<pre>Sexual Violence in Jurisprudence (6): Wali Mujbir and the Forced Marriage


In connection with the identification of 15 types of violence against women carried out by the National Women's Committee (Komnas Perempuan), there were two main points that were highlighted by Musyawirin at the NU 2019 Ulema Council National Forum in Banjar City some time ago, namely the element of Coercion Marriage and Forced Pregnancy. We focus first on the component of violence in the form of forced marriage.

The point of forced marriage is actually the background due to the case of parents forcing their daughters to marry someone they don't want. This coercive motive is caused by parents having debt dependents who are unable to repay, so as a ransom, the child is forced to marry the party who gave the debt. Just like the story in Siti Nurbaya's novel.

Actually this is not the only thing that has become the background because the adoption of the concept of forced marriage is one form of sexual violence, there are many other background factors that are the contributing factors. That is why, the scholars who were gathered in the discussion forum did not reject the adoption of this clause as part of sexual violence. However, of course it must be accompanied by many notes, considering that the concept of our jurisprudence also adopts the permissibility of such rights. The right is owned by the guardian mujbir namely the guardian who has the forced right to marry. The holder of this right is the father (أب) and his father's father (grandfather from the father's path).


How do we put this fiqh concept in a positive legal rule such as the Draft Law on the Elimination of Sexual Violence? This is the focus of this paper.

It should be noted that Indonesia is a country based on Pancasila which recognizes the One Godhead so that the rules that apply in the religion of its citizens must be considered in every policy. The Qur'an – as a Muslim guideline – has established rules about marriage in many of its verses. There are approximately 104 verses, 23 times referred to as the marriage word, and 80 times referred to in the zauj concept. If summarized, out of the 104 verses, there are 5 things that are the topic of the discussion, which later became known as maqashid (main purpose) of marriage, namely: (1) talking about monogamy and polygamy, (2) efforts to realize mawaddah wa rahmah (3) the principle of complementarity and protection ( libâs / clothing), (4) principle mu'asyarah bil ma'ruf (getting along well in the household) and (5) the principle of choosing a mate. Especially for choosing this soul mate, described in the hadith.

In relation to choosing a mate which is one of the principles of marriage, sometimes there is a clash between the perpetrators themselves and the rights ijbâr (“force”) by the guardian. Because of the possible factor of this conflict, the rights of the guardian to daughters cannot be categorized as absolute rights (can be in all conditions), but they are [muqayyad] (limited by conditions). However, because the concept of jurisprudence is also corroborating this concept of ijbâr for the application concept generally in the rules of positive law, it is absolutely necessary to pay attention to the concept of mafsadah and its maslahah given the possibility of abuse of authority.

The abuse of authority by the guardian may result in inner suffering to the daughter who should be protected. In the context of the text, this act of abuse of authority is referred to as the term ibtagha and âdûn which has the connotation of action beyond the limit. Ijbâr which contains the potential disadvantage for girls who are victims of forced marriage included in the category ikrâh . As mentioned in previous writings, that [ikrâh] [force] is the main element of sexual violence so that it is dhulm [persecution] (persecution). This is what should be avoided.

So how should this be addressed? So, in this case it is necessary to pay attention to the concept of ijbâr itself according to the jurisprudence. Some notes that have been collected are that the concept of ijbâr by the guardian may be carried out on the following terms:

1. There are no real disputes ( ‘adâwah ) between children and guardians and between children and prospective husbands

2. Ijbar may be done provided that the prospective companion of the child must be sekufu.

3. The minimum dowry given in the case of this Ijbâr is to use mahr mitsil

4. Ijbara does not have the potential to harm or harm / afflict the child

The condition for the absence of [adâwah] [adversary] (enmity) as stated above is based on an understanding of the text of the following hadith:

ال900يب أحق بنفسها من وليها ، والبكر تُستأذن في نفسها ، وإذنها صماتها (رواه الجماعة إلا البخاري) ـ

Meaning: “Widow women are more entitled to themselves than guardians. While the virgin child has the right to be asked for permission for him. The (part) of the permit is silent. “(Hadith History of Jama'ah except Imam Bukhari)

In this hadith, specifically for girls who are still virgins, there is a right to be asked for permission. Related to asking permission to virgin children, there are notes from the previous 'jurists', namely that for girls, the concept of permission is a form of application of the concept of istihsân . In other words, the actual right to ijbâr is still absolutely in the hands of the father and grandfather, meanwhile, the form of permit request, its nature is only a matter of extinction. Therefore, as an effort to protect the rights of children, other opinions are applied which are more cautious and more protective for the protection of the child. In detail, this view includes the following:

1. An opinion conveyed by Hanafiyah states that girls who are adults should not be forced, either by father or by other parties. The position of adult girls in this opinion is equated with tsayyibah (ie widows who have experience in the household). Even in this school it was stated that the marriage contract is not valid without beginning with a request for permission for the girl. This opinion is an “alternative opinion”, that is if there is a case of a dispute between the child and the guardian or between the child and the prospective bride and groom.

As an alternative qaul, the quality of this opinion is weak. The strongest opinion is from the Syafii school, which is based on the understanding of the alternative qaul, namely that the rights of the guardian do not fall, but with the condition of the absence of 'adâwah (hostility) between the child and the guardian and the child with the potential partner. [19659003] 2. As a form of recognition of the rights ijbar it is also required that the kufu (equal status) of the prospective bride be chosen by parents. The size of this kufu is being able to work and provide a living and not much different from the child in terms of age. This opinion is the strongest opinion. In fact, parents can reject the candidate offered by the child when there is a lack of agreement between the two prospective brides.

3. If ijbar with the condition of the absence of hostility and kufu requirements is met, then the dowry which is the “right of every bride candidate” in the Shari'a, must be determined at a minimum according to the local military dowry. It is not permissible for the mujbir guardian to set a dowry under the military dowry. This is one form of respect for the rights of children.

4. If all three have been achieved, then the next condition is not to force children to marry people who are feared to endanger their religion, soul, aqal and honor. For example, forcing him to marry someone who is elderly, unbelieving, unable to work, someone who has a broken mind and soul, and who like.

Opinions that are more complete and summarize all the opinions above can be found in the book Al-Fiqh 'ala Al-Madzâhib al-Arba'ati, as follows:

الشافعية – قالوا: يختص الولي المجبر بتزويج الصغيرة والمجنون صغيرا أو كبيرا والبكر البالغة العاقلة بدون استئذان ورضا بشروط سبعة: الشرط الأول: أن لا يكون بينه وبينها عداوة ظاهرة أما إذا كانت العداوة غير ظاهرة فإنها لا تسقط حقه. الشرط الثاني: أن لا يكون بينها وبين الزوج أبدا ظاهرة معروفة فلو زوجها لمن يكرهها أو يريد بها السوء فإنه لا يصح. الشرط الثالث: أن يكون الزوج كفأ. الشرط الرابع: أن يكون موسرا قادرا على الصداق. وهذه الشروط الأربعة لا بد منها في صحة العقد فإن وقع مع منها كان باطلا إن لم تأذن به الزوجة وترضى به. الشرط الخامس: أن يزوجها بمهر مثلها. الشرط السادس: أن يكون المهر من نقد البلد. الشرط السابع: أن يكون حالا. وهذه الشروط الثلاثة شروط لجواز مباشرة الولي للعقد فلا يجوز له أن يباشر العقد أصلا إلا إذا تحققت هذه الشروط فإذا فعل كان آثما وصح العقد

means: “Ulama 'among Syafiiyah said: Applies a specific requirement for a guardian mujbir who want to marry his young daughter, majnun woman, whether young or adult, adult and healthy minded single woman, if without her permission and permission, namely: 1) If there is no real hostility between the two children and his guardian. If there is potential for hostility but it does not appear to be real, then that potential cannot abort the right of the mujbir guardian. 2) If there is no hostility between the child and the future husband who is eternal and can be known by the end of life and spiritually by people living around him. Such as the child is about to be married to the person he hates or the person who wants evil with him, then the marriage is not valid. 3) If the prospective husband is sekufu. 4) If the prospective bride is a person who is able to give her dowry. These four conditions are mandatory conditions for the validity of marriage contracts. If there is a vacancy of one of the four, then cancel the marriage contract if he is not asked for permission and express his pleasure with him. 5). If marrying off the child with a dowry mitsil, 6) if the summit dowry consists of state valuables, and 7) if the dowry is paid in cash. The last three conditions are conditions for mayors to adopt. Thus, he may not carry out the marriage contract at all unless it is evident that these three conditions are fulfilled. And if he insists on doing it, then he is guilty, even though his contract remains valid. “[Syeikh Abd Al-Rahmân al-Jazîrî, al Fiqh ‘ala Madzâhib al-Arba’ati li al-Jazîri, Beirut: Dâr al-Kutub Al-Ilmiyah, tt.: 4/24]

[1945995] Wallâhu alam bish shawab

Ustadz Muhammad Syamsudin , Chairperson of BM Qanuniyah Formulation Team NU 2019 National Conference and PP Caregiver Hasan Jufri Putri, P. Bawean, East Java


This Article was Published On: NU Online

Translated by Google Translate


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