Marriage Dispensation Provision in the Pregnant Situation Based on Maqashid Al-Shariah Perspective (Case Study of Malang Religious Court)

Abstract

In a marriage dispensation rules in Act No. 1 of 1974 on the marriage did not mention what  can be used as the basis for an important reason, such as an urgent need for the sake of the family, then the dispensation can be given. Due to the failure to mention an important reason, then easily just everyone getting dispensation such that every law also serves to protect human benefit by grasping the principles which not only protects human benefit individually, but also human welfare in the family, community, people and nature as well as the concept of Maqasid al Syariah. Researchers will explore the consideration of the judge regarding the granting of marriage dispensation. Therefore, the researchers used field research with qualitative approach by means of direct interview to the informants and the literature of several books. From the research, it is known that judges of Malang Religious Court that the considerations underlying the granting of marriage dispensation in the state of pregnancy is an element of urgency and welfare. Then, when viewed from the concept of Maqasid al-shariah that granting the dispensation of marriage has put the four points of the Maqasid al-shariah. Namely, ḥifẓ nasl, ḥifẓ nafs, ḥifẓ aql, ḥifẓ maal. While ḥifẓ din adultery should receive legal punishment as a lesson to the perpetrators and others.