

forced to accept her ex-husband demand, it becomes irrelevant law hence the court has rights to cancel its

decision. The law comparison method was used in this research to compare Islamic Family Law which has

been applied on those three Islamic countries vertically, horizontally nor diagonally thus can be analysed on

gender perspective.

1 INTRODUCTION

Marriage in Islamic Law is often considered as

gender insensitive, such as the problem of matrimony

that see woman as an object of transaction, leadership

within a family, the issue of sexual needs fulfilment,

right of divorce and the issue on inheritance. Other

thing that is considered as having a gender bias in

Islam is the issue regarding rujuk (the reconciliation

between a husband and his wife after the process of

talak raj`î or divorce) without undergoing new

matrimony as the sole right of the husband, as long as

the divorced wife is still in her iddah period.

This right of a husband to reconcile with his

former wife without needing an approval from the

former wife, as explained by many Ulama of classical

fiqh, was regarded as contradictory to the concept of

justice and gender equality. The issue of rujuk is

actually detrimental to the wife because the wife is

considered only as an object by the husband, who has

the absolute right to ask for a reconciliation and

divorce. The question is then whether the marriage

law in the three Muslim majority countries of

Indonesia, Malaysia and Brunei Darussalam are

following classical fiqh thinking strictly, or have the

marriage law experienced a shift along with the rules

of Islamic law that allow changes in law depending

on the changes in place and time.

2 METHODS

This study uses a normative-doctrinal approach,

which is used when discussing the legislation

governing rujuk in the countries of Indonesia,

Malaysia and Brunei Darussalam, if examined from

the perspective of Islamic law and gender

perspective. In addition, this study also employs an

empirical approach, which is used to find out how the

rujuk are practiced today by people in Indonesia,

Malaysia and Brunei Darussalam. The method of data

analysis in this study is to use content analysis and

also comparative law. Content analysis is a method

that analyzes the contents of the regulations regarding

rujuk rights in Indonesia, Malaysia and the State of

Brunei Darussalam, which will be reviewed from the

perspective of Islamic law and gender perspective.

Whereas comparative law is the method analyzing

and comparing a problem will be examined. This

Mesraini, ., Adam, S. and Imamah, A.

Woman Rights to Refuse Rujuk: Gender Equity on Islamic Family Law in Indonesia, Malaysia, and Brunei Darussalam.

DOI: 10.5220/0009919709050912

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 905-912

ISBN: 978-989-758-458-9

905

method is divided into vertical, horizontal, and

diagonal comparisons. Vertical comparison is the

comparison between the concept of Islamic

jurisprudence and marital legislation in the three

countries of Indonesia, Malaysia and the State of

Brunei Darussalam. Horizontal comparison is the

comparison between islamic family law on marriage

in three countries, Indonesia, Malaysia and Brunei

Darussalam. A diagonal comparison is a comparison

that searches for different aspects of rules, between

Indonesia, Malaysia and Brunei Darussalam and the

level of difference.

3 DISCUSSIONS

3.1 The Right of Rujuk in Fiqh

In fiqh, there are some perspectives from the mazhab

Imam regarding procedures on the process of rujuk.

However, these perspectives still have tendency on

gender bias since all of the fiqh school (mazhab)

allow the process of rujuk without the approval of the

former wife. According to the majority of the Ulama

(Hanafiyah, Malikiyah, and Hanabilah), rujuk that

was done by the husband to his former wife when she

was still in her iddah period of talak raj`î by directly

engaging in a sexual act, without any verbal

expressions to do rujuk, is legal.

The differences that arise are there were Ulama

who consider the deeds to be important and there

were Ulama who need intentions or niyyah.

According to Malikiyah, niyyah rujuk or

reconciliation intentions are prioritized for the

husband who is directly doing intercourse with his

former wife. If the husband doing intercourse directly

with his former wife without any intention to do

reconciliation, then the rujuk is not valid, even though

he will not be charged with Had of adultery.

Meanwhile Hanabilah argued that in rujuk, no

intention or niyyah was needed. By simply engaging

in a sexual act with his former wife in iddah period, it

is sufficient to be considered as rujuk even if it was

done without any intention or niyyah rujuk. However,

it is required that the husband truly doing intercourse

directly. If the husband only touched and kissed his

former wife, even though it is accompanied by lust,

the act can not be considered as rujuk. In contrast to

the majority of Ulama, Syafiiyah stated that if the

husband had the desire to reconcile in rujuk with his

former wife of talak raj'î, then the rujuk must be

conveyed in words or by letter first. It is forbidden to

do rujuk by directly ask to intercourse with his former

wife. If the husband ask to intercourse directly, then

he is obliged to pay a moral dowry or mahar mitsil,

because he has done an act of watha' syubhat.

Islam permits the husband to do rujuk with his

former wife in order to improve the relationship

between husband and wife who were previously

cracked and not harmonious, so that by reconcile with

rujuk, their relationship become better and more

harmonious. This is different from the tradition in the

jahiliyyah period (the age of ignorance). In the

jahiliyyah society, the right of the husband to divorce

his wife is without any limits. The husband can

divorce and reconcile with his wife whenever he

wants. Oftentimes, the reconcilliation was made not

on the desire to correct past mistakes, but to prevent

the wife who has been divorced from being able to

remarry with another man. Such conditions resulted

in the divorced wife experiencing harm.

Islam came to correct mistakes and protect the

honor of women who have been disregarded in the

days of jahiliyyah period. According to Islamic

teachings, husbands are prohibited from reconciling

by rujuk with their wives if they intend to abuse their

wives. Therefore, the provisions regarding

reconciliation are regulated thoroughly, as stated in

Quran Surah Al-Baqarah verse 231 that when you

divorce women and they have [nearly] fulfilled their

term, either retain them according to acceptable terms

or release them according to acceptable terms, and do

not keep them, intending harm, to transgress [against

them].

Based on the verse above and also Surah al-

Baqarah verse 228, the fiqh experts (fuqaha) have

agreed that the reconciliation made by the husband in

the iddah period of talak raj'î does not require the

approval of his former wife or her guardian, even

though the wife does not like the reconciliation, the

wife does not have the right to reject it. According to

the fuqaha, reconciliation by rujuk is the absolute

right of the husband during the iddah period of talak

raj'i.

The sentence of  in Quran Surah Al-

Baqarah verse 231 implies that Allah SWT ordered

that the act of reconciliation by rujuk is the right of

the husband and not the right of the wife. According

to Syekh ‘Ali al-Sâyis, a mufassir, in the verse of 

   in Quran Surah Al-Baqarah verse 228

and the word  that was then reinforced with the

words     in verse 231 suggests

that the act of rujuk does not cause harm to the wife.

Aside of those verses, the fuqaha also based their

opinion on the hadith narrated by Muslim that when

Ibn Umar divorced his wife while she was

menstruating and he mentioned that to the Prophet.

The Prophet said: ”Let him take her back”

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Based on this hadith, the Ulama understand that in

the conduct of reconciliation by rujuk, the husband

does not need the consent of his wife or her guardian,

because the Prophet told Ibn ‘Umar to do rujuk

without specifying whether the wife agreed to the

reconciliation or not.

The opinion of the fuqaha described above, asserts

that the former wife does not have any right to refuse

reconciliation from the husband, as long as the

divorce was done within the means of talak raj'i. The

rujuk done by the husband was considered as valid

and they fully returned to the status of marriage even

though the former wife does not approve of it.

3.2 The Rights to Refuse Rujuk in the

Islamic Family Law in Indonesia,

Malaysia, and Brunei Darussalam

There are several laws and regulations governing

marriage in Indonesia, including the Marriage Law

No.1 of 1974, Government Regulation No.9 of 1975,

and Law No.7 of 1989. However, there are no clear

rules regarding rujuk in some of these regulations.

Legislations in Indonesia that regulate the problem of

reconciliation are Law No.22 of 1946 on the

Recording of Marriage, Divorce, and Reconciliation,

and the Compilation of Islamic Law articles 10, 118,

150, and 163-169 which explains the parts genera and

procedures for referring.

In the regulations regarding rujuk, married

couples who have divorced and intend to reconcile

must come before the Head of the Office of Religious

Affairs in the region in which the wife resides with a

reference to do rujuk from the Village Head and a

note from the Divorce Registration Book or Divorce

Certificate. Before the implementation of rujuk, there

are several requirements that must be met, such as:

First, the husband who is doing rujuk must meet the

conditions specified in the munakahat fiqh, which

states that the husband is not an apostate and must be

able to act lawful. Second, the woman he is going to

do rujuk with is his former wife. Third, rujuk must be

done within the iddah period. Fourth, the former wife

agreed to the reconciliation done by the husband.

Fifth, there must be witnesses to the reconciliation

pledge.

Nevertheless, there is a significant explanation in

the implementation of rujuk in Article 164 of the

Compilation of Islamic Law that is different from the

fiqh, stating that "A woman in her iddah period of

talak raj'î has the right to object to the wish of

reconciliation by her former husband in front of the

Marriage Registration Officer witnessed by two

witnesses". Even article 165 confirms that "rujuk

done without the consent of a former wife can be

declared invalid by the decision of the Religious

Court". Therefore the process to refuse rujuk by the

wife is divided into two forms, which are: First, rujuk

refusal can be made by the wife when the intention to

reconcile has not been registered by the authorization

of PPN or P3N. Second, the wife refused to do rujuk

after the reconciliation has been registered by PPN or

P3N.

The rujuk procedure for Muslims in both

Malaysia and Brunei Darussalam does not seem to

have many differences, from registration to rujuk

refusal. In Malaysia, rujuk does not have to be done

in front of the Registration Officer. However, rujuk

done not in front of the authorized officer must be

reported for registration. In Malaysia, this is regulated

in the Islamic Family Law (Federal Territory) 1984

Act section 51 (2) “If, after a revocable divorce,

recohabitation takes place by mutual consent, the

parties shall within seven days report the fact of

recohabitation and other relevant particulars to the

Registrar for the kariah masjid in which they reside”.

Similar regulations were found in the 1999 Brunei

Darussalam Emergency Order (Islamic Family Law)

Article 52 paragraph (1) “If, after a revocable divorce,

recohabitation takes place by mutual consent, the

parties shall within seven days report the fact of

recohabitation and other relevant particulars to the

Registrar for which they reside”.

In Malaysia and Brunei Darussalam, if a husband

does rujuk to his former wife without reporting it to

the Officer where they reside, then they are sentenced

guilty and must be sanctioned. The sanction is

different from one country to another. In Federal

Territory, Negeri Sembilan, Selangor, Pulau Pinang,

Terengganu, Johor, Sabah, Sarawak, and Perlis,

sanctions can be in the form of a fine of RM 500

maximum, or in the form of six months imprisonment

maximum, or both in the form of fines and prison

time. Whereas in Kelantan, Melaka, Perak, and

Pahang, the sanction applied was in the form of a fine

of RM 500 maximum, or in the form of three months

imprisonment maximum, or both in the form of fines

andprison time. Both are also different from Kedah.

In Kedah, the sanction given was in the form of a fine

of RM 300 maximum, or in the form of two months

imprisonment maximum, or both in the form of fines

and prison time.

In relation with the right to refuse rujuk, the 1999

Brunei Darussalam Emergency Order (Islamic

Family Law) article 52 paragraph (8) “If after

recovable divorce the husband pronounces a ruju’ but

the wife has not consented to the ruju’ for reason

allowed by Hukum Syarak, she shall not be ordered

Woman Rights to Refuse Rujuk: Gender Equity on Islamic Family Law in Indonesia, Malaysia, and Brunei Darussalam

907

by the Court to resume conjugal relations, but the

Court shall appoint a conciliatory committee

(Pegawai Khidmat Nasihat Keluarga) to settle the

case”, explains that a woman has the right to refuse

rujuk to her husband's wishes for reasons justified by

the Sharia law. Thus, the Court inducted a Family

Advisory Officer (Pegawai Khidmat Nasihat

Keluarga) as a peace agent to reconcile and settle the

case. In Malaysia, the Islamic Family Law (Federal

Territory) 1984 Act section 51 (9) states “If after

recovable divorce the husband pronounces a ruju’ but

the wife has not consented to the ruju’ for reason

allowed by Hukum Syarak, she shall not be ordered

by the Court to resume conjugal relations, but the

Court shall appoint a conciliatory committee as

provided under section 47 and that section shall apply

accordingly”, that if the wife refuses to live together

again for reasons justified by the Sharia law, the

Court may not force the wife to accept rujuk.

Furthermore, the Court must induct a Reconcilliation

Committee (Jawatankuasa Pendamai) to settle the

case.

Thus, Indonesia, Malaysia, and Brunei

Darussalam each have their regulations regarding the

ability of the wife to refuse rujuk and give the wife

the freedom of opinion.

3.3 The Shifting on Gender thought in

Islamic Family Law on Marriage:

A Comparison Analysis

As described above, there is similarity and at the

same time diametric difference between the opinions

expressed by the fuqaha and the laws and regulations

of Islamic families in Indonesia, Malaysia, and

Brunei Darussalam. The similarity lies in the way

both the Islamic family law in these three countries

and the opinion of the fuqaha place the right to do

rujuk as the right of the husband. Meanwhile, the

difference between the fuqaha and the Islamic family

law in Indonesia, Malaysia, and Brunei Darussalam is

on the involvement of the wife in whether to accept

or refuse the offer to do rujuk.

In the perspective of fiqh, women do not have the

right to refuse rujuk and must accept to recocile

whether they like it or not. However, the regulations

in all three countries seek to give the rights to the

husband and wife in an equal manner, which is a

contemporary view that is different from the classical

school of fiqh, resulting in significant conceptual shift

from fiqh to legislation.

The policy to give rights to women can actually

be understood from the initial essence of marriage, in

which it must be based on the agreement of both

parties who will become husband and wife.

Moreover, the rujuk done after the divorce are almost

certainly caused by disharmony in the household. If

the status was forced to be returned to a legal marriage

without the consent of the wife, then that means that

the household is rebuilt in an atmosphere that is not

harmonious and will be very vulnerable to another

separation again. Indeed, the iddah period of talak

raj'i was meant to be a period to rethink whether the

marriage that has been called off will be permanently

offed by the means of divorce or will it be rebuilt

again to reconcile the household. If there is a strong

intention to reconcile (rujuk), the regulations in

Indonesia, Malaysia and Brunei Darussalam require

the approval of the former wives. The requirement of

the approval means that the former wife is given the

right whether to accept the rujuk and return to a legal

marriage status or to refuse it. The wife can consider

whether reconciliation will be more beneficial for her

or not.

When viewed in terms of whether there are

changes in the benefit or not, then the right to refuse

rujuk is among the Maslahah al-Mutaghayyîrah,

which is the benefit that changes according to

changes in place, time, and subject of law. In order to

realize the benefit of humans in the world and in the

hereafter, the benefit can be realized if the five basic

elements can be maintained and realized. Therefore,

the review of cases regarding rujuk refusal must be

carried out by Religious Court Judge in Indonesia or

a Sharia Court Judge in Malaysia and Brunei

Darussalam to ensure fair rights for the husband and

wife.

The right to refuse rujuk given to the wife through

legislation in Indonesia, Malaysia, and Brunei

Darussalam indirectly provides protection against

religion, mind, reason, descent, and property. As

stated in fiqh, that refusing harm takes precedence

over taking benefit.

Thus, thinking about the possibility of the harm

(mafsadat) is more prioritized than thinking about

things that are of benefit. It can be concluded from

this postulate, that the right of the wife is much more

preferred because the wife herself, and not someone

else, knows about the benefit and harm the she will

face regarding whether she accepts or refuses the

offer of reconciliation.

From a gender perspective, what is stated in the

legislation concerning marriage in Indonesia,

Malaysia and Brunei Darussalam has long shifted

compared to the opinion of classical school of fiqh

which does not give women the right to refuse rujuk

and are obliged to accept it and the rujuk is considered

valid even if the wife refused it.

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However, ultimately gender inequality can occur

in both women and men. But most cases of gender

injustice often occur in women, so like gender looks

a form of women the face. The opinion of ulama

which states that the consent of the wife is not needed

seems to cause forms of discrimination that often

occur in women, among them:

First, women's age (subordination) often occurs in

many ways, making especially in decision because

are considered women as irrational and emotional

beings. Tradition, customs, rules state and religion

even are often used an excuse women to subordinate.

The opinion of the jurists that it is not necessary to

approve the wife in reconciliation, seems to show

women subordination. So, that there is no opportunity

for the wife to give a decision related to being yelled

at or rejected

Second, labeling (stereotype) is a negative labeling

that results in various kinds of injustice. This doesn’t

happen to alone women, men, ethnicity, and certain

religions experience can it.

According the law, in this reference the wife does not

have the right slightest let her opinion alone. This

labeling applies only to husbands because referring is

the right absolute of the husband. If investigated have

to husband and wife equal rights in any case, both in

the family, social and community.

Third, violence (violence) that is violence occurs

to women is very diverse, ranging from verbal

violence (such as whistling, teasing), sexual violence

(such as rape) and so on. One of the reasons wives

refuse to refer former husbands is because of the

consequences of violence both verbal violence,

physical violence, psychological violence, or sexual

violence. The reasons can be that accepted by the law

or sharak law are violence caused by other people or

a married couple.

The shifting Islamic legal thought regarding the

consideration of women's right in the matter of rujuk

should be appreciated as an adjustment of Islamic law

to the recent time demands and benefit considerations

in building a household. The Ulama in the three

countries of Indonesia, Malaysia, and Brunei

Darussalam are actually very strong in adhering the

fiqh, but the demands of ijtihad which are more in line

with the thinking and development of various aspects

that surround them are also being considered, so there

is a courage to be more forward-thinking and take a

different step from the the opinion of classical school

of fiqh while still keeping in mind the rules in

formulating Islamic law, such as " al hukmu yaduru

ma’a al-illati wujudan au `adaman" (the law will

change according to the legal illat surrounding it).

Moreover, the authority to refuse rujuk stated in

the legislation is a step forward by the state in

defending the women's right in Indonesia, Malaysia,

and Brunei Darussalam in order to protect and fulfill

the basic rights of married couples, especially

regarding the need for wife approval in reconciliation

process. If everyone was equal, then there should be

no discriminatory treatment. Thus, the state becomes

the main legal subject as a duty holder responsible for

protecting, upholding, and advancing human rights

both nationally and internationally.

The Religious Courts in Indonesia and the Sharia

Court in Malaysia and Brunei Darussalam are a form

of access to Justice from the government, stating that

all citizens of Indonesia, Malaysia, and Brunei

Darussalam are entitled to access the Court and obtain

justice. This is in accordance with the principle of

positive obligation which stated that a country must

not intentionally ignore the rights and freedoms of its

citizens; on the contrary the state must actively

protect and ensure the fulfillment of rights and

freedoms. This is line with Article 7 of the Universal

Declaration of Human Rights that all people are equal

before the law and are entitled to the same legal

protection without discrimination. This is a form of

renewal the women of position in the fields of

religion, social, economic, political, and so on.

Table 1: Comparison analysis between Islamic Family Law

in Indonesia, Malaysia and Brunei Darussalam.

Point of

comparison

Fiqh

Indonesian

Islamic

Family Law

Malaysia

n Islamic

Family

Law

Brunei

Darussalam

Islamic

Family Law

Former

Wife Right

Former

wife has

not the

right to

refuse

rujuk

Former wife

is given

chance to

refuse rujuk

Former

wife is

given

chance to

refuse

rujuk

Former wife

is given

chance to

refuse rujuk

Regulation

Strength

Permanen

tly from

the qur’an

and

Sunnah

Not yet in

permanent

law

Permanen

t law

Permanent

law

Woman Rights to Refuse Rujuk: Gender Equity on Islamic Family Law in Indonesia, Malaysia, and Brunei Darussalam

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Point of

comparison

Fiqh

Indonesian

Islamic

Family Law

Malaysia

n Islamic

Family

Law

Brunei

Darussalam

Islamic

Family Law

The Method

of Rujuk

Accordin

g to the

majority

of the

Ulama

rujuk that

was done

by the

husband

to his

former

wife

when she

was still

in her

iddah

period of

talak raj`î

directly

engaging

in a

sexual

act,

without

any

verbal

expressio

ns to do

rujuk, is

legal

Rujuk must

done

verbally (bi

qauli),

in front of 2

witness and

supervised

directly by

Employee

Marriage

Registrar

and must

listed on

KUA

Rujuk

must be

done

verbally

(bi qauli),

before 2

witnesses

and not

necessaril

must be

watched

directly

Registrar.

Although

rujuk

musn’t do

in front of

Registrar,

however

rujuk

has to be

reported

and noted

Registrar

Rujuk to

must be

done

verbally (bi

qauli), in the

presence of

2 witnesses

and not

necessarily

must be

watched

directly by

Registrar.

Although

rujuk musn’t

do in front

of Registrar,

however

rujuk that

has to be

reported and

noted to

Registrar

Sanction

sanctions

There are no

sanctions for

those who

not register

rujuk

Penalties

are not

exceed

500

ringgit

and

prison

does not

exceed 6

month

Penalties not

exceeding

1000 ringgit

Dollar

Brunei and

prison does

not exceed 3

month

From the table above, there are legal similarities

and differences about regulations from each country.

There are differences between the jurists and these

three countries including about the ability of the wife

to refuse rujuk from the husband, the procedure for

rujuk and sanctions for husband and wife who do not

report the rujuk.

Imposition of sanctions for couples who do not

report their rujuk, such as Malaysia provides

sanctions in the form of fines of not more than five

hundred ringgit and prison sentences not exceeding 6

months and / or both. This statement contained in

article 51 paragraph (5) “Any party to a marriage who

fails to report the fact of recohabitation as required by

subsection (2) commits an offence and shall be

punished with a fine not exceeding five hundred

ringgit or with imprisonment not exceeding six

months or with both such fine and imprisonment”

concerning the implementation of referrals in Family

law Islam, Act 1984. Then, sanctions imposed by

Brunei Darussalam are in the form of fines do not

exceed one thousand ringgit and imprisonment does

not exceed 3 months funds know both, this statement

contained in article 52 paragrah (4) “Any party to a

marriage who fails to report the fact of recohabitation

as required by subsection (1) commits an offence and

shall be punished with a fine not exceeding one

thousand ringgit or with imprisonment not exceeding

three months or with both such fine and

imprisonment”. For Indonesia, there are no sanctions

imposed when a married couple does not register and

report the rujuk before Marriage Registration Officer,

the Marriage Certificate is still held in the Office of

Affairs Religion. So that in the state data even the

husband and wife status is still in divorce status, then

the referrals made are referrals that are not recorded.

In carrying out rujuk procedures in Indonesia,

Malaysia and Brunei Darussalam seems to strengthen

Imam Syafi'i's opinion that reconciliation must be

conducted verbally and two witnesses. Then there is

social indulgence in each country, in Indonesia the

rujuk is done verbally, two witnesses, and registered

at the Office of Religious Affairs. Likewise with

Malaysia and Brunei Darussalam rujuk must be

recorded and witnessed by two witnesses but inside

the implementation does not have to be in the

presence of Registrants.

The countries of Indonesia, Malaysia and Brunei

Darussalam make rules about rujuk this not without

reason. Rather it aims to align rights women to realize

justice. In harmony with the main objectives carry out

Islamic law which is to realize human benefit, which

is where human benefit will continue to change and

increase according to progress of the times.

Looking at the lives of women in Indonesia,

Malaysia, and Brunei Darussalam, each has a social

and cultural difference adopted. Likewise, with the

legislation, especially regarding marriage that many

regulate the rights and obligations of husband and

wife that must be obeyed. Laws and cultures that live

in society (living law) are closely related like two

sides of a coin that cannot be separated. Catherine

MacKinnon emphasized that the state is more male

and fights for men.

When viewed from the standpoint of gender

equality that all people regardless of how the

background has similarities in opportunities, access,

participation or involvement in a productive activity.

However, in reality, especially in the context of

gender equality, the different roles of status, gender,

often prevent a person from accessing basic rights.

When talking about women in law, it is necessary to

understand that law is a product of social and cultural

dynamics. Noryamin Aini quoted Lawrence

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Friedmaan's argument which emphasized that the

effectiveness of law enforcement is determined by

three interrelated things, namely substantive (material

aspect), structural (institutional) and cultural

(cultural).

Problems related to marriage law are a problem

that has become a debate among experts on Islam.

One of them is the right of rujuk by the wife, which is

regulated by these three countries, which does not

intend to reduce the rights of the husband but to try to

regulate the interests of each party to be protected.

These three countries have the same goal of

protecting women, so it can be seen which laws of the

country prioritize women in rujuk rights, namely:

 The provisions rujuk in the Compilation of

Islamic Law in Indonesia are one form of

protection for women. This is based on the

Compilation of Islamic Law article 79

paragraph (2) that the right and position of the

wife is balanced with the rights and position of

the husband in domestic life, and the

association of living together in society. Then

in reference, women are given the right to

consider their opinions. Judging from the

stretching of gender, Indonesian women seem

to be very enthusiastic about this one study so

that gender-sensitive education stands a lot and

becomes the spotlight of Muslim women in

Indonesia. Rujuk regulations regulated by the

Compilation of Islamic Law, show that the

legislative hierarchy gives the power that Law

No. 1 of 1974 concerning Marriage has

permanent legal force. Likewise with the

Compilation of Islamic Law, although it does

not have permanent legal force, it is used as a

reference by judges in the Religious Courts in

deciding a case. This is appreciated by women

in Indonesia because they have made a large

contribution especially in the right of rujuk

refusal.

 In Malaysia, Muslim women are given the

same legal rights and protection, one of which

is the right of refusal of rujuk and impose

sanctions in the form of punishment or fines for

couples who do not report their rujuk. This

rujuk regulation is one of the legislative forms

of Islamic family law, namely Status, both in

the form of Deed, Energy and Ordinance. The

reference itself is a rule of the Islamic Family

Law (Federal Territories) Act 1984 which is a

legal product that is a model for the enjoyment

of Islamic family law, in terms of position even

the statute has strong legal force and can be

used directly in making decisions in court.

Therefore, Muslim women in Malaysia get

state protection in the form of reconciliation

rights and Malaysian women are also sensitive

to gender bias. Evidenced by the existence of

women's groups namely Sisters in Islam (SIS),

Malaysia also became a country that did not

escape the attention of women in order to get

their rights.

 The State of Brunei Darussalam makes Syafi'i

School a reference and guideline by the

government and society because it is

considered the most flexible and representative

and can be accepted by all people of Brunei

Darussalam well. Women begin to get special

attention from the government in the right to

refuse reconciliation, women or wives are

given the opportunity to consider rujuk

submitted by their husbands. Then as with

Malaysia, Brunei Darussalam added sanctions

in the form of fines or imprisonment for

couples who did not report their rujuk. As

Muslim women in Brunei do not have to use

the veil / burqah, provided that the existence of

the woman does not cause harm. Therefore, it

also appears that women are positioned

moderately not restricted in their territory.

Evidenced by the number of women in Brunei

who work outside the home; as state officials,

soldiers (askar), instructors (directors), banking

employees, hotel workers, even many who

serve as ministers and assistant ministers in the

kingdom. There does not appear to be a stretch

of gender and gender education in this country.

Brunei women listen more to the king's decree

as long as it brings good to him. Basically

living in Brunei is very comfortable for

women, crime rates are very low, even because

of the high level of security so women are free

to go out for a walk until 12 pm without

worrying. The police (Asykar) will continue to

patrol and will warn of the possibility of a

hazard. From the explanation above, it can be

seen that Malaysia is more gender sensitive

towards women. With the permanent legal

power it has over rujuk regulations, it will

provide more legal certainty for women.

The data diagonal analysis above indicated that

Brunei Darussalam have shifted farther than another

country from the point of departure in fiqh school.

Malaysia in the second position and the last position

is Indonesia. Indonesia have note obligate the women

right to refuse rujuk in permanent law until now but

Woman Rights to Refuse Rujuk: Gender Equity on Islamic Family Law in Indonesia, Malaysia, and Brunei Darussalam

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still in the president instruction, Compilation of

Islamic Law.

The promulgation of the opinions of the jurists in

these three countries shows that the ulama in these

three countries are very concerned about gender

issues in considering ijtihad in the field of law. They

dare to take a different position from the opinions of

the jurists because of different conditions and times.

If all legal products carried out pay attention to the

latest conditions, then it is very possible that all

Islamic law products will be far from gender bias.

4 CONCLUSIONS

The shifting ideas related to gender perspective in the

regulation on family law in Indonesia, Malaysia, and

Brunei Darussalam, specifically regarding the right to

refuse rujuk for women, confirms that Islamic law is

very dynamic and constantly changes from time to

time in accordance with the demands of human needs

and not as static as in the opinion of many people.

Indeed, the differences in the results of ijtihad in

Islam are common and were not a disgrace.

Especially when Islamic law has been incorporated

into state law, the results of contemporary ijtihad

while still paying attention to the references to the

thoughts of fiqh scholars then are urgently needed so

that Islamic law does not lose its essence.



Therefore, the principal of implementing to relize

Islamic law is human benefit. Human benefit will to

change continue and in accordance increase with the

progress of times. It’s clear that the purpose of

Islamic law the lowering is for the interests,

happiness, welfare and safety of mankind in the world

and in the hereafter.

REFERENCES

‘Ali Hasballah, Ushûl al-Tasyrî ‘al-Islamî, Dâr al-Ma’ârif,

Kuwait. 309.

Ahmad Mukri Aji, Urgensi Mashlahah Mursalah dalam

Dialektika Pemikiran Hukum Islam, Pustaka Pena Ilahi,

Bogor, (2011) 43.

Ahmad Tholabi Kharlie, Modernisasi, Tradisi dan Identitas:

Praktik Hukum Keluarga Islam Indonesia, Studia

Islamika Indonesia Journal For Islamic Studies. (2011)

167.

Cetherine A. MacKinnon, Toward a Feminist Theory of the

State, Harvard University Press, Cambridge. (1998)

163.

Dede William-de Vries, Gender Bukan Tabu: Catatan

Perjalanan Fasilitasi Kelompok Perempuan di Jambi,

Center for International Forestry Research (CIFOR),

Bogor, (2006) 22.

Euis Nurlaelawati, Arskal Salim, Gendering The Islamic

Judicary: Female Judges in the Religious Court of

Indonesia, Al-Jamiah Journal of Islamic Studies, Sunan

Kalijaga State Islamic University. 51(2) (2013).

Muhammad ‘Alî al-Sâyis, Tafsîr Ayât al-Ahkâm, 139.

Marhumah, The Roots of Gender Bias: The Roots of

Gender Bias: Misogynist hadiths in Pesantrens, Post

Graduate Program IAIN Salatiga. 5(2) (2015) 295.

Muhammad Jawad Mughniyah, al-Ahwâl al-Syakhshiyyah,

Dâr al-‘Ilm, Beirut, (1964) 160.

Noryamin Aini, Diskursus Hukum Feminis, Gender dan

KTP, Potret Perempuan dalam Teori dan Realitas

Meretas Paradigma Kesetaraan, PSW UIN Jakarta,

Jakarta. (2007) 8.

Nuril Hidayati, Ashfa Fikriyah, Perempuan dan Politik:

Antara Cita dan Fakta Studi atas Peran Perempuan

dalam Pembangunan di Brunei Darussalam, Jurnal

Realita, (14)(1) (2016) 111.

Raihanah Abdullah, Rujuk: Peruntukan Undang-undang

dan Pelaksanaanya di Malaysia, Shariah Journal,

Academy of Islamic Studies University of Malaya

(2010) (25-52).

Rhona K.M. Smith, Hukum Hak Asasi Manusia, PUSHAM

UII, Yogyakarta. (2008) 38-39.

Siti Ruhaini Dzuhayatin, Gender dalam Tatanan

Internasional dan Nasional, dalam Agama, Politik,

Global dan Hak-hak Perempuan,(Ed) Din Wahid dan

Jamhari Makruf, PPM UIN Jakarta & British Embasy,

Jakarta. (2007) 5.

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912