The Judges’ Legal Consideration on Divorce of Nushūz Cases at the Kupang High Religious Court: Gender Perspective

: The gender sensitivity of judges towards women in court is crucial to ensure that judgments provide a sense of justice and accommodate the rights of wives after divorce. This article aims to analyze judges' considerations from philosophical, juridical, and sociological aspects in divorce judgments due to nushūz (disobedience) from a gender perspective, addressing two main questions: 1) how judges use a gender perspective in deciding divorce cases due to nushūz , and 2) what factors influence judges' decisions in divorce cases due to nushūz from a gender perspective. This research employs qualitative research methods, which is a case study design, with juridical and gender approaches. The primary data source is derived from the rulings of the Religious High Court of Kupang No. 009/Pdt.G/2015/PTA.Kp obtained from the Supreme Court of the Republic of Indonesia's website, and judge interviews as supporting data, which were analyzed using content analysis. The research findings indicate that from a gender perspective, judges exhibit gender bias in categorizing nushūz as if nushūz can only be committed by wives, whereas nushūz can be committed by both husbands and wives. Judges' interpretations of nushūz are still influenced by the content of the law, the culture of the law, and its structure of the law. This study implies that judges should undergo gender-based training or workshops organized by judicial institutions or universities to enhance their gender sensitivity in deciding legal cases, especially nushūz cases.


Introduction
Gender perspective training among judges has not left a mark on their legal considerations. 1This is reflected in the judges' decisions, which often exhibit gender bias when categorizing nushūz (marital discord). 2One of the reasons for this is the lingering influence of conservative jurists' opinions and patriarchal cultural influences. 3In recent years, studies about nusyus have The Judges' Legal Considerations on Divorce of Nushūz Cases 1973 Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahattracted the attentions of the local and global researchers especially in Indonesia.As per the views of classical scholars and modern thinkers on nushūz within families, modern thought aligns more with the principles of equality and justice taught in the Qur'an, making nushūz not limited to wives but also applicable to husbands. 4In line with what Musdah Mulia has stated, nushūz can originate from both spouses. 5Supported by Nur Rofiah, nushūz should not only signify a wife's defiance against her husband but also the defiance of either spouse against the commitment of marriage to maintain peace of mind (sakinah). 6Therefore, there is a need for gender justice in various aspects of judges' decisions. 7espite various studies on divorce and marital discord (nushūz), research related to judges' considerations in nushūz cases at the High Religious Court from a gender perspective remains limited.Existing research has only focused on the reinterpretation of the concept of nushūz through the maqashid asshariah approach by Jasser Auda, suggesting that including nushūz for women as an effort to protect and enhance women's fundamental rights may need to incorporate the concept of nushūz by husbands into Article 84 of the Islamic Marriage Law (Kompilasi Hukum Islam/KHI).This is to ensure that the principles of equality and justice become essential aspects in redefining the concept of nushūz. 8Furthermore, nushūz from the perspective of the gender cosmological theory of Sachiko Murata indicates that the conservative concept of nushūz is influenced by patriarchal culture.Some experts in Islamic interpretation interpret nushūz as infidelity and bad behavior only from wives, even though in contemporary interpretations, nushūz can occur in both wives and husbands. 9A wife should not neglect her obligations to her husband even if Subordinated?The Misrepresentation of the Qur'an in Indonesian Discourse and Practice," Journal of International Women 's Studies, 6, no. 1 (2020), p. 238. 4 Alamsyah, "Rekonstruksi Konsep Nushūz dalam Perspektif Feminis (Reconstruction of the Concept of Nushūz from a Feminist Perspective)," Al-Adalah, 15, no. 2 (2018)  Keadilan Gender 15, no. 1 (2020), p. 42-43. 9 Nely Sama Kamalia, "Konsep Nushūz Perspektif teori Kosmologi Gender Sachiko Murata," Jurnal Hukum Islam dan Studi Keluarga 3 no. 2 (2020), p. 54.Ikhwanuddin Harahap,  "Women's Position in Patriarchal Kinship System," Jurnal Ilmiah Peuradeun 8, No. 1 (2021).
The Judges' Legal Considerations on Divorce of Nushūz Cases 1974 Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahhe has displayed nushūz because there is no such directive in QS.Regarding the implementation of the judgment in cases of nushūz (marital discord) according to Islamic family law in the State of Johor, Malaysia, at the Sharia Court, it is made in accordance with Islamic jurisprudence. Nuūz is categorized as leaving the house without the husband's permission, refusing to have sex with the husband, and not obeying the husband.11 However, in Indonesia, the judge's consideration in nushūz cases resulting from household violence in the Religious High Court is still influenced by a patriarchal culture that considers a wife as nushūz if she leaves the shared home without her husband's permission, which can lead to the misinterpretation of religious permission for a husband to physically harm his wife.12 Existing studies have not accommodated the judge's considerations in nushūz cases from a gender perspective.Therefore, this research will analyze the judge's considerations in a more in-depth manner from philosophical, legal, and sociological perspectives when categorizing nushūz from a gender perspective.
Therefore, this research aims to complement existing studies by introducing three aspects of a judge's considerations in deciding divorce cases caused by nushūz: philosophical, juridical, and sociological aspects from a gender perspective.The philosophical aspect emphasizes truth and justice, the juridical aspect is based on applicable law, and the sociological aspect considers cultural values within society.Consequently, this research poses two research questions.First, how do judges at the Religious High Court in Kupang decide nushūz cases from a gender equality perspective?Second, what factors influence judges at the Religious High Court in Kupang when deciding nushūz cases from a gender equality perspective?The findings of these questions are expected to contribute new knowledge to readers about how judges at the Religious High Court make decisions regarding nushūz cases from a gender perspective and the factors influencing them.
This research employs Mansour Fakih's gender theory to analyze the judge's considerations in uncovering and deeply exploring gender justice values in divorce judgments resulting from nushūz at the Religious High Court in Kupang.Gender justice represents a system and structure where both men and women become victims of this system, particularly within family life.The Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahpresence of gender injustice is marked by the gender role that assesses women as inferior to men.Manifestations of gender injustice can be caused by gender assumptions such as marginalization, subordination, stereotypes, violence, and a double burden. 13Thus, it can be determined whether the judgments contain gender justice values or are solely based on administrative duties and legal certainty.
This research employs a qualitative case study design with both juridical and gender approaches.The juridical approach is used to recognize consistency between constitutional law and other legal principles, while the gender approach involves comparing decisions to assess gender justice and injustice.The primary data source is drawn from judgments of the Religious High Court in Kupang, numbered 009/Pdt.G/2015/PTA.Kp.Data collection processes involve gathering court decisions from the website of the Supreme Court of Indonesia and conducting interviews with judges as supplementary data.The research utilizes content analysis, 14 with the following steps: (1) identifying the legal considerations used by the panel of judges in making decisions, (2) examining the judge's considerations deemed to contain philosophical, juridical, and sociological aspects, (3) analyzing the judge's considerations from philosophical, juridical, and sociological aspects from a gender perspective.

Judges Position Against Nushūz
Before discussing the judge's considerations in the decision of divorce cases caused by nushūz, the following will describe the case description of nushūz that happened at the Kupang Religious High Court in decision number 009/Pdt.G/2015/PTA.Kp, along with the judge's consideration and analysis of gender perspective.

Case Description
The panel of judges of the Kupang Religious High Court, after reading and studying the case file and the original copy of the decision of the First Level Judges Council dated 7 October 2015, Number 23/Pdt.G/2015/PA.Kp granted the husband's divorce request.The Panel of Judges at the Appellate Level 13 Mansoer Fakih, "Menggeser Konsepsi Gender dan Transformasi Sosial," (Yogyakarta: Pustaka Pelajar, 1996), p. 12. Agus Hermanto, "Teori Gender dalam Mewujudkan Kesetaraan: Menggagas Fikih Baru, Ahkam: Jurnal Hukum Islam 5, no. 2 (2017), p. 213.Jawad Syed, "Reconstruction of Gender in Islamic Thought: Iqbal's Vision of Equal Opportunity," Women 's  Studies International Forum, 32, no.6, 2009, p. 435-44.Rachel Rinaldo, "Muslim Women,  Moral Visions: Globalization and Gender Controversies in Indonesia," Qualitative Sociology 34,  no. 4 (2011).Ella S. Prihatini, 2019."Women Who  believes that what is considered in the decision of the Panel of Judges at the First Level is correct and can be fully approved by the Panel of Judges at the Appellate Level.However, The Panel of Judges of the First Level overrides the husband's obligation to provide iddah for his wife.
The Panel of Judges at the Appellate Level needs to improve by adding considerations to its decision because they do not agree with the considerations of the First Instance Panel of Judges.Categorizing nushūz of wife because the wife left home and bring all her stuff without any permission from her husband so that the wife has been deemed to have neglected her obligations.This is evidenced by the husband's confession and witness testimony that the wife has left the residence without her husband's permission, and the wife is no longer serving her husband's needs such as cooking.Therefore, The Panel of Judges of the First Level believes that based on these considerations, the wife is proven to have committed nushūz which resulted in the loss of the right to obtain iddah.According to this information, the wife acknowledged and confirmed that she had left the house due to the following reasons: 1) The wife has been verbally divorced by her husband.
2) The wife has been kicked out by her husband from their house 3) The husband has married to another woman, and it is suspected that he has a child from that woman.
Before the wife left the house, the wife received threats to be killed by her husband.Because he was afraid of the threat, so the wife called her mother (Ny.SC) to come to pick her up.After saying goodbye to his sister-in-law then the wife left the house.The parents of the husband also often interfere in their children's household affairs, and it makes his daughter-in-law feel uncomfortable.The accusation against the wife carrying out the obligations alleged by the husband in the divorce letter is not true.
Based on these facts, it turns out that the wife's departure from home is not without reason.The wife cannot survive in one household because she has been verbally divorced by her husband.Even the wife is threatened with death if she doesn't leave the house, and the husband is considered to have a relationship with another woman.Therefore, the Panel of Judges at the Appellate Level will study the judge's considerations in the Kupang Religious High Court Case Decision as follows:

Considerations of Judges of the Kupang Religious High Court
Three aspects are used by judges in considering the law at the Kupang Religious High Court, namely: philosophical aspects (legal justice), juridical aspects (legal certainty), and sociological aspects (legal benefits).The three aspects mentioned above align with Ahmad Rifai's theory.The philosophical aspect centers on justice, the juridical aspect is primarily based on applicable Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahlaws, and the sociological aspect considers the cultural values that exist within society.15

a. Philosophical Considerations
The basic philosophical considerations used by the Kupang Religious High Court judges in making decisions on divorce cases due to nushūz can be seen as follows: The judges of the Religious High Court in defining nushūz refer to Abd.Al-'Adzim Ma'ani and Ahmad al-Ghundur's; namely leaving the obligations of husband and wife.Nushūz from the wife's side, for instance, left the house without her husband's permission.According to a hadith narrated by Ibn Umar, he said that a woman came to the Messenger of Allah and asked him: "O Messenger of Allah!What is the wife's duty to her husband?"The Messenger of Allah (PBUH) said, "Don't give anything from the house to charity except with the permission of her husband.If she does, then for the husband a reward and the wife a sin.He repeated his question: "O Messenger of Allah!What is the wife's obligation to her husband?"So, the Messenger of Allah replied: "She is not allowed to leave her house unless she has permission from her husband, and she is not allowed to fast according to the Sunnah except with the permission of her husband.
The authors assess the legal basis used from the Prophet's hadith previously is very textual and the opinion of the judges are conservative.When the argument is examined in perspective of maqashid shariah, it is still very textual, and contain gender biases in deciding the cases.The panel of judges do not put men and women equally, so that only one party can categorize nushūz in this case the women without considering the causative factors such as marginalizing the women.
Musdah Mulia said that it is unfair and inappropriate to position women compared to men in nushūz, due to the interpretation that men are more dominant than women.For instance, women who leave the house without their husband's permission are categorized nushūz because it is considered a violation of the existing sharia, on the contrary, this does not apply to men because it gets legitimacy from religious law. 16t should be noted that in the Qur'an, family disharmony is also in the form of i'radh and syiqaq.In Linguistics i'radh means turn away, obstruct, expose, and insinuate.Therefore, i'radh is defined as the turning of the husband or wife from their partner.17Meanwhile, syiqaq means that disputes in the Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahcontext of the relationship can no longer be maintained and have been exposed outside the family environment.The three forms of disharmony have the potential to be carried out by a husband or wife because the word of nushūz in the Qur'an appears twice such as in QS.An-Nisa [4]: 34 and 128, the first verse names women as perpetrators of nushūz, and the second verse mentions men as perpetrators nushūz.
Some forms of nushūz by the husband are being rude to his wife, not having sex and not wanting to give his wife's rights.Nushūz what a husband does to his wife can end up with the husband committing violence against his wife, this is due to misinterpreting the contents in QS.An-Nisa [4]: 34 explains that the husband as the leader in the house is allowed to beat the wife who is nushūz.Consequently, the fact is that currently there is a lot of news about domestic violence, such as physical, psychological, economic, and neglect of the household by husbands. 18Whereas what should be done in dealing with a wife who conducts nushūz is to follow the steps described in QS.An-Nisa [4]: 34 namely advising/communicating, separating from the bed and the last step is beating.
It is understood that hitting to resolve conflicts in the household should be avoided.Even if it is chosen, it should not hurt, but as a form of the importance of changing one and could not be done repeatedly.When hitting is proven unsuccessful to change the wife's attitude, the husband should find other ways.Dealing with a wife who nushūz should be in the form of advice, communication, and separate beds.Those ways can still be accepted and justified.However, the act of beating as a solution, should require reinterpretation due to the many acts of violence against women or wives which are often carried out using the legitimacy of texts whose meanings are no longer acceptable at present. 19n Indonesia, it appears that the concept of nushūz is still influenced by patriarchal culture and discrimination against women.It is proven by Article 84 of the Compilation of Islamic Law which only mentions the concept of nushūz of the wife "when a woman cannot fulfill her obligations as a wife, it is considered nushūz.However, there is no provision for husbands to be considered nushūz when they cannot fulfill their obligations to their wives.This of course shows ambivalence and injustice in law, so the paradigm about nushūz needs to be interpreted under the principles of equality and justice. 20rom the juridical aspect, the judge's consideration at the appellate level is by the value of legal certainty.As juridical normative law which is considered that in principle the purpose of the law is to create legal certainty24 by charging the Appellant to pay the court fees in the amount IDR 150.000,00.
As it is said by Gustav Radbruch and Satjipto Raharjo that good law does not only contain assurance legal but also justice and benefits for the community. 25It was also reinforced by Waber who said that the legal administration of Qadhi-Justice makes law bound by sacred tradition and often a very formalistic interpretation, Even Mark E Cammach highlights Religious Court judges look almost exclusively based on the legal authority issued by the state.This study contradicts the results of the study Stjin Cornelis Van found that the Religious Courts in Indonesia are gender responsive.26

c. Sociological Considerations
The considerations by the panel of judges can be studied and analyzed from the sociological aspect as follows: The consideration of the panel of judges at the appeal level sentenced the husband to give mut'ah to his ex-wife as to pay the goodness and obedience of the wife during marriage.They have been married for four years and gave birth and took care of the child, the chile is 2.6 years old.Therefore, the Panel of Judges at the Appellate Level determines the amount of mut'ah that must be paid by the husband is about IDR 10.000.000,00.
The judge's consideration in imposing mut'ah is based on the social conditions of the parties and is considered not contrary to the law as long as the things requested by the judge are still closely related to the case being handled.Besides that, in this case, the judge has the freedom to use his rights or exofficio right of judges, to keep punishing the husband to give mut'ah to his wife who has been divorced, even though, in the decision at the Kupang Religious High Court the wife has been categorized as nushūz because she has left the house without her husband's permission.
Confirmed by Khatijah Yahyah, judge of the Sengkang Religious Court: "A wife who is treated by means of muasyarah bil ma'ruf and then leaves the house together without the permission of her husband can be categorized as having committed nushūz.However, if the wife leaves the house because her husband has treated her inappropriately, in this case being expelled and even threatened with death, it cannot be categorized as a wife committing nushūz, in Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahthis case it is the husband who has committed domestic violence against his wife." In accordance with existing social realities and to create justice based on legal values in society, the judge at the appellate level can be considered appropriate in giving a decision, by setting the amount of mut'ah to be paid by the husband as much as IDR 10.000.000,00.The determination of the amount of living for the ex-husband is adjusted according to the ability of the husband.27

d. Analysis of Gender Perspective Case Decisions
After examining and reviewing the considerations of the Kupang Religious High Court judges from the philosophical, juridical, and sociological aspects, it is time to look at it from a gender perspective.The considerations of the judge at the first level and on appeal, only judge the aspect of the wife's nushūz, and ignores the husband's nushūz.According to the chronology of the cases submitted to the court which became the reason for the divorce, the wife had left the house.However, the wife's left is not without reason, she has been verbally divorced by her husband, has been kicked out of the house, threatened with death, and the husband is suspected to marry another woman (sirri), and even having children from his marriage.In this case, it is the husband who has committed nushūz; however, in fact, the decision of the court of first instance and the appeal decided by allowing the husband to make a vow of divorce raj'i to the wife by accusation that the wife had committed nushūz.From a gender perspective, wives have experienced marginalization and subordination. 28he judge's consideration from the juridical aspect, the appellant pays the cost of the case is considered following the procedure in court and can be judged to be appropriate and is related to the burden on the husband to pay the iddah's cost according to the husband's ability.Judges are quite gendersensitive in using ex officio's rights (rights due to their position as judges). 29urthermore, the judge's consideration from the sociological aspect, the panel of judges charged the ex-husband to pay mut'ah even though in the philosophical aspect the wife was considered as nushūz.However, the judge still The Judges' Legal Considerations on Divorce of Nushūz Cases 1984 Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarah The Compilation of Islamic Law is the onli article that regulates the wife's nushūz, is article 84 paragraph (1) to paragraph (4) (1) A wife is considered to be nushūz when she does not want to carry out her obligations as referred to in Article 83 paragraph (1) except for valid reasons.
(2) As long as the wife is in a state of nushūz, the husband's obligations to his wife in Article 80 paragraph (4) letters a and b do not apply except for the benefit of their children.
(3) The husband's obligations in paragraph (2) above is applied after the wife is not in the condition of nushūz anymore.(4) Provisions regarding the presence or absence of nushūz from the wife must be based on valid evidence. 39veral articles of nushūz in the Compilation of Islamic Law possibly provide opportunities for husbands to carry out arbitrary acts, because there are legal justifications that strengthen it.The husband seems to have absolute rights and can use his right to accuse his wife of committing nushūz.In classical books, it is said that nushūz is a woman who is suspected of leaving her obligations as a wife because of her hatred for her husband, such as leaving the house without her husband's permission and opposing her husband arrogantly. 40n accordance with the case description contained in the decision of the Kupang Religious High Court No. 009/Pdt.G/2015/PTA.Kp that the wife is categorized as having committed nushūz because she has left the house they live in together.

3) Culture of Law
Legal culture concerns legal behavior in a society.Aspects of legal culture are still strongly influenced by patriarchal values, then get strong legitimacy from religious interpretations. 41The religious interpretation consists of two factors: First, lack knowledge and understanding of the community about religious values that explain the role and position of women; Second, there are still many interpretations of religious teachings that are detrimental to the position and role of women. 42ccording to the decision of the Kupang Religious High Court, which was examined by the authors, the wife was categorized as having committed nushūz because she had left the house without her husband's permission.The Fitriyani, et.al.  DOI: 10.22373/sjhk.v7i3.14425http://jurnal.ar-raniry.ac.id/index.php/samarahwife left the house because her husband had divorced her verbally, expelled even threatened her with death, and the husband has married another woman through sirri way and even has children from his (sirri) marriage.Then the judge's consideration can be assessed on the decision of the Kupang Religious High Court No. 009/Pdt.G/2015/PTA.Kp still subordinates women and ignores the values of gender equality.This is in accordance with the gender construction that has existed so far, especially in Indonesia, which still places men as superior parties and holders of authority, while women as inferior parties, and sometimes become victims of exploitation.Women are conventionally understood as domestic working to take care of children and families who are treated as wives and mothers.Therefore, it is hoped that law enforcement officers will be able to provide an assessment based on sociological considerations to act so that the sense of justice in society can be fulfilled, especially for women.

Conclusion
The results of this study indicate that when giving legal considerations in divorce cases because of the wife's nushūz, the judge is less gender-sensitive in taking the legal basis regarding the wife's nushūz category, as contained in the judge's considerations on the philosophical aspect, the judge uses textual hadith and the opinion of the fuqaha who are still conservative.For gender bias, judges have not used the opinion of contemporary scholars who are more humanist in categorizing a wife's nushūz.The considerations used by the judge in the decision of the nushūz case at the Kupang Religious High Court have three aspects, namely: 1) philosophical aspect (legal justice), 2) juridical aspect (legal certainty), and 3) sociological aspect (legal benefits).Three factors cause gender inequality, namely: 1) Structure of law), 2) Content of law, and 3) Culture of law.As the implication, this research is expected that the Supreme Court of the Republic of Indonesia as the highest authority that oversees the Religious High Court, as a place to seek justice for litigants, and judges who are authorized to decide cases pay more attention to the values of gender justice in making decisions, especially related to family law issues, especially the problem of nushūz.The limitation of the study is that it only analyzes one case related to the wife's nushūz who left the house without her husband's permission so that she does not have the authority to generalize all judges are less gender sensitive.This paper has not discussed gender justice in categorizing a husband's nushūz.Subsequent research will discuss gender justice in the decision of divorce cases due to nushūz at the Religious High Court in Indonesia, and further studies are needed to accommodate more cases and use combined methods in addition to obtaining more comprehensive results as well as more targeted policies.