ARCHIVES
VOL. 5, ISSUE 2 (2023)
Inheritance rights of daughters according to Islamic inheritance law (analysis of the decision of the supreme court of the republic of Indonesia number 86k/Ag/1994)
Authors
Bahirah Safriadi, Azhari Yahya, Zahratul Idami
Abstract
The Supreme Court Decision Number 86K/AG/1994 states that a daughter
alone becomes ashabah bi nafsih (residuary beneficiaries in their own right) or
the sole heir who can exclude her uncle from the inheritance. This decision
caused a polemic in the community because, according to the majority of Muslim
scholars, a daughter cannot exclude her uncle from the inheritance. The position
of daughter and her uncle are both heirs. This decision is used as
jurisprudence by other judges in deciding inheritance disputes between
daughters and their uncles, which are considered to cause injustice in deciding
inheritance cases. This study uses a normative juridical method by examining
laws and regulations, judge's decisions, and Islamic legal doctrine regarding
the position of inheritance rights for daughters in Islamic law. This study
aims to elucidate position of inheritance rights of daughters who inherit together
with relatives according to the view of muslim scholars, position of inheritance
rights of daughters who inherit with relatives in Compilation of Islamic Law,
and analysis of Supreme Court Decision of the Republic of Indonesia No. 86K/
AG/ 1994. Based on the results of the research, it was found that the legal considerations
of the judges in decision Number 86K/Ag/1994, which made daughters ashabah bi
nafsih, were in accordance with the interpretation of Ibn Abbas regarding the
verse of kalalah in the surah An-Nisa verse 176, where the word
"walad" is generally interpreted includes sons and daughters.
However, the opinion of the majority of scholars states the opposite, that
girls are zawil furudh (those who have been fixed a specific share of
inheritance in the Quran) and are not ashabah bi nafsih and are not able
to exclude their siblings. After an in-depth study, it was found that in the
case of inheritance in decision No. 86K/Ag/1994, the judge made a legal
discovery that violated the provisions of the majority of scholars (jumhur ulama).
The uncle had committed tyranny against his niece by controlling the
inheritance unilaterally for a very long period and not sharing it with her as
the heir. So that after reviewing the evidence and philosophical deepening of
the case, the judge decided to hand over all the assets to the niece through a
grammatical interpretation method on the meaning of the word "walad"
in Surah An-Nisa verse 176 in the form of radd (the excess or remaining
inheritance that is returned to all heirs). Such decisions cannot be made
uniformly with all inheritance disputes because such decisions are only applied
to certain cases to create a sense of justice.
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Pages:98-101
How to cite this article:
Bahirah Safriadi, Azhari Yahya, Zahratul Idami "Inheritance rights of daughters according to Islamic inheritance law (analysis of the decision of the supreme court of the republic of Indonesia number 86k/Ag/1994)". International Journal of Law, Policy and Social Review, Vol 5, Issue 2, 2023, Pages 98-101
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