JRSSEM 2021, Vol. 01, No. 6, 634 – 643

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v1i12.231

VALIDITY OF ELECTRONIC DOCUMENTS AS A TOOL OF

EVIDENCE IN DIVORCE DECISIONS AT EAST JAKARTA

RELIGIOUS COURT

Fahmi Azis

, Imam Haryanto

Universitas Pembangunan Nasional Veteran Jakarta, Indonesia

1,2

e-mail: [email protected]

, [email protected]

*Correspondence: fahmi.aazis97@gmail.com

, [email protected]

Submitted: July, 20th 2022, Revised: July, 25th 2022, Accepted: August, 14

2022

Abstract. The rapid development and advancement of information technology has led to changes

in human life which directly affect the birth of new forms of legal action. Activities through the

media of electronic systems, also known as cyberspace. This study aims to determine the validity

of divorce through social media (electronic) in divorce cases in the Religious Courts, to analyze the

judge's legal considerations on social media evidence in divorce cases in Decision Number

1528/Pdt.G/2017/PAJT and to determine the validity of the divorce. through social media

(electronic) in the perspective of Islamic law and legislation in Indonesia. This study uses normative

legal research, namely by studying the literature, laws and regulations, and writings that are closely

related to the problem under study. This research uses the Information Search Literature Study and

the data needed in several sources. Preparation using literature study is done by reading, studying

and analyzing literature or books and other sources related to the research theme. Deductive data

analysis is a procedure that begins with a general event, the truth of which is known or believed,

and ends at a conclusion. According to Islamic law, divorce is through online media such as

telephone, Facebook, Youtube, SMS, Whatsapp, or Instagram, whether it is only in the form of

sound or accompanied by the form of the party communicating in the form of an image (video

call). Then according to the Shari'a, the divorce is declared as a valid divorce, even though there is

no guardian and it is not delivered directly in front of the wife. According to positive law, it is in

line with the provisions in Islamic law which regulates divorce, namely the arrangement in KHI

comes from Islamic law. However, the absence of legality in the form of proof of divorce (with no

divorce being handed down in court), namely through online media will indeed have an impact on

marital status problems and other legal problems that may arise so that Muslims also need to

comply with state law.

Keywords: Electronic Documents; Evidence; Divorce

Fahmi Azis, Imam Haryanto | 635

DOI : 10.36418/jrssem.v1i12.231

INTRODUCTION

Juridically, activities in cyberspace

cannot be approached with conventional

legal standards and qualifications (Wartoyo

& Ginting, 2022), because if this method is

taken, there will be too many difficulties

and things that will escape the enforcement

of the law (Chamberlain, 2021). Activities in

cyberspace are virtual activities that have a

very real impact even though the evidence

is electronic (Karagiannis & Vergidis,

2021). Thus, in relation to the law of

evidence, it usually creates a dilemma, on

the one hand it is hoped that the law can

keep up with the times and technology

(Putra, 2021), on the other hand, legal

recognition of various types of digital

technology developments is needed to

function as evidence in court. In this regard

(Fukami, Stoykova, & Geradts, 2021), it is

necessary to pay attention to the security

and legal certainty in the use of information

(Lontoh, Maramis, Mawuntu, & Konoras,

2021), media and communication

technology so that they can develop

optimally (Abubakar, 2021). To overcome

security disturbances in the operation of

electronic systems (Ye et al., 2021), the legal

approach is absolute, because without legal

certainty (Yasa, Sudiarawan, Dwijayanthi,

& Pranajaya, 2021), the problem of using

information technology is not optimal

(Antsygina & Teteryatnikova, 2022).

One of the things that is an example

of technological developments affecting

the development of law is in the field of civil

cases, in this case divorce cases (Pasaribu

& Tanjung, 2021). There was a case at the

East Jakarta Religious Court in which

electronic evidence became the instrument

used as evidence for divorce. Indeed, some

time before between husband and wife

there had been a fairly complicated dispute

until finally the husband sent a short

message via WhatsApp which basically

wanted to divorce his wife, the incident

happened on March 20, 2017.

Along with the times, divorce can be

pronounced anytime and anywhere using

technology (Sardi & Livingston, 2022),

namely through social media. However, this

is still a matter of debate among scholars

(Zamil, Ramakrishnan, Jamal, Hatif, &

Khatib, 2021). Indonesia as a state of law

has made a law that regulates this matter,

namely Law no. 19 of 2016 concerning

Amendments to Law No. 11 of 2008 or UU

ITE. After the issuance of this law, social

media can become a piece of evidence that

can be brought to court.

This study aims to determine the

validity of divorce through social media

(electronic) in divorce cases in the Religious

Courts, to analyze the judge's legal

considerations on social media evidence in

divorce cases in Decision Number

1528/Pdt.G/2017/PAJT and to determine

the validity of the divorce. through social

media (electronic) in the perspective of

Islamic law and legislation in Indonesia.

This research is expected to bring the

following benefits: First, to provide an

overview of how electronic evidence is used

in divorce trials in the Religious Courts and

to find out in what form it is valid. Second,

provide a reference for the development of

legal theory and practice. Third, it is hoped

that the results of this study can be used as

a source of information from all levels of

society. Fourth, the researcher hopes that

this research can be used as a reference for

636 | Validity of Electronic Documents as a Tool of Evidence in Divorce Decisions at East Jakarta

Religious Court

further research on related issues.

METHODS

This study uses normative legal

research, namely by studying the literature,

laws and regulations, and writings that are

closely related to the problem under study.

This research uses the Information Search

Literature Study and the data needed in

several sources. Preparation using literature

study is done by reading, studying and

analyzing literature or books and other

sources related to the research theme.

Deductive data analysis is a procedure that

begins with a general event, the truth of

which is known or believed, and ends at a

conclusion.

RESULTS AND DISCUSSION

The purposes and objectives of the

petition for divorce from the Petitioners for

the Convention are as stated by the

witnesses (attached). Considering whereas,

from the posita of the petition for divorce,

the Convention Petitioner shows that this

case includes a dispute in the field of

marriage, and the Convention applicant as

evidenced by P.1 (in the form of an ID card)

and the Convention Respondent as T.4 (in

the form of KK). The contents of the

evidence describe the residence of the

applicant and the respondent to the

convention, and the evidence has met the

formal and material requirements,

therefore it can be accepted as evidence

and can be considered further. And it turns

out that both are domiciled in the

jurisdiction of the East Jakarta Religious

Court, so based on the provisions of Article

49 paragraph (1) letter a and Article 66

paragraph (2) of the Law. No. 7 of 1989

concerning Religious Courts as amended

by Law. No. 3 of 2006 and Law. Number 50

of 2009, the East Jakarta Religious Court

has absolute and relative authority to

examine, decide, and settle the application

for divorce from the Convention Petitioner.

Based on the decision, considering

that during the examination process in the

trial the Panel of Judges had tried to

reconcile the two litigants but failed to

reconcile the two parties as husband and

wife. Although unsuccessful, the panel of

judges has fulfilled Article 65 in conjunction

with Article 82 paragraph (4) of Law

Number 3 of 2006 concerning

Amendments to Law Number 7 of 1989

concerning Religious Courts and Article 31

paragraph (2) of government regulation

number 9 of 2006. 1975 and Article 115 of

the KHI (Compilation of Islamic Law) is

deemed to have been fulfilled.

On July 11, 2017 both parties have

pursued peace efforts through mediation

with mediator Drs. H. Sudirman Malaya,

SH., MH., and according to the mediator's

report dated July 18, 2017, the result was

that they failed to reach an agreement to

make peace and continue their household,

then according to Article 32 (1) PERMA

Number 1 of 2016 it must be declared

unsuccessful. In the decision that has been

submitted, after reading the letter of

application for divorce from the applicant

for the Convention which is strengthened

by himself in his reflection, the main issue

of the petition for the Convention

Petitioner is to be given permission to

impose one raj'i divorce against the

Fahmi Azis, Imam Haryanto | 637

Convention Respondent in front of the

Jakarta Religious Court. Timur with the

argument and reason that since June 2014

the domestic peace between the

Convention Applicants and the Convention

Respondents has often been colored by

constant disputes and quarrels, the cause

of which is that between the Convention

Applicants and the Convention

Respondents there is no longer a match.

In addition, Convention Respondents

often use harsh words, namely often use

animal words or berate the Convention

Applicants. Even the Convention

Respondents often get angry excessively in

public which makes the Convention

Petitioners feel ashamed and the

Convention Respondents have threatened

to commit suicide to the Convention

Applicants. In essence, the Respondent to

the Convention can no longer be advised in

the context of fostering a good household.

This can be direct evidence that there

is a dispute between the Convention

Applicant and the Convention Respondent

that cannot be resolved or find an amicable

point that can resolve the problem.

The climax of the quarrel and dispute

occurred in February 2017 which caused

the Convention Respondent to leave the

Convention Applicant, so that since then

the Convention Petitioner and the

Convention Respondent have not lived in

the same house and have never had a

relationship like husband and wife until

now, so that the household become

completely inharmonious as has been

described in the sit-down section.

Based on Decision No.

1528/Pdt.G/2017/PAJT from the statement

of answers in the Convention, the main

issues/significant points of dispute in this

case are concluded as follows:

According to the Convention

Petitioner's version, that the root triggers

for disputes and quarrels in the household

between the Convention Applicants and

the Convention Respondents since June

2014 which peaked in February 2017

between the Convention Applicants and

the Convention Respondents have

continuously occurred disputes and

quarrels and do not get along anymore as

husbands should. wife and separated from

living together until this case is decided this

application has been submitted for 1 (one)

year and 1 (one) month. 2. According to the

Respondent's version of the Convention,

that the root triggers for disputes and

quarrels in the household between the

Convention Applicants and the Convention

Respondents since June 2014 which

peaked in March 2017 between the

Convention Applicants and the Convention

Respondents have continuously been

disputes and quarrels and do not get along

as they should. husband and wife and

separate residence together until this case

is decided has been going on for 1 (one)

year. Considering, whereas the legal basis

used as an excuse by the Respondent to the

Convention is the provision of the

formulation of Article 1 of Law No.1 of 1974

concerning Marriage.

The material law in this case is the

applied legal system of the Religious Courts

in the field of marriage, the version of the

Compilation of Islamic Law (KHI) in

Indonesia as well as jurisprudence and

doctrine/opinions of Islamic law experts

638 | Validity of Electronic Documents as a Tool of Evidence in Divorce Decisions at East Jakarta

Religious Court

DOI : 10.36418/jrssem.v1i12.231

sourced from the Qur'an and the Hadith of

the Prophet SAW.

As for the reasons that have been

acknowledged in the trial mentioned

above, the Convention Petitioner is not

burdened with mandatory evidence,

because the confession is perfect evidence.

With the acknowledgment of the

Convention Respondent, it is deemed that

the Convention Petitioner's petition has

been proven. This is in accordance with the

jurisprudence in the MARI Decision

Number 496 K/Sip/1971 dated September

1, 1971.

In order to defend the arguments of

the Convention Petitioner's application in

the convention, the Convention Applicant

has submitted written evidence (codes P.1

and P.2) and to strengthen the rebuttal

arguments in the Convention

Petitioner/Defendant of the Convention

has submitted written evidence of code (P.3

and P.4) and present 3 (three) witnesses as

their statements have been described in the

sit-down section (attached).

In order to defend the arguments for

counterclaim in the Convention (de Herdt,

2022), the Respondent to the

Convention/Plaintiff for the Convention

turns out to be irrelevant to the a quo case,

the Panel of Judges considers that the

documents of evidence are

disproportionate to be considered and

must be set aside (Pelker, Brown, & Tucker,

2021).

Because the Convention Respondent

denies some of the posita (fundamentum

petendi) of the Convention Petitioner's

petition, in order to seek material truth

regarding the reasons for divorce argued

by the Convention Petitioner (Reece, 2022),

the Convention Petitioner is obliged to

provide evidence as stated in the Supreme

Court Decision Number 499 K/Sip/1970

dated February 4, 1970. For this reason,

testimonies from family witnesses and or

close people from each party have been

heard (Silva, 2022). As for the written

evidence submitted by the Convention

Petitioner in a formal manner, it can be

accepted because it has complied with the

provisions of the formal evidence, namely

that it has been dinazegelen and has been

shown in its original form at trial. This

shows that according to the ITE Law,

electronic evidence owned can be legal in

the eyes of the law. While the substance of

all the evidence is material and specific.

Thus, if a legal husband and wife are in

constant disagreement, it can be

categorized as a disharmonious couple and

it is judged that the marriage has broken

down (marrige breakdown) so that the

noble purpose of marriage cannot be

realized, therefore maintaining a

household that is seen as such. as a futile

act, it will even cause prolonged mental

suffering for both parties and can add to

mafsadat, which is prioritized over

attracting the benefit, as the fiqh rules were

taken for consideration by the Panel of

Judges which stated: Anticipating negative

impacts should be prioritized over pursuing

benefit ( which is not clear). Kitab Al-

Ashbah Wa Al-Nazha-ir, page 62.

Likewise, the actions of both parties

in their capacity as husband and wife who

do not want to communicate for a long

time can be considered to have left the

corridor of the formulation of Article 3 of

the KHI (Islamic Law Compilation) so that it

Fahmi Azis, Imam Haryanto | 639

is certain that they will no longer be able to

share affection in preserving joints. -the

joints of the household that are sakinah

based on mawaddah and rahmah which are

the essential goals of a marriage so that in

the formulation of Article 19 letter (f)

Government Regulation Number 9 of 1975

in conjunction with Article 116 (f) of the

Compilation of Islamic Law, the panel of

judges is of the opinion that the Petitioner's

petition for Convention is reasonable and

not against the law.

Based on these considerations, the

panel of judges concluded that the two

parties could no longer be reconciled

because the condition of the household of

the Convention Petitioner and the

Convention Respondent had broken up in

such a way that it was difficult to maintain,

then based on Article 70 paragraph (1) of

Law Number 7 of 1989 concerning the

Religious Courts and because the

Convention Petitioner and the Convention

Respondent have never been divorced, the

Petition of the Convention Petitioner in

item 2 can be granted by giving permission

to the Convention Petitioner to impose one

raj'i divorce against the Convention

Respondent in front of the East Jakarta

Religious Court, the decision of which will

be set forth in this decision, and based on

the provisions of Article 70 paragraph (3) of

Law Number 7 of 1989 concerning the

Religious Courts, the Petitioner may

pronounce the pledge of divorce after this

decision has permanent legal force.

As we all know that the evidence in

the trial is not only single evidence. There

are several pieces of evidence whose

position is stronger than electronic

evidence. Such as written evidence in the

form of marriage certificates, etc. and there

are also witnesses who are asked by the

judge to be present and provide

information in court in court to each litigant

party. After the main evidence has been

submitted in court and accepted by the

judge as evidence, it is allowed to submit

other evidence such as electronic evidence

in the form of photos and pieces of

conversation electronically via SMS to

strengthen the plaintiff and the defendant

in proving the lawsuit and responding to

the lawsuit. in court.

Whereas in the decision number

1528/Pdt.G/2017/PA.JT, there is evidence

submitted by the Respondent to the

Convention/Applicant in the form of a WA

message which is one of the electronic

evidence tools to the panel of judges. In his

submission, the Convention Petitioner said

that what was conveyed by the Convention

Petitioner/Respondent in point 5 was not

true, which was true that the Convention

Petitioner who already had another

woman. This evidence is declared valid in

accordance with Law Number 11 of 2008

article 5 paragraph (2), namely regarding

electronic information, electronic

documents, and their printed results are an

extension of legal evidence. In accordance

with the law, the expansion referred to is

the addition of other evidence other than

written evidence, witnesses, oaths, and

judges' suspicions.

This shows that based on the

argument of the Convention Respondent's

rebuttal in point 1 above, the Convention

Petitioner is not a good husband which the

Convention Petitioner as the husband of 2

(two) sons should be more concerned

640 | Validity of Electronic Documents as a Tool of Evidence in Divorce Decisions at East Jakarta

Religious Court

about the future of his two children than

seeking pleasure with other women so that

due to marriage between the Convention

Applicant and the Convention Respondent

is not in accordance with Article 1 of Law

No.1 of 1974 concerning Marriage, it is

appropriate for the East Jakarta Religious

Court Panel of Judges to declare the

marriage between the Convention

Applicant and the Convention Respondent

to be held in Jakarta on 29 June 2013 as

Excerpt of Marriage Certificate No: --- at

the Office of Religious Affairs, Pancoran

District, broke up due to divorce with all the

legal consequences.

As for the law of divorce through

short message service (SMS) in the

perspective of Islamic law, according to the

scholars who allow it, it must fulfill the

elements; firmness of intention, the

intention of sighat talak conveyed must be

understood and understood, protracted

disharmony which ultimately leads to the

absence of good verbal communication

between the two in fostering a household,

and limited space and time to sit together.

Meanwhile, the impact of divorce through

short message service (SMS) in the

perspective of Islamic law is that it should

be done with the principle of ihsan, namely

in a good, wise way and not causing great

harm.

By examining the evidence, it is

stated that the evidence has been analyzed

and has sufficient stamp duty. The evidence

was received by the judge after written

evidence in the form of a marriage

certificate and witnesses from the plaintiff's

family and closest relatives. So the lawsuit

filed is getting stronger and has a greater

chance of convincing the judge that the

lawsuit filed is true, there is a dispute and

there is no harmony. In addition, the

testimony of the witnesses at the trial

related to the dispute between the plaintiff

and the defendant which was juxtaposed

with the electronic evidence submitted

turned out to be continuous. Namely, there

is power over the truth of the affair and the

stability of the two parties in the litigation

for divorce. The panel of judges also

equated or synchronized the evidence with

the main accusation in the lawsuit. Is the

evidence that has been submitted in

accordance with the allegations stated in

the lawsuit. In accordance with existing

regulations, every evidence submitted to

the court must be sufficiently stamped,

which means that it has been analyzed by

the judge that the evidence can be used as

evidence in court.

If the documents of evidence

submitted by both the Convention

Applicant/Reconvention Defendant and

Conventional Respondent/Reconventional

Plaintiff are found to be irrelevant to the a

quo case, the Panel of Judges considers

that the evidences are disproportionate to

be considered and must be set aside. This

is as regulated in Article 1888 of the Civil

Code jo. MARI Decision Number 3609

K/Pdt/1985 dated December 9, 1987.

As stated 51 in Article 1902 of the

Civil Code concerning the beginning of

proof with a written deed, then proof with

witnesses.

The testimonies submitted by the

Convention Petitioners amounted to 3

(three) people, each named Happy

Endyanti Binti Zenal Supardjo, Bara Satria

Fahmi Azis, Imam Haryanto | 641

DOI : 10.36418/jrssem.v1i12.231

Wibawa Bin Bambang Widharto, and

Zulaikha Dariati Binti M. Zikri who had

family and close ties to the Convention

Petitioner. there is a legal prohibition to

become witnesses in this case, and the

witnesses have been sworn in, they can be

formally accepted because they have

complied with the military regulations in

accordance with Article 144 and Article 147

HIR, while the assessment is considered,

then the testimony material will be

considered.

The law of proof is legal evidence

according to law, the system adopted in

proof, the conditions and procedures for

submitting the evidence as well as the

judge's authority to accept, reject, and

evaluate a proof. Where the legal sources

of evidence are laws, doctrines or

teachings, as well as jurisprudence, with

these evidences, they can be used as

evidence in order to raise the judge's belief

in the truth of a civil act that has been

committed by the defendant, so that if a

piece of evidence is not If it is found and/or

if there is no legal regulation that regulates

it, then law enforcement officers will have

difficulty in enforcing civil rights for the

parties. Article 183 states that evidence

must be based on the Criminal Procedure

Code, namely valid evidence, and

accompanied by the judge's conviction

obtained from such evidence. This

provision is similar to Article 341 paragraph

(4) Ned. Sv which says

"Judges may not impose a civil case

on a person, except when with at least two

valid pieces of evidence".

From the explanation that has been

presented, it can be concluded that the

validity of the electronic evidence is based

on the examination of the judge with his

suspicion of the similarity of the electronic

evidence submitted with the original goods

or documents, then the electronic evidence

used as evidence at trial must be

sufficiently stamped. So that various

electronic documents such as photos of

Convention Applicants with other women

and SMS can be proof of the print out

results that are not disputed by the

opposing party but because they have not

gone through further testing, they will be

considered further based on the provisions

of Article 5 paragraph (1) and (2) Law

Number 11 of 2008 concerning Information

and Electronic Transactions (ITE). The thing

that needs to be considered by the parties

is that related to the validation of electronic

evidence submitted to the trial, it must be

validated by parties who have special

knowledge and expertise that have been

certified, so that the electronic evidence

can be considered by the panel of judges

with full confidence in the existence of

electronic evidence. in the judge's decision.

CONCLUSIONS

The conclusion obtained is that

based on the provisions of Article 5

paragraphs (1) and (2) of Law Number 11 of

2008 concerning Information and

Electronic Transactions (ITE) can be

considered as evidence. However, in the

decision Number 1528/Pdt.G/2017/PAJT,

there is no ISO 27037 digital evidence test

and digital signature or digital test

encryption required for expert information

in the audit trail process that can ascertain

whether the evidence is in accordance with

the original or has been changed so that

642 | Validity of Electronic Documents as a Tool of Evidence in Divorce Decisions at East Jakarta

Religious Court

imperfect and strengthen the evidence to

be used as a complement to the trial. The

promulgation of Law no. 11 of 2008

concerning Electronic Information and

Transactions (UU ITE) is considered to

provide more legal certainty and wider

scope of application in terms of the validity

of evidence, Article 5 paragraph (1) of the

UU ITE Electronic Information and/or

Electronic Documents and/or their printed

results are tools valid legal evidence.

Electronic Information and/or Electronic

Documents and/or their printed results are

extensions of valid evidence in accordance

with the applicable procedural law in

Indonesia. In addition to recognizing

electronic information/documents as

evidence, the ITE Law also recognizes print

outs as legal evidence. The procedure for

obtaining electronic

information/documents used as evidence

in court if it is related to a civil act, then to

obtain it must be through the permission of

the Head of the local District Court as

regulated in Article 43 paragraph (3) of the

ITE Law. According to Islamic law, divorce is

through online media such as telephone,

Facebook, Youtube, SMS, Whatsapp, or

Instagram, whether it is only in the form of

sound or accompanied by the form of the

party communicating in the form of an

image (video call). Then according to the

Shari'a, the divorce is declared as a valid

divorce, even though there is no guardian

and it is not delivered directly in front of the

wife. According to positive law, it is in line

with the provisions in Islamic law which

regulates divorce, namely the arrangement

in KHI comes from Islamic law. However,

the absence of legality in the form of proof

of divorce (with no divorce being handed

down in court), namely through online

media will indeed have an impact on

marital status problems and other legal

problems that may arise so that Muslims

also need to comply with state law.

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