Different Protection Techniques: Women's Moral and Material Rights between Indonesia's Presumptive Model and Saudi Condition-Based Model in The Perspective Maqasid al-Syari’ah

Abstract

Scholarship on women's rights within Islamic family law has tended to stay inside one legal system at a time, so that a direct comparison of Saudi Arabia's newest codification with Indonesia reaching both the material and the moral sides of a wife's entitlements remains largely unexplored. Addressing that gap, this article sets the Saudi Personal Status Law of 1447 H, together with its Regulation on the Division of Joint Property, alongside Indonesian Islamic family law as codified in Law No. 1 of 1974, Law No. 16 of 2019, the Compilation of Islamic Law (KHI), and Government Regulation No. 9 of 1975, reading both through al-Syātibī's maqāsid al-syarī'ah. The inquiry is normative and library-based, drawing on statutory, comparative, and philosophical approaches at once. Working from the official wording of each code, the study shows that the two regimes agree over a wider field than is commonly supposed: their overlap takes in not merely dower (Saudi Art. 38), maintenance, and residence, but also a woman's remedy against an obstructive guardian (wali adal), for which Saudi Art. 20 and KHI Art. 23 each secure recourse to the court. Where the techniques diverge in a patterned way is above all in property gained during the marriage Indonesian law splitting joint property in half by automatic presumption and requiring no proof of contribution (KHI Art. 97), while the Saudi Regulation on the Division of Joint Property fixes the status of shared property on a cause-based ground (contract, inheritance, or some other cause) with no such presumption. The contrast grows finer on custody and the right to exit: both codes open from a maternal presumption (Saudi Art. 127; KHI Arts. 105, 156) and both admit darar as a basis for judicial dissolution (Saudi Art. 108), parting company only over how much discretion the judge retains. Assessed against hifz al-māl and hifz al-nafs, neither technique proves superior outright: the presumptive model spares the weaker spouse the burden of proof, whereas the cause-based model safeguards the certainty and independence of the wife's own estate. Protection of women's rights is, on this reading, dimensional rather than absolute, and what separates the two systems is a difference of protective technique in specific domains, not the presence or absence of protection as such.