PERWALIAN NIKAH ATAS PEREMPUAN MENURUT KHI DAN PUTUSAN MAHKAMAH AGUNG

The issue of marriage guardianship for women has so far been the target of criticism because it is considered not in accordance with the principles of non-discrimination and gender equality; two principles that have been accommodated in the Regulation of the Supreme Court of the Republic of Indonesia Number 03 of 2017. The Supreme Court's decision Number 002 K/AG/1985 does not absolute the issue of guardianship for women. This absoluteness is different from the provisions of Article 19 of the Compilation of Islamic Law (KHI) which positions marriage guardians as pillars, but Article 71 and 107 of the KHI are confused. In its application, there is a disparity in decisions, between those who absolute marriage guardians for women as guardians of lineage and guardians of judges only, those who ratify the types of guardians who are not entitled according to KHI, and those who ratify women's representatives to other people as marriage guardians. This study aims to find out how the Religious Court judges understand the marriage guardianship law for women in the KHI and the Supreme Court Decision, how the method of finding the law is, and how their perception is in its application to the decision of the Religious Court. This research is classified as empirical legal research, carried out on judges of Religious Courts spread across Indonesia, who were contacted via electronic media, taking place from October 2021 to July 2022. The data sources consist of primary data and secondary data, where primary data obtained from respondents and informants as well as resource persons. The sample in this study amounted to 52 judges of the Religious Courts determined by purposive sampling. Collecting data in this study using interview techniques, questionnaires and documentation studies. Data analysis was carried out qualitatively with data processing techniques using descriptive-analytical methods. The results showed the ambiguity of the provisions of marriage guardianship for women in the KHI and the Supreme Court's Decision Number 002 K/AG/1985 gave rise to three patterns of understanding among judges of the Religious Courts: a) marriage guardians as pillars of marriage that absolutely must be fulfilled for the bride when will hold a marriage, regardless of the age of the bride and whatever her status, whether a girl or a widow, b) the absoluteness of the marriage guardian is limited to women who are not yet 21 years old, and c) the marriage guardian as a pillar of marriage can be deviated based on considerations of benefit and not out of opinion fiqh schools. The three patterns of understanding stem from the diversity of methods and rules of legal discovery used in Articles 19, 71 and 107 of the KHI, as well as the rules of Supreme Court decisions. This diversity of understanding has implications for the diversity of perceptions of the application of marriage guardian law for women in the decisions of the Religious Courts. The majority of respondents (55.7%) agree that the application of the rules of the Supreme Court Decision into decisions is more in line with the spirit of the Supreme Court Regulation Number 03 of 2017, but the majority of judges of the Religious Courts (65.4%) consider that the provisions of marriage guardians are still more relevant today. What is applied in Indonesia is the regulation of the guardian of marriage as a pillar of marriage that must be fulfilled for every woman who wants to get married