TESTIMONIUM DE AUDITU PROOF IN CONFIRMATION OF MARRIAGE DECISION (ISBAT NIKAH) (Normative Studies to the Decision Number 69/PDT.P/2012/PA.MLG)
ABSTRACT: In this paper the
author discusses the issue of proof testimonium de auditu in request of ‘isbat nikah’ In Article 171 HIR de auditu
mentioned that testimony can not be accepted as valid evidence. According to
some legal experts testimony de auditu not allowed because such information
does not relate to events experienced by themselves, so the witness de auditu
not constitute evidence and need not be considered. However, the determination
of the request confirmation of ‘isbat nikah’ Number: 69/Pdt.P/2012/PA.Mlg,
judge accepted the testimony of de auditu as valid evidence through several
considerations.
This study aims to identify and analyze the determination of ‘isbat
nikah’ request Number: 69/Pdt.P/2012/PA.Mlg about proving testimonium de
auditu. Thus it can be seen why the Malang religious court judge granted the
applicant. This research is a normative juridical approach to the legislation.
Therefore this study used type of primary legal materials, secondary, and
tertiary obtained from the study of literature. Analytical techniques used in
this research is descriptive qualitative techniques.
Based on the results of the study, the authors obtained answers to
existing problems. Malang Religious Court judges grant applicants with some considerations
on the basis of the applicant's conduct and the confirmation of marriage just
to take care of a retired widow. And keep in mind that there are three purposes
of the law, justice, expediency, and certainty. In this case Judge emphasizes
expediency than other legal purposes, and also for the benefit of the applicant.
The conclusion of this study was largely a general provision of Article
171 HIR is not binding and can be ruled out by considering the extent to which
the quality and probative value of the testimony given by the witness de
auditu. Researchers suggested that in solving this problem of legal
practitioners should not be fixated on formal rules, neglecting the rules of
law in society, the rules of religion in other words that the underlying
judgment the judge in determining the application for confirmation of marriage
is for the benefit of the applicant.
Author: AYU TUNJUNG WULANDARI
Journal Code: jphukumgg130030
