Analisis Penerapan Ultra Petita Dalam Perkara Cerai Thalak Dihubungkan Dengan Pasal 178 Ayat (2) Dan Ayat (3) Herzien Inlandsch Reglement (HIR) Di Pengadilan Agama Kota Banjar

Abstract

ABSTRACT

Analysis of the Application of Ultra Petita in Divorce Cases in Connection with Articles (2) and (3) of the Herzien Inlandsch Reglement (HIR) at the Banjar City Religious Court Siti Sofia Emalia NIM 82337230005

In judicial practice, a lawsuit usually consists of the main claim (primary petition) accompanied by a substitute claim (subsidiary petition). The aim is that if the primary claim is rejected, there is still a possibility that the lawsuit will be granted based on the judge's freedom and justice, in the decision handed down by the judge. Civil Case Number 390/Pdt.G/2019/PA.Bjr by the panel of judges of the Banjar City Religious Court was decided beyond what was requested by the plaintiff by imposing the payment of mutah maintenance and iddah maintenance, even though this case is a default case. The objectives of the research are 1) To analyze the application of the ultra petita principle in default decisions by the panel of judges of the Banjar City Religious Court, 2) To analyze the legal basis for the application of the ultra petita principle in default decisions by the panel of judges of the Banjar City Religious Court 3) To analyze what efforts can be made to prevent disparities among judges in deciding the same case. The theoretical framework used is justice as a Grand Theory, legal protection as a Middle Theory and maslahah mursalah as an Applied Theory. This research method uses descriptive analysis, namely research that reveals laws and regulations related to legal theories that are the object of research. This research was carried out with the theme of the Application of Ultra Petita as Judge Made Law by analyzing the Decision of the Banjar City Religious Court, with primary data from interviews with respondents consisting of judges, as well as scientific works and decisions in the Banjar City Religious Court. This research uses an empirical juridical approach, namely an approach that examines secondary data first and then continues by conducting primary data research at the Banjar City Religious Court Based on this research, the research results obtained that the Panel of Judges who examined and tried case Number 390/Pdt.G/2019/PA.Bjr decided beyond what was requested by the Plaintiff by imposing payment of mutah maintenance and iddah maintenance even though this case was a default case where during the trial until the reading of the Decision the Defendant was not present, therefore the Panel of Judges decided beyond what was requested, the decision was an ultra petita decision, while Article 178 paragraph (3) Het Herziene Indonesisch Reglement (HIR) and Article 189 paragraph (3) Rbg prohibit a Judge from deciding beyond what is demanded (petitum). Based on the provisions of Article 178 paragraph (3) HIR and Article 189 paragraph (3) RBg, Ultra petita is prohibited, so that judex factie who violates ultra petita is considered an action that exceeds authority because the judge decides not in accordance with what was requested (petitum). Judges may not deviate from the prohibition of ultra petita, because ultra petita is a principle that must be obeyed in order to create legal certainty, new judges may deviate from the principle of ultra petita if there is a strong legal reason, in a civil case with case registration number No. 390 / Pdt.G / 2019 / PA.Bjr the author sees that the panel of judges has a legal reason, namely Article 41 (c) of Law Number 1 of 1974 in conjunction with Article 149 (a) and 158 (b) of the Compilation of Islamic Law in Indonesia and Supreme Court Regulation Number 3 of 2017 concerning Guidelines for Adjudicating Cases of Women in Conflict with the Law, in addition, the deviation from the prohibition of ultra petita is also based on legal facts revealed in the trial, namely the Respondent is not a nusyuz wife and the Petitioner in the trial also stated that he was able to provide maintenance to the Respondent during the iddah period However, in the Religious Courts in the handing down of decisions, disparities are still found between one Judge and another, so it is necessary to formulate specific rules in formal law/procedural law and material law that are applied in the Religious Courts because at this time the Procedural Law that applies in the Courts within the Religious Courts is the Civil Procedural Law that applies in the Courts within the General Courts, except for those that have been specifically regulated, so to minimize differences of opinion, there needs to be a uniform understanding of these special rules by creating standard guidelines. In addition, there needs to be a serious effort from the Government to immediately complete the process of discussion and implementation of applied material law in the Religious Courts, including increasing the status of the Compilation of Islamic Law to become a Law.

Key word : Verdict, Judge, Ultra Petita