The Analysis of Imam Shafi’i’s Opinions Against Article 116 (Letter E) of the Compilation of Islamic Law on the Criteria for Disability or Diseases Proposed as Reason for Divorce

Abstract

Divorce means breaking the bond of marriage. In other words, it is to break the ties of marriage by using lafaz talaq or other similar expressions, from either the husband or the wife. In the Compilation of Islamic Law, there are some points that can be used as reasons to divorce, including disability or illness. This research identifies the opinion of Imam Shafi'i of the criteria for disability or illness that may be filed as the reason of divorce; the Compilation of Islamic Law provision of disability or illness as reason for divorce; and the opinion of Imam Shafi'i against Article 116 (letter e) KHI on the criteria of disability or illness that can be put forward as the reason of divorce. This research is a library research that is aimed to analyze the views of Shafi'ite schools against Article 116 (letter e) of the Compilation of Islamic Law on the criteria of disability or illness that can be put forward as reason of divorce. This study employed the juridical normative approach. The normative juridical research is a research that includes the principles of the law, systematic of law, comparative of law, and the synchronization of law. It is expected to analyze the views of Shafi'i schools against Article 116 (Letter E) of the Compilation of Islamic Law on the criteria of disability or illness that can be put forward as the reason of divorce, with the techniques of data collection through review of library materials related to the problem. Based on the research, Imam Shafi'i says, each of spouses is entitled to ask fasakh, due to a defect of the defects that can occur in the husband and wife or on one of the two. In the Compilation of Islamic Law on Article 116 Letter e, divorce can happen for a reason that there are defects in the body of one of the husband or wife resulting inability to perform obligations. Imam Shafi'i argues, if one of the spouses finds physical or mental disabilities in the partner that hinder the continuity of marital life, then one of the parties may choose (khiyar) for divorce or continuing the marriage.