Existence of Wali Mujbir Syafi’i Fiqh from the Perspective of Law No. 12 of 2022 on Sexual Violence Crimes

Abstract

Forced marriage by guardians is recorded as a form of sexual violence in Indonesia. Government regulation Article 10 of Law No. 12 of 2022 explains that forced marriage is divided into 3, namely child marriage, in the name of culture, and rape victims. The background of this research is due to the problem of the great authority held by the guardian of the mujbir as the guardian of the marriage of children or grandchildren. This great authority is in the form of forced marriage carried out by the guardian of the mujbir without the consent of the bride. The concept of the guardian of the mujbir is a concept contained in the views of the Imam Syafi’i school of thought, as one of the schools of thought widely used in Indonesia. The practice of the guardian of the mujbir in Indonesia certainly raises problems when associated with the provisions of Article 10 of Law Number 12 of 2022, which states that forced marriage is a criminal act of sexual violence. So there are two legal problems. First, is it possible for the view of the Imam Syafi’i school of thought on wali mujbir to be applied in Indonesia second, how is the legitimacy of the authority to force marriage held by the wali mujbir reviewed from the objectives of Islamic law maqashid sharia By using the normative legal research method with a conceptual approach and literature study method, the results obtained are that the concept of wali mujbir is contrary to Law Number 12 of 2022 because it causes forced marriage which is a criminal act of sexual violence so that the view on the concept of wali mujbir cannot be implemented in Indonesia. Viewed from the perspective of its benefits, the concept of wali mujbir is not more beneficial. It causes more forced marriage practices and does not protect women and their rights.

Keywords

• forced marriage
• maqasid syari’ah
• wali mujbir