Female Apostasy and Marital Status in Indonesian Marriage Law: Comparing Wahbah az-Zuhaili and Abdullahi Ahmed An-Na’im

Abstract

This study analyzes the legal implications of female apostasy for marital status by comparing the thought of Wahbah az-Zuhaili and Abdullahi Ahmed An-Na’im and assessing its relevance to Indonesian marriage law. It uses normative legal research with a qualitative-comparative, library-based design. Primary legal materials include the Qur’an, hadith, the main works of both scholars, Law Number 1 of 1974 as amended by Law Number 16 of 2019, the Compilation of Islamic Law, and relevant court decisions. The analysis combines normative, conceptual, comparative, and historical-sociological approaches and uses munaqashat al-adillah (the critical weighing of legal proofs) as a framework to examine the basis, method, strengths, and limitations of each legal argument. The results show that az-Zuhaili treats riddah (apostasy) as a ground for ending a marriage through fasakh (judicial dissolution), whereas An-Na’im rejects automatic civil consequences of a change of religion and stresses freedom of religion and human rights. The difference stems from two models of legal validity: az-Zuhaili’s internal-traditional model grounded in ushul al-fiqh and An-Na’im’s historical-critical model grounded in human rights. In Indonesia, az-Zuhaili’s view aligns more closely in substance with the construction of Islamic marriage law, although the legal consequences still require a court determination. An-Na’im’s perspective, in turn, helps strengthen the protection of women’s economic rights, hadhanah (child custody), and the best interests of the child. The study concludes that riddah cases require courts to integrate legal certainty, judicial authority, freedom of religion, and gender justice.