The Position of Women and Women's Rights in Islamic Family Reform: A Comparison in Indonesia and Tunisia

This research was prepared with the aim of discussing the position and fight for women's rights in the Islamic Family reform (Comparison in Indonesia and Tunisia). Some women demand that their rights be taken away by male hegemony. This theme ultimately falls within the scope of the Holy Quran which is used as a source of legitimization of the relationship between men and women. The research method used in this study is the method of collecting data through library research. Data is collected by gathering information from various sources of literature, including books, magazines, journals, and others. From this research, it can be concluded that the reform of Islamic family law in Indonesia and Tunisia was carried out to answer the needs of the times and especially to raise the degree (status) of women, namely through nurturing, preserving and then fighting for women's rights. Although the minimum standards of marriage and polygamy differ in the two countries, they share a similar principle and goal: the protection of women's rights. Nonetheless, these rights are equivalent by nature in sharia (maqasyid ash-shari'ah), such as the right to mental and psychological health (equivalent to the nature of hifz an-nafs/maintaining the soul), then the right to maintain reproductive health (equivalent to the nature of hifdz al-nasl/maintaining offspring), Furthermore, the right to obtain equal opportunities in the field of education (commensurate with the nature of hifdz al-'aql / preserving the intellect) and the provisions of polygamy between the two countries also have commensurate goals and principles, namely to protect women's honor or human rights (commensurate with the principle of hifdz al-'ird).


Introduction
Changes in law namely Islamic law, in a country, are a necessity.The transition does not occur without a cause but due to the meaning or legal information manifested in a variety of legislation, which is already considered not the same as the time (al-azminah), place (alamkinah), and circumstances (al-ahwal) now.Through different sentences, the law that has been running in a country, including Islamic family law, can be transformed when the law no longer has a relationship with the socio-cultural and geographical conditions of a country.In this situation, we can use Anderson's idea that Islamic family law established in Islamic countries is not fixed, meaning that it is more dynamic, and can change at any time.In other words, Islamic family law is a living law (Anderson & di Dunia Modern, 1990, pp. 89-90).
The Western ideas of 'democracy' and 'emancipation' that entered the Islamic world forced Muslims to re-examine the position of women who had been marginalized for centuries.The concept of "feminism" that was prevalent in the West in the 19th and 20th centuries became a model for women's liberation in many Muslim countries.Beginning with Egyptian intellectuals who studied in Europe, the discourse of feminism that was prevalent in Europe was adopted by them after returning from Europe and then developed, known as tahrir al-mar'ah (women's liberation).The tahrir al-mar'ah movement quickly developed when people increasingly realized the oppression, especially experienced by women, caused by colonialism and modernism (Hasyim et al., 1999).
Feminism in this perspective is a series of social movements, political movements, and ideologies that have the same goal, namely to define, build, and achieve gender equality in the political, economic, personal, and social spheres (Elinor, 2019, pp. 291-294).Feminism incorporates the position that society prioritizes the male point of view and that women are treated unfairly within that society (Gamble, 2004).
Gender bias is sometimes also evident in the decision-making process in the family, which usually does not involve women.Domestic violence also commonly occurs in the form of beatings or physical attacks from husbands against wives and children.Thus, it can be assumed that the manifestation of gender injustice has begun in the family environment.Such is the reality that appears in the daily life of society.Indonesia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) into Law Number 7 of 1984, which among other things states that State parties are obliged to make appropriate regulations to eliminate discrimination against women in all matters relating to marriage and family relations based on equality between men and women.
Legal reform in the field of family law in Muslim countries has been done a lot.For example, the Compilation of Islamic Law (KHI) which is Presidential Instruction No. 1 of 1991 is one form of legal reform in Indonesia.Meanwhile, Tunisia established The Code of Personal Status Tunisia (CPST).Indonesia and Tunisia have different socio-political conditions, but both countries are countries that have religious diversity, and Islam is the majority religion.
online journals http://jurnal.radenfatah.ac.id/index.php/medinateNonetheless, feminist groups have always highlighted the presence of family law, which is considered to still discriminate against women (Muin, 2022, p. 14).Moreover, the issue of changing the contents of Marriage Law No. 1 of 1974, as well as the Compilation of Islamic Law cannot be separated from the public view.The existence of a draft amendment to the KHI made by the Ministry of Religious Affairs of the Republic of Indonesia, which contains 23 chapters and 150 articles, is concrete evidence of the reform.In addition, the results of the analysis and research of the gender mainstreaming team (PUG) of the Ministry of Religious Affairs of the Republic of Indonesia on the Compilation of Islamic Law (KHI) which was later called the Counter Legal Draft (CLD-KHI) -also symbolize that the articles listed in it still contain gender bias.
The objectives of the research entitled "The Position of Women and Women's Rights in Islamic Family Reform (Comparison of Indonesia and Tunisia)" are: To find out how the position of women in Islam and the Compilation of Islamic Law in Indonesia, to find out what are the methods and objectives of Islamic family law reform, then to analyze Islamic family law reform in Indonesia and Tunisia, and finally to analyze women's rights in Islamic law reform in Indonesia and Tunisia.

Research method
This research is a type of library research that is included in the category of library research.This research entitled The Position of Women and Women's Rights in Islamic Family Reform: Comparison in Indonesia and Tunisia whose data is collected through library research, namely collecting information from various sources of literature related to divorce and reconciliation referring to books, documentary materials, journals, magazines, and newspapers.The main focus of library research is to find various theories, laws, postulates, principles, opinions, ideas, and other information that can be used to analyze and solve the problem under study (Sarjono, 2008).

A. The Position of Women in Islam and the Compilation of Islamic Law in Indonesia
1. Gender and Feminism in Islam Islam itself does not recognize the designation of gender and feminism with various ways of concept and implementation in carrying out a lawsuit over the values of subordination of women, because Islam does not differentiate between a person's degree according to gender and there is no gender bias in it.Islam places men and women in the same situation with the same glory (Baidowi, 2023).Here are several verses in the Qur'an that assess gender equality: a.The humanity of women and their equality with men (Q.S Al-Hujurat: 13) A clear example is that Islam does not differentiate between men and women in terms of the category of piety.This is because Paradise is not reserved for men only, but also for women who are pious and do good deeds.Islam puts women and men in their respective portions.There is no justification for the view of orientalists and enemies of Islam that Islam puts women at a low level or is considered a second-class society.In the teachings of Islam, women are glorified.There are many verses of the Qur'an and hadith that talk about the honor of a woman and raising the status of women, whether as mothers, children, wives, or members of the community themselves.There is no difference between men and women in Islam, but in this case what distinguishes the two is their function, because of the nature of each (Subhan, 2015).
Roded notes that the equal treatment between men and women has led them to achieve the same achievements as men (Roded, 1995).According to him, of the thousands of companions of the Prophet, 1,200 of them were women, they were in direct contact with the Prophet.Fatima Mernissi also noted that many women managed to control the throne of political power.At the time of the Prophet, an ideal relationship between men and women was created, where they were truly equal (Mernissi, 1997).

Women in the Compilation of Islamic Law in Indonesia
The Compilation of Islamic Law (KHI) is a manifestation of efforts to reform Islamic law in Indonesia.The preparation of KHI can be considered as part of an effort to find a pattern of fiqh that is uniquely Indonesian or contextual fiqh.KHI is the result of the ijtihad of Indonesian scholars who are members of a team and together formulate a legal formulation that follows the context of modernity and Indonesianness.
It should also be noted that before the formation of KHI, there were important and fundamental changes that had occurred within the Religious Courts with the passing of the draft law into Law No. 7 of 1989, which was submitted by Minister of Religion Munawir Sjadzali to the DPR session.One of the contents talks about women, namely: Protection of women has been improved by, among other things, giving equal rights to wives in the process and defending their interests before the Religious Courts (Muhammad, 2016).
However, according to Daud Ali, the statement of the article should not be seen as a decrease in the position of wives because the statement is only a division of work online journals http://jurnal.radenfatah.ac.id/index.php/medinateand responsibilities.The formulation should also not be interpreted that wives cannot carry out activities outside the home, as long as they do not forget their function as housewives.This is because according to Fitrah, it is the mother who is most suitable to play the role of being responsible for the household (Ali, 1994, pp. 29-30).
Another issue that will be reviewed is regarding the joint property.In KHI, the issue of joint property is regulated in more detail.This is reflected in the number of articles.In the marriage law, there are only 3 (three) articles that regulate this matter, while in KHI there are 13 (thirteen) articles, namely Articles 85-97.
Article 92 states: "Husband or wife without the consent of the other party is not allowed to sell or transfer joint property".So it is very clear that the wife has more rights obtained from the husband's efforts as the person responsible for family maintenance.Next to be reviewed is the issue of divorce.Regarding divorce procedures, it seems that KHI is very detailed in regulating them, both divorce and contested divorce.KHI also appears to be very concerned about women through the arrangement of filing for divorce in the two forms above which follow the domicile of the wife.
Article 129 states: "A husband who wants to divorce his wife submits an oral or written request to the Religious Court which has the wife's residence accompanied by reasons and requests that a hearing be held for that purpose".As for inheritance, the inheritance system adopted by KHI is a bilateral inheritance system, where sons and daughters and grandchildren of sons and grandchildren of daughters (zawil arham) are equal heirs.The KHI inheritance system is seen in Article 174 paragraph (2) which states that: "If all heirs exist, then only children, father and mother, widows or widowers are entitled to inheritance." In this article, the word "child" is mentioned absolutely without the information "male or female".This means that if there is a child, without distinguishing whether the child is a boy or a girl, it can hijab hirman (totally close) against the siblings or uncles of the testator, whereas according to sunni fiqh, if the child is a girl it can only hijab nuqson or reduce the share of the heir 'ashabah (Rusydi, 2017).
Regarding the share of daughters, although Article 176 KHI states that the share of sons and daughters is proportional to 2 and 1, in article 183 KHI mentioned: "The heirs can agree to make peace in the division of inheritance.After each realizes his share."(Z. A. Abubakar, 1993) Thus, the division referring to 2 to 1 above is not applicable, because the division of inheritance generally takes place amicably.Similarly, in a concrete case in the Religious Court, the judge may consider changing the ratio of shares by making an equal division between sons and daughters or any other way that in the opinion of the judge will realize a sense of justice.

B. Methods and Objectives of Islamic Family Law Reform
The idea of Islamic family law reform in the background here is a form of change, which is then interpreted as reform, although the two terms are different.Legal online journals http://jurnal.radenfatah.ac.id/index.php/medinatetransformation does not update formal provisions, while reform changes formal provisions (Abdullah, 2016).
When reforming Islamic family law, modern Islamic countries use various models of reform methods.Tahir Mahmood reveals the method of reform in four ways, as stated in his book entitled Personal Law.The methods are Intra-doctrinal Reform, Extradoctrinal Reform, Regulatory Reform, and Codification (Mudzhar & Alwustho, 1998).The following is an explanation of these methods, namely as follows; 1.

Intra-doctrinal Reform
The method that is carried out in this context is a method that is carried out by uniting several ideas of the madhhab imams or picking ideas outside the adopted madhhab.This means the perception of conventional fiqh (led by the four imams of the madhhab, namely; Imam Syafi'i, Imam Hanafi, Imam Maliki, and Imam Hambali), in which case the reform remains the main reference (Nasution, 2012).

Extradoctrinal Reform
Modernization carried out in this way is opposite to the previous way.In this way, it appears to be an effort to re-interpret or re-understand the existing texts.In other words, the reform carried out by some Muslim countries has gone beyond the basis of the madhhab.

Regulatory Reform
This third method is a form of reform implemented through various legislation and administrative regulations.This form of modernization is an influence related to Western countries so that Islamic law is more flexible because of the conference between Western law and Islamic law.Islamic countries that establish modernization in this way are Indonesia, Pakistan, Malaysia, Brunei, Singapore, and so on.

Codification
This codification means bookkeeping.In the position of modernization of Islamic family law, namely legal reform by carrying out bookkeeping on the law completely and systematically.Codification, as one of the ways of reform, was introduced by continental European legal forms.In this case, it can be said that the impact of the West on Islamic countries is so desirable that the adoption of this method of modernization cannot be respected.The adoption of Islamic family law is logically based on the desires and circumstances of the country.Countries that set modernization in this way are Lebanon, Jordan, Syria, Tunisia, Morocco, Iraq, Indonesia, Malaysia, Brunei, and Singapore (Wahyuni, 2011).
Another idea was presented by Anderson who revealed there are five ways used by Islamic countries to reform the law that takes place in the country.The method in question is the first, the procedural expedient (takhshish al-qadha'/procedural policy), which is the determination of the jurisdiction of judges in court.It is the right of a state to provide limits on the authority of the judiciary (Wagianto & Affan, 2022).
The second purpose is for legal unification.In this context, there are five categories of unification (Mardani, 2011), including unification that is determined for all citizens regardless of religion, second; and unification that intends as an attempt to merge the two main schools in Islam, for example, Sunni and Shi'i.Third, unification is carried out in groups that try to unite between schools of thought in Sunni, because in it there are adherents p-ISSN: 1858-3237 e-ISSN: 2623-0178 32 online journals http://jurnal.radenfatah.ac.id/index.php/medinate of related schools.Fourth, unification in one particular madhhab, for example in the environment of adherents of Shafi'i or Hanafi or Maliki.By saying unification from among the madhhabs, it does not mean that the form of reform that is obtained automatically transfers to and derives from the existing madhhab in the corresponding country.It may be that the form is quoted from the thinking of a school that is not found at all in the relevant country.
The third purpose is to respond to the progress and demands of the times.Coinciding with the problems prevailing in society and the advancement of science and technology, Islamic law, to respond to the progress and reform of these conditions, should have implemented changes.

C. Changes in Islamic Family Law in Indonesia and Tunisia
This discussion will explain the equivalence of family law changes in Tunisia and Indonesia.The two countries, being a role models regarding the progress of family law reform for Islamic countries (Suma, 2004, pp. 201-212).some of the substance of the law on family law.Among them are; 1. Minimum age of marriage.
Tunisia is a country ruled by adherents of the Maliki school of thought, which in the formulation of its legislation also takes the principles of the school.But it should also be noted that Tunisia is a country that seems open to other schools of thought, so it is not strange if the articles contained in its laws are incompatible or even 'deviate' from the principles contained in the country's school of thought.
The current law in Tunisia, in relation to the minimum age of marriage, is found in Article 5 of Law No. 49 of 1956, which states that the age of marriage is 20 years for both men and women.Before the amendments were made, the age of marriage was 20 years old for a man and 17 years old for a woman.However, marriages that occur under the specified age then must obtain permission from the guardian and the court has the power to submit a determination on marriage if the guardian does not permit to marry.The granting of permission by the court is considered quite strict because the court will not grant permission if the reasons complained of by the two parties are not strong and unclear (Rahmat, 2014, p. 36).

Polygamy
Concerning the polygamy law, Tunisia is among the Islamic countries that prevent its population from practicing polygamy.This is also contained in Article 18 of the Tunisian Family Law Act, which interprets that having more than one wife is an act that is not allowed or prohibited (Bancin, 2018), (Rachmatulloh, 2020).The reference for the prohibition of polygamy is, as stated by John L. Esposito, that: a. Polygamy is akin to slavery, a practice that most human beings everywhere cannot agree with.b. the ideal marriage that fits the Qur'anic criteria is monogamy.Meanwhile, the socalled fairness requirement, which is touted as a condition for being allowed to practice polygamy, has been proven by history to be only the Prophet Muhammad (peace be upon him) who was able to be fair to his wives.
online journals http://jurnal.radenfatah.ac.id/index.php/medinateBourghia, as president, argues that the concept that prevailed in ancient times, rather than clash with the current situation.In this context, it is very clear how Tunisia is giving up the rights and protection of women against all arbitrary treatment, which according to Tunisian reformers, polygamy is a way of betrayal (infidelity) of men against women in family life.Some comparisons of the substance of family law between Tunisia and Indonesia can be seen from several articles in the marriage law, such as the following; 1) Minimum age of marriage Indonesian law has decided that the minimum age of marriage for both men and women is 19 years old.The regulation is found in Law No. 16 of 2019, which is a revision of Article 7 of the Marriage Law No. 1 of 1974, which originally decided that the minimum age for men is 19 years old and women are 16 years old.This decision is not the same as the minimum age of marriage in Tunisia which is higher than in Indonesia, where a person must be at least 20 years old for both men and women to get married.This regulation has also undergone revision efforts, with Tunisia first deciding on a minimum age of 15 for women and 18 for men to be able to perform marriages.

2) Polygamy
The stipulation of existing laws in Indonesia, using Article 3 paragraph (2) of the Marriage Law No. 1 of 1974, states clearly that the court can permit a husband to have more than one wife if it is allowed by the parties concerned.The regulation is then solidified by Article 56 paragraph (1) of the Compilation of Islamic Law, which states that a husband who will have more than one wife must obtain permission from the Religious Court.Although polygamy is permitted, it must fulfill the conditions set, such as the husband must submit a letter of application to the Religious Court, permission can be obtained if the wife cannot carry out her obligations, is disabled or has an incurable disease, and the wife cannot conceive.The other conditions are mentioned in the Compilation of Islamic Law, which is allowed to do polygamy with a maximum limit of only 4 wives, the husband must have fair treatment to his wives, the husband is also required to obtain permission from the wife to be able to guarantee the living needs of his wife and children, and the last husband must obtain permission from the Religious Court.
The selectivity of polygamy law is even more striking when considering the special regulations intended for permission requests for civil servants (PNS), namely Government Regulation (PP) No. 45 of 1990 concerning Amendments to PP No. 10 of 1983 concerning Marriage and Divorce Permits for Civil Servants.Similarly, it is explained in Article 4 paragraph (1) of the regulation that if a male Civil Servant who will have more than one wife, must obtain prior permission from an official.Looking at the rules set, taking into account the conditions set, someone who has the desire to commit polygamy does not seem easy to implement, because the rules are so strict.Meanwhile, the strict rules for civil servants to be able to practice polygamy are because civil servants are good examples of State institutions that should be role models.

D. Women's Rights in Islamic Law Reform in Indonesia and Tunisia
At least some women's rights are protected and pursued in the articles on the minimum age of marriage and polygamy.In the case of the minimum age limit article, where the regulation in Tunisia, the minimum age of marriage is 20 years old and Indonesia is 19 years old, both men and women, is an effort by the government to gain benefit (jalb al masalih) for women and prevent harm (dar al mafasid).
In the analysis of Islamic law, the age of marriage is not specifically described, but there are adult requirements for men and women.The imams of the fiqh school of thought generally allow early (child) marriage.One of the references is the Prophet's fi'lu an, the treatment of the Prophet who married 'Aisha when she was six years old (who was married by Abu Bakar), and the Apostle married his daughter Ummu Calcum to 'Ali when ummu calcum was still a child.Likewise, 'Abdullah bin Umar married off his son when he was a child and other companions (Hefni, 2018).However, many reject the licensing of underage marriage, Ashgar for example, refers to Muhammad Asad's interpretation, namely the word lam yahidna does not mean not yet reaching the age of menstruation, but not menstruating.Not menstruating could be due to psychological or other reasons (Engineer et al., 2000).
The next right of women is the right to reproductive health.This category is also sought by these two countries because as is well known, underage marriage has an influence that cannot be ignored, which can have an impact on cervical cancer for women, which is said to be the second dangerous cancer after breast cancer.This effort is a form of preserving offspring (hifdz an-nasl), because a neat offspring will be one of the factors driving the development of a country.
Another right is the right to obtain a higher and quality education.The trigger for many underage marriages is the lack of public education, so when a girl does not continue school, there will be a thought that it is better to get married.In the context of maqasid shari'ah, this effort is a form of protecting and protecting the human way of thinking (hifdz al-'aql)...As in Q.S Mujaadilah: 11 Meaning: O you who believe when it is said to you: "Be spacious in majli", then be spacious, surely Allah will make it spacious for you.And when it is said: "Stand up", then stand up, surely Allah will elevate those who believe among you and those who are given knowledge a few degrThe verse, when connected to the present, namely skills (soft-skills) and education are two things that must be considered.In terms of the economy, someone who has a higher education should have a better economic level.
On the issue of polygamy, the rights that need to be prioritized by these two countries are human rights and protecting women's honor.Although the regulations of these two countries have substantial differences, where Tunisia does not allow polygamy and Indonesia gives permission with very strict conditional rules, each of these countries has the same basis, that the position of men and women is equal (egalitarian / al musawah), both inside and outside society.It should be noted that historically the permissibility of polygamy was intended to address an urgent problem that had to be resolved at that time, namely widows and orphans who needed protection and the guardian's treatment of the orphan's property was unfair.
The handling of this problem through polygamy, namely so that the widow and orphan get protection, and the guardian who keeps the orphan's property is free from unjust treatment because it cannot be fair.In Quraish Shihab's language, the issue of polygamy is online journals http://jurnal.radenfatah.ac.id/index.php/medinatean emergency exit, which cannot be done at any time, but only in an emergency.ees.And Allah knows best what you do.

Conclu#sion
Based on the entire explanation above, in this article the author can provide the following conclusions: First, many verses in the Qur'an and Prophetic Hadith praise and elevate the status of women.Whether as mothers, daughters, wives, or members of society.There is no discrimination between men and women in Islam, but what distinguishes them is the function of their respective nature.Specifically, family law regulations in Indonesia still contain gender bias.Rules that bind men and women can be said to be fair in the context of Indonesian society which has its own cultural patterns and social structures that tend to be pluralistic.Second, the reform of Islamic family law in Tunisia and Indonesia was carried out in response to the needs of the times and in particular in order to raise the status of women by protecting, preserving and seeking their rights.Although the minimum standards of marriage and polygamy are different in the two countries, both countries have the same basis and intention, namely: protection of women's rights.Third, these rights are in line with the fundamentals of sharia (maqasyid ashshari'ah), such as the right to obtain psychological and mental health (in line with the principle of hifz an-nafs / preserving the soul), the right to obtain reproductive health (in line with the principle of hifdz al-nasl / preserving offspring), the right to obtain equal opportunities in the field of education (in accordance with the principle of hifdz al-'aql / preserving the mind) and polygamy regulations in both countries also have similar teachings and intentions, namely to protect women's honor / human rights (in accordance with the principle of hifdz al-'ird).