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Downloaded from the Directorate of Religious Court Body’S Website At Distribution Agreement In presenting this thesis or dissertation as a partial fulfillment of the requirements for an advanced degree from Emory University, I hereby grant to Emory University and its agents the non-exclusive license to archive, make accessible, and display my thesis or dissertation in whole or in part in all forms of media, now or hereafter known, including display on the world wide web. I understand that I may select some access restrictions as part of the online submission of this thesis or dissertation. I retain all ownership rights to the copyright of the thesis or dissertation. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. Signature: ________________________ ______________________ Mohamad Abdun Nasir Date Islamic Law and Social Change: The Religious Court and the Dissolution of Marriage among Muslims in Lombok, Indonesia By Mohamad Abdun Nasir Doctor of Philosophy Graduate Division of Religion West and South Asian Religions ______________________________ Vincent J. Cornell, Ph.D. Advisor ______________________________ Abdullahi A. An-Na’im, Ph.D. Committee Member ___________________________ Joyce B. Flueckiger, Ph.D. Committee Member ___________________________ Michael G. Peletz, Ph.D. Committee Member ___________________________ Gordon D. Newby, Ph.D. Committee Member ____________________________ Devin J. Stewart, Ph.D. Committee Member Accepted: ________________________________ Lisa A. Tedesco, Ph.D. Dean of the James T. Laney School of Graduate Studies __________________________ Date Islamic Law and Social Change: The Religious Court and the Dissolution of Marriage among Muslims in Lombok, Indonesia By Mohamad Abdun Nasir B.A., State Institute for Islamic Studies (IAIN) Semarang, Indonesia, 1998 M.A., State Institute for Islamic Studies (IAIN) Semarang, Indonesia, 2002 M.A., Universiteit Leiden, The Netherlands, 2004 Advisor: Vincent J. Cornell, Ph.D. An Abstract of A dissertation submitted to the Faculty of the James T. Laney School of Graduate Studies of Emory University in partial fulfillment of the requirements for the degree of Doctor of Philosophy In the Graduate Division of Religion West and South Asian Religions 2013 Abstract Islamic Law and Social Change: The Religious Court and the Dissolution of Marriage among Muslims in Lombok, Indonesia By Mohamad Abdun Nasir Divorce suits initiated by Muslim women (cerai gugat) constitute the greatest number of legal cases filed before the religious courts in Indonesia. In recent years, women who sued their husbands for divorce have outnumbered men who repudiated their wives and registered the repudiation in the religious courts. Fifty-five percent of family disputes brought before the religious courts from 2007 to 2009 in Indonesia were concerned with gugat divorce. This dissertation focuses on case studies of the Islamic family law of divorce and examines gugat divorce cases in one local religious court in Central Lombok, Indonesia. It examines the dynamics of Islamic law and legal reform, legal awareness, and gender and power relations that influence the ways in which the laws regarding divorce are (re)interpreted and contested among litigants and judges. It also analyzes how such contestations shape the nature of Islamic divorce in contemporary practice. The dissertation draws its information from case studies of marital disputes, courtroom discourses of Islamic law, and litigants’ strategies in negotiating divorce. It also analyzes the procedures and legal sources used by the court and the strategies of judges in dealing with gugat divorce. Three main conclusions are argued in this dissertation. First, the incorporation of the Shari’a law of divorce into state law transfers Islamic legal authority from the hands of Muslim religious scholars to the state. However, this does not occur without opposition from the traditional scholars. They often challenge the legitimacy of the state to determine what Islamic law is. Second, the law of gugat reconfigures unbalanced gender and power relations between Muslim spouses and enables women to acquire greater access and power in marital dissolution. Third, although Shari’a law theoretically becomes more rigid when transformed into state law, in practice it remains fluid. While fiqh and customary norms continue to be important sources of legitimacy for marriage and divorce of Muslims in Lombok, the reinterpretation of Islamic law by the state and its reintroduction through the courts offer more room for negotiating disputes among litigants. Islamic Law and Social Change: The Religious Court and the Dissolution of Marriage among Muslims in Lombok, Indonesia By Mohamad Abdun Nasir B.A., State Institute for Islamic Studies (IAIN) Semarang, Indonesia, 1998 M.A., State Institute for Islamic Studies (IAIN) Semarang, Indonesia, 2002 M.A., Universiteit Leiden, The Netherlands, 2004 Advisor: Vincent J. Cornell, Ph.D. A dissertation submitted to the Faculty of the James T. Laney School of Graduate Studies of Emory University in partial fulfillment of the requirements for the degree of Doctor of Philosophy In the Graduate Division of Religion West and South Asian Religions 2013 Acknowledgments I would like to thank my advisor Vincent J. Cornell for his endeavor to guide me to write this dissertation and finish it. He provided me with insightful comments and feedback as well as turned my poor writing style into readable English. His guidance to me throughout the coursework on various topics about Islam that I took from him during my course of study at West and South Asian Religions of Graduate Division of Religion and at Middle Eastern and South Asian Studies at Emory has sharpened tremendously my intellectual capability. I owe him innumerable thanks to his effort he made in every step for my academic life since I came to Emory in 2007. I would also like to thank my dissertation committee: Abdullahi A. An-Na’im, Joyce B. Flueckiger, Michael G. Peletz, Gordon D. Newby and Devin J. Stewart. I acknowledge their great contribution for my work and for my expertise in Islamic law, gender and Islamic courts. Abdullahi A. An-Na’im has introduced me to the study of Shari’a law in modern nation-state of Islamic countries. Michael G. Peletz has introduced me to the study of modern Islamic courts and his work on Islamic courts in Malaysia has inspired me how to present, organize and analyze my own data in this dissertation. Joyce B. Flueckiger has introduced me about vernacular Islam and gender in South Asia, which is very helpful in understanding local Islam in Lombok. Devin J. Stewart has helped me to read difficult classical Arabic legal texts when I took his class on Pre-modern Arabic Philology. Gordon D. Newby has given me opportunity to learn about classical Islam when I did my Teaching Assistanship in his class of Early Islam. I am grateful to Peggy Wagner, instructor at English as a Second Language (ESL) Program of Emory Laney Graduate School, who edited the first draft of my dissertation. In Lombok, I thank the judges, the court clerks and the litigants at the Religious Court of Central Lombok for their participation in my research and to the tuan gurus from the Islamic schools. I have learnt a lot from them about the practices of Islamic family law during my twelve-month fieldwork there. My deep gratitude also goes to Fulbright, International Institute of Education (IIE), The American-Indonesian Exchange Foundation (AMINEF) and Emory Laney Graduate School that have arranged and generously funded my study at Emory. I thank to State Institute of Islamic Studies (IAIN) Mataram, Indonesia, where I used to teach and will teach Islamic law, and to the Ministry of Religious Affairs of the Republic of Indonesia for granting me as a state employee permission to pursue my doctoral degree in the U.S. My special thanks go to my wife Rahmati Maula and my Children, Azeilya Audah and Adzka Ulul Albab, for being my best friends during my stay in Atlanta accompanying my study. I present this work for my parents H. Markum and Hj. Mardliyah for their endless pray for my success. TABLE OF CONTENTS INTRODUCTION …………………………………………………………………………. 1 A. Research Objective and Problem ………………………………………………………. 1 B. Shari’a Law and State Law in Indonesia ……………………………………………… 9 C. Research Questions …………………………………………………………………….. 16 D. Previous Research on Divorce in Muslim Societies …………………………………... 17 E. Theoretical Approach and Methodology ……………………………………………… 29 F. Chapter Outline ………………………………………………………………………… 36 CHAPTER ONE Religious Courts: History, Context, and Challenge in Lombok …………………………. 40 A. Religious Courts, Islamic Law, and Judicial Reform …………………………………... 41 B. Islam, Adat, and Customary Marriage in Lombok ……………………………………… 59 C. Contesting Authority: The Religious Court Judges and Tuan Guru ……………………. 87 CHAPTER TWO Divorce and Other Legal Cases at the Religious Court of Central Lombok …………….. 109 A. The Setting of the Religious Court and its Judicial Practices …………………………. 111 B. The Court’s Competence and Domains ……………………………………………...... 125 C. Patterns of Divorce and Litigants’ Experiences ……………………………………….. 146 CHAPTER THREE Judicial Divorce: Meaning, Contestation, and Resistance ……………………………….. 180 A. The Meaning of Judicial Divorce ……………………………………………………… 182 B. Validity and Legality in Islamic Law: Contesting Triple Divorce …………………….. 193 C. Women’s Judicial Divorce: Islamic Law, Domination, and Resistance ………………. 210 CHAPTER FOUR Court Decisions, Judicial Discretion, and
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