PENGECUALIAN TERHADAP PENERAPAN ASAS ULTRA PETITUM PARTIUM DALAM BERACARA DI PENGADILAN AGAMA
Abstract: A judge must examine
and adjudicate all charges thoroughly on the lawsuit brought to the court. The
judge should not only examine and adjudicate part of the charge and disregard the
rest. On the other hand, judge in his/her adjudication is prohibited to accede
above the suit brought by the parties. This prohibition is called ultra petitum
partium. A judge who accedes in excess of the suit partium is considered to be
exceeding his/her authority. In Religious Court proceedings, the implementation
of ultra petitum partium principle is an exception in several types of cases.
In the procedure of divorce (cerai talak), a judge may grant something not demanded
by wife either in the petition of divorce or in the reconvention by charging
certain obligations upon the husband, which is the wife’s right as the
consequence of the separation. In the procedure of divorce, judge may order a
preliminary injunction even if such injunction is not demanded. The argument
that justifies the judge’s action is the Marriage Act and the procedural law in
the Act on Religious Court is a lex specialis stipulation, judge as judge made
law must dig into the values of life, and the judge may execute contra legem
action if the stipulation in an article considered to be in contradiction with
justice and benefit.
Kata Kunci: pengecualian,
ultra petitum partium, pengadilan agama
Penulis: Hartini
Kode Jurnal: jphukumdd090058