Harmoko, Harmoko (2022) Fatwa Yusuf Qardhawi Tentang Nikah Misyȃr Ditinjau dari Hukum Positif dan Urf. Tesis, Pascasarjana.

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ABSTRAK

This study is entilted “Yusuf Qardhawi’s Fatwa Regarding Misyȃr Marriage in View of Positif Law and Urf.” Misyȃr marriage is a marriarge in which the conditions and pillars are met, but the husband is tanazul to his wife. The purpose of this study was to find out the fatwa on the permissibility of misyȃr marriage by Yusuf Qardhawi, wen viwed from the perspective of Positif law that applies to Indonesian society. This research is deemed necessary, seeing that misyȃr marriage has become a polemic among contemporary Ulama. Some Ulama agree with Yusuf Qardhawi by punishing “permissible”. Some Ulama have condemned it as “haram” to do so. Some other scholars are tawaqquf and do not comment on the law. Yusuf Qardhawi is a mufti in the country of Qatar who from Egypt. Many of his fatwa are related to contemporary issues, which are written in various books so that they are easy to become references. One of his books is “Zawaj Almisyar Haqiqatuhu Wahukmuhu” which is ised as tha primary legal material in the research. Yusuf Qardhawi defines misyar marriage that fulfills all the conditions and pillars, but the husband does not give birth to the second wife on his agreement (tanazul). The existence of this tanazul has become a polemic for the pros and cons. The husband’s obligation to support his wife is a consequence of the validity of a marriage contract. This has been explained explicitly in the Qur’an and hadth. In Positive law, namely the Marrriarge Law, it is found in Articles 30-34, in KHI Articles 80-84. According to urf in Indonesia, marriage is walimah, the husband provedes for the wife, lives togther, and takes care of the household together. Don’t just come to provide for your wife and then leave again. After analyzzing by reviewing and revewing existing references, and understanding according to the author’s understanding, then the author concludes. There are two conclusions in the study. First, misyȃr marriarge according to positive law, the contract is valied, but the husband does not carry out the obligation to provide maintenance at birth, of polygamy does not fulfill the conditions of being capable and fair. This is certainly contrary to positive law. Second, according to urf misyȃr marriage is very unusual in the general public, if it is done it is prone to slander, harming the wife and cildren of misyar, and other negative implications. The outhor follows the opinion of scholars who forbid this misyȃr marriage.

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