Contestation between Fiqh and Culture in Indonesia: The Maqāṣid al-Sharī’ah Paradigm in Dangers of Forced Marriage against Women

: This article addresses the contentious issues between Islamic Jurisprudence ( fiqh ) and cultural practices related to forced marriage. Motivated by the widespread prevalence of forced marriage in society, often perpetuated with religious arguments, the research aims to provide insights into the meaning of the term “ ijbar ” in fiqh discourse. While fiqh interprets “ ijbar ” as a custodian’s right to coerce their daughter, the article highlights the specific term “ ikrah ” for coercion in Islamic law. Utilizing a qualitative method, the study involves document analysis through an in-depth examination of fiqh literature. Data sources include classical and contemporary jurisprudence literature, information on forced marriages in Indonesia, and religious fatwas from the Indonesian Women’s Ulama Congress (KUPI). The article argues that forced marriage contradicts the maqāṣid al-sharī'ah, evidenced by spiritual and religious decline, domestic violence, restricted access to education


A. Introduction
Forced marriage brings about various consequences.Apart from having an impact on oneself, forced marriages also have an effect on interpersonal relationships between parents and children as well as customs. 1 Apart from causing conflict and tyranny, the burden on women is multiplied when the victim becomes sick due to menstruation, fatigue (kurhan), and multiple burdens (wahnan' alā wahnin) due to pregnancy, childbirth, 2 parturition, breastfeeding, and others.The physical impacts of forced marriage are significant.Reproductive function may be disrupted due to, for example, abortion or forced sexual intercourse, which in this context includes rape, bleeding, uterine cancer, and even vaginal infections.Forced marriage not only has physical impacts but also biological ones. 3cording to the National Commission on Violence against Women, forced marriages increased, along with the increase in child marriage by 300 percent.They also mentioned that the majority of victims are women and girls. 4etween 2018-2022, there were 213 cases of problematic marriages due to forced marriages.From this data, 119 cases were decided for divorce by 80 Religious Courts in Indonesia, 211 cases were processed at the court of first instance, 1 case at the appellate level, and 1 case at the cassation level. 5rced marriage has many unfavorable impacts (mafsadat) and dangers (maḍarat) that are detrimental to women, making it difficult to form a sakīnah and maṣlaḥah family.The impacts are ruinous and systemic in women's lives.Socially, the impacts include; trauma, depression, negative stigma, divorce, The Contestation between Fiqh and Culture ….
family conflict, infidelity, ostracism if they refuse marriage, and can even have fatal consequences such as suicide. 6rced marriage also has negative effects on reproductive function, especially when sexual violence in marriage (the victim is conscious or made unconscious by the perpetrator), unwanted pregnancy, and unsafe abortion are involved.Falsification of documents for children born in unregistered marriages, rejection and hatred of children born from forced marriages by their mothers, as well as a decrease in the spirituality and religiosity of the victims, are also common in forced marriages. 7onomically, forced marriages that occur among the poor are also prone to lead to economic neglect.Family's fragile economic foundation also triggers conflicts that can lead to divorce.It is corroborated by the testimony of a young mother who was a victim of forced marriage who suffered domestic violence, was forced to become pregnant (if she didn't want to get pregnant, she had to give up her husband for polygamy), and economic neglect by her husband, resulted in her filing for divorce.When she filed for divorce against her husband, her family disowned her because she was considered disobedient, so she attempted suicide three times and was admitted to a mental hospital due to a mental disorder. 8art from the cultural side, understanding of fiqh literature is still very limited.So far, the meaning of ijbar is still understood as coercion from a custodian to someone under their care. 9In fact, if traced in al-mausū'ah al __________ fiqhiyyah, the meaning of ijbar is very broad. 10In addition to physical, psychological, and fiqh substance problems, forced marriages also lead to methodological problems, in this case, maqāṣid al-sharī'ah.Up until today, maqāṣid al-sharī'ah is often positioned as an effort to safeguard the understanding so that someone does not deviate from the meaning of Shāri' (sharia maker).However, if so, in the case of forced marriage, maqāṣid alsharī'ah cannot answer the problems in it.It is because the examples presented by the scholars so far have only revolved around matters of worship; they do not try to develop maqāṣid al-sharī'ah so that it can be understood more comprehensively. 11rced marriage is a long-standing, centuries-old phenomenon whose prevalence does not seem to be decreasing anytime soon.Forced marriage in Indonesia is an iceberg phenomenon that is very concerning and has a serious and dangerous impact (ḍarar) on women, such as physical, psychological, economic, social, and other impacts.In some parts of Indonesia, there are still many traditions that lead to forced marriages, such as kawin tangkap in Nusa Tenggara Timur, perjodohan anak in Madura, 12 tabaruk marriage in Situbondo and Bondowoso, 13 nikah sirit among the indigenous people of Lampung Pepadun, 14 the purse tradition in Lombok, and the pattongko siri tradition in Gowa. 15om the cases above, the author is interested in discussing the new maqāṣid al-sharī'ah paradigm of forced marriage, which is still complicated.It is said to be complicated because forced marriages are intertwined with long-__________ standing societal traditions in which perpetrators of forced marriages abuse power relations.The perpetrators are role models or community leaders with strong power and authority.Forced marriage is supported by law enforcers who are supposed to protect society, while maqāṣid al-sharī'ah still refuses to move from its initial position as interpreted by the scholars.Furthermore, religious interpretations used as justifications for the practice of forced marriages, such as custodians' ijbar rights of daughters, which still require academic clarification, emphasizes the importance of understanding in detail the new paradigm of maqāṣid al-sharī'ah in terms of the dangers of forced marriages against women.
On forced marriage, there is much research, eventhought, though there are empty spaces that need to be filled.Virginia Caputo argues that forced marriage is related to a person's learning received as a child; there is a correlation between feminism and the learning received as a child, according to them, behavior as an adult reflects social and local behavior.Caputo also reveals that in forced marriages, children are positioned as victims.Still, in her article, Caputo forgets to explain the relationship between education and the local traditions, because if seen from the community's experience, it is not tradition or education.Still, the law that regulates the age limit for marriage is the main factor in the occurrence of forced marriages because in Indonesia, limiting the age of marriage is part of a political issue; with the drafting of the Marriage Law, 16 Morevore, people are asking for marriage dispensations for the classic reason that parents are worried about having sexual relations before marriage, more than that. 17lph Grillo stated that the tradition of forced marriage has deep roots in Asia and is widely practiced by noble families such as kingdoms or Islamic boarding schools.However, Grillo's statement is still limited to discussing tradition and culture, while Ouattara explains more about forced marriage and deprivation of human rights. 18There are several social implications in cases of __________ forced marriage, health, marriage where only one party agrees, and marital rape.What is interesting is that Ouattara describes the practice of forced marriage as the same as perpetuating slavery.
Therefore, this article will complement the shortcomings of previous research by examining religious texts that have been used to legitimize the ability to force marriage.This article describes how maqāṣid al-sharī'ah protects women from the dangers of forced marriage.
Furthermore, this article will clarify the meaning of ijbar which is widely understood as the custodian's coercive right to his daughter.However, the traditional leaders, parents, religious leaders, and the government only understand the concept of ijbar in part, so that women's human rights are lost in making their choices.To answer this problem, this article will classify several questions: how has ijbar been interpreted in fiqh?How does maqāṣid alsharī'ah identify to forced marriage?and how does maqāṣid al-sharī'ah provides substantive meaning to the ijbar?

B. Method
To obtain complete data, this article uses qualitative research methods.This research uses a library research method to search the literature by determining the topic of writing (ijbar).The data was collected by selecting themes, (ijbar and maqāṣid al-sharī'ah).The determination of literature based on year includes literature by Salaf scholars (scholars' opus before 350 H) and by Khalaf scholars (scholars' opus after 350 H).The strategy for collecting data was carried out by tracking literature from 35 books and 20 journals, classifying data on forced marriages in Indonesia from the supreme court decision in 2018 to 2022 and the religious fatwa of the Indonesian Women's Ulama Congress (Kongres Ulama Perempuan Indonesia -KUPI) regarding the dangers of forced marriage in 2019.KUPI identified the practice of forced marriage in three provinces including eastern, central, and western Indonesia.The analysis in this article is by tracing the meaning of the word ijbar in several fiqh literature, then determining keywords (ijbar, forced marriage, maqāṣid al-sharī'ah) and selecting several literatures as references including Shāfi'i school of jurisprudence literature, qawāid al-fiqhiyyah (fiqh legal maxime) and the work of Wahbah al-Zuḥailī as a representation of fiqh works by contemporary scholars.
The Contestation between Fiqh and Culture ….
Sources of documents were taken from old and contemporary Islamic jurisprudence, articles in reputational journals that discuss the age of marriage, women's human rights, and maqāṣid al-sharī'ah.
Data analysis techniques are carried out by collecting library data, reading and taking notes, and managing research materials that specifically discuss forced marriage.From the data shown, Custom-based Forced Marriages in Indonesia are still widely believed, and the types of these forced marriages vary, among others, coerced marriages from parents, forced marriages from children to parents and forced marriages from custom to the community.The reasons for continuing the practice of forced marriages also vary as it is not only for material reasons, such as very expensive marriage costs, but also for other reasons, such as kinship and wish for better offspring.
Data from the Supreme Court Decision for 2018-2022 show that there were 213 cases of problematic marriages due to forced marriages.Of this number, 119 cases were decided in divorce by the Religious Courts.Meanwhile, the National Commission on Violence against Women (Komnas Perempuan) notes that there was a 300 percent increase in cases of forced marriage in line with the increase in cases of child marriage. 19The Indonesia Women's Ulama Congress (KUPI) emphasizes that the data from the two institutions were not actual as many cases of forced marriage were not reported to the relevant institutions. 20ses of forced marriage in Indonesia are increasingly complicated to deal with because it is strengthened by several factors, namely culture, interpretation, religion, and state regulations providing opportunities for forced marriage to legitimize.Even though Islam prohibits forced marriage according to the al-Qur'an arguments and the hadith of the Prophet Muhammad. 21ble 1 shows that six provinces in Indonesia still practice forced marriage.Even though, in practice, some forced marriages are registered and some are not registered, both of them have a negative impact on women, __________ 19 Wardah, "KUPI: Wajib Hukumnya Melindungi Perempuan dari Kawin Paksa." 20Arifah Millati Agustina, "Assessing Women Ulama's Perspectives on Gender Contestation and Law Establishment in Indonesia," Jurnal Ijlil: Indonesian Journal of Law And Islamic Law 4, no. 1 (2022): 2-7. 21Agustina.
because, through coercion, women's rights as subjects are taken away.The whole practice of forced marriage is basically aimed at the good of women, but in reality, forced marriage has more negative impacts than positive impacts, such as tabarruk marriage in East Java, the choice of a prospective husband from someone who is respected seems to contain good but from this arranged marriage system many women experience trauma, stress and unwanted pregnancy. 22Apart from tabarruk marriages, forced kabihu marriages in Sumba also show the same thing, even though the purpose of these marriages is to create honor in the family; in this case, women are again victims who suffer more harm, especially in terms of mental health.The Contestation between Fiqh and Culture ….

Sasak, Lombok
Merariq marriages are marriages where a man has to kidnap or elope a woman (whom he wants to be married to) before performing the wedding rituals. 27rried to avoid expensive marriage costs

South Sulawesi
Perkawinan lari bersama and Perkawinan bawa lari, are types of forced marriages from children to their parents.Perkawinan lari bersama and Perkawinan bawa lari, are carried out to avoid expensive marriage costs (dowry money) or burdensome traditional wedding ceremonies-and to avoid relatives who do not agree with the marriage.These marriages can be identified with elopement. 28

Error in Understanding Ijbar
In fiqh, coercion is called ikrah, which is an act of urging others to do something against their will. 29Ikrah is also interpreted as an act of coercing someone by abusing power relations. 30Forced marriage is also considered a manipulative act because it places a person in an intimidated condition. 31The coerced party is a person whose power or authority has been weakened so they cannot evade.From some of these definitions, forced marriage against women is an act of forcing a woman to marry or someone's action against another person who is under their power to enter into an unwanted marriage.Coercion is carried out in various ways to evoke the victim's obedience to submit, accompanied by threats that result in both psychological and physical disturbances to women.
In fiqh discourse, the term ijbar is often interpreted as a coercion right by a custodian to their daughter, even though ikrah specifically means coercion.Ijbar linguistically is a derivation of the word ajbara-yujbiru which comes from the verb form jabara, which means aṣlaḥa and aḥsana.Thus, the meaning of ijbar terminologically cannot be separated from its base meaning.That said, ijbar, in fiqh terminology, means the responsibility of parents to choose a partner for their daughter, who cannot make a choice for herself.In the context of custodianship, Wahbah al-Zuḥaili defines a custodian as more than ṣāḥib alsulṭah wa alqudrah (a person who has power), namely ṣāḥib al-maḥabbah wa al-nuṣrah (a person who provides care and protection). 32Taking into account the benefit of women in custodianship, forced marriages are not a reflection of giving care and protection, but the coercion of the perpetrator's will in the name of love.
Forced marriage, in general, might bring about negative impact (mafsadat) and dangers (maḍarat) to women.In some cases, the impact can be manifold.Victims of forced marriages may be traumatized, depressed, receive negative stigma from society, become victims of divorce, family ostracism, infidelity, and worse, suicide.Forced marriage can also affect reproductive health, such as unwanted pregnancy, marital rape, and abortion.Coercion in sexual intercourse can cause vaginal bleeding, irritation, and infection, resulting in prolonged trauma.Carrying out the reproductive function with the desired partner is already painful for women, let alone with an undesired partner; in this case, the impact is twofold (physical and psychological).
Letting women experience the bad effects and dangers of coercion is contrary to the Qur'an, hadith, and the principles of Islamic law.Forced marriage in women contradicts the purpose of marriage as set forth in the Qur'an Surah al-Rūm: 2133 because these actions do not glorify fellow creatures as explained in the Qur'an al-Isrā', 70. 34In principle, marriage must be carried out with full awareness and willingness (tarāḍin) because men and women are complete subjects in life.Allah forbids coercion against someone that results in bad effects. 35Therefore, utmost readiness and willingness are required in __________ The Contestation between Fiqh and Culture ….
marriage. 36Allah also commands a person to treat women well in marriage. 37n the Qur'an surah al-Nūr 33, Allah also strictly forbids someone who forces other people to commit mafsadat, such as forcing women to marry. 38rced marriage against women also contradicts the spirit of hadith that grants women with rights to decide their partners. 39Rasulullah explained the strictness of the sharī'ah by requiring a dialogue process and placing women as decision-makers in determining partners. 40Women also have rights over their body, thus, the Prophet emphasizes the importance of consent from women before marrying, whether girls and widows. 41Not protecting women from the dangers of forced marriage is contrary to the five objectives of the sharia (maqāṣid al-sharī'ah), 42 namely: protecting the religion (ḥifẓ al-dīn).Forced marriage and its negative consequences contradicts the principle of protecting the religion because it can result in reduced faith in God.A person who is coerced will be more likely to blame divine destiny for injustice towards them; protecting wealth (ḥifẓ al-māl).
Forced marriage often leads to women being unable to access economic sources and vulnerable to economic neglect; Protecting the mind (ḥifẓ al-'aql).In this case, women, especially underage children, are likely to suffer one of the consequences of forced marriage, namely dropping out of school; protecting soul (ḥifẓ al-nafs).In this case, women in forced marriages are vulnerable to domestic violence because after marriage women will go through a long-term reproductive process.Unwanted pregnancy has significant physical and psychological effects; protecting lineage (ḥifẓ al-nasl).Forcing a marriage on women might lead to reproduction-related problems, such as marital rape, child intercourse, unwanted births, reproductive health disorders, mental health disorders in the mother, and fetal underdevelopment.From this explanation, maqāṣid al-sharī'ah can be interpreted with a new paradigm.The implementation of ḥifẓ al-dīn is to allow women to marry someone who is beneficial for them.The implementation of ḥifẓ al-māl is to give opportunities to women to be more productive and have economic independence.The examples of ḥifẓ al-'aql include respect women's ideas and thoughts for their future in a way that is not intimidating or restraining.In ḥifẓ al-nasl, women have the rights to choose the lineage, status and quality of the potential partner.For the implementation of ḥifẓ al-nafs, women have the rights to protect themselves from the forced marriage that might affect them negatively, physically and psychologically. 43he implementation of maqāṣid al-sharī'ah above is in line with the fiqh principles of la dharara wala dhirara (not doing harm and repaying harm with another harm), 44 because it can minimize the negative effects of forced marriages.Furthermore, the dangers of forced marriage are also corroborated by the rule of dar 'al-mafāsid muqaddamun 'alā jalb al-maṣāliḥ (preventing damage is more important than taking benefit), prioritizing preventing forced marriages rather than marrying women to unwanted partners 45 and the rule of yudfa'u bi-qadr al-imkān (harm should be prevented as much as possible) that strongly support action to minimize the negative impact on women in forced marriages. 46s stipulated in law, culture is also very complex in society's.Because culture is the highest value that is highly respected and guarded, culture will even have the force of law to be guarded and preserved. 47In this context, the __________ 43 The fatwa of the Congress of Indonesian Women's Ulama on 24-26 November 2022 in Jepara resulted, the law protecting women from the dangers of forced marriage is mandatory as stipulated in the Qur'an surah al-Nisa' verse 19 which orders to treat women well, the basic another is the Hadith of the Prophet SAW which also prohibits someone from committing injustice to women, and including a form of injustice is to force marriage to women.The fatwa of Indonesian women's Ulama also explains that women are full subjects of life and personally have bodily rights.Tim Perumus Musyawarah Keagamaan KUPI, Hasil Musyawarah Keagamaan Kongres Ulama Perempuan Indonesia (KUPI) Ke-2, 120.
The Contestation between Fiqh and Culture ….
contestation between fiqh as a product of Islamic law and culture is difficult to find a common ground.Contemporary jurisprudence, which prohibits forced marriage, is contrary to the practice of forced marriage, which has mushroomed in society.As in the previous explanation regarding the meaning of ijbar, namely the custodian's love and responsibility for the child under his care, Islamic law strengthens the position of the custodian as the party who has responsibility, not the party who coerces and eliminates women's human rights.Changing culture is not easy, but at least someone must have an understanding or perspective that Islam does not support forced marriage.
The contestation between culture and jurisprudence in forced marriage is more influenced by power relations.Traditional leaders to residents, parents to children, or colleagues who belong to the elite class to proletarian groups.This power of power arises, among other things, from religious doctrine which is only read in fragments, including interpreting the ijbar with a very patriarchal meaning, that women are governed, 48 not regulated, positioning children as objects that can be controlled, whose fate is determined without being given choices.a person who has the authority to coerce, has the driving force to coerce someone who is under his control.

Maqāṣid al-Sharī'ah: From Protection to Development
Maqāṣid al-sharī'ah is an alternative method of law discovery. 49The aim of understanding maqāṣid al-sharī'ah is to identify the scale of priorities in various issues and maintain the values contained in the texts so that they are in accordance with the aims and objectives of the sharia makers (shāri'). 50Islamic legal theorists regard maqāṣid al-sharī'ah an important tool to be mastered by every mujtahid, because the main goal of maqāṣid al-sharī'ah is to create benefit and avoid harm, or to benefit and reject harm. 51_________ waqā'i (revelations are no longer revealed, while events/legal needs continue to develop), propelling mujtahid (scholars/legal experts) to carry out ijtihad for legal reform and formulate a complete understanding of fiqh. 58e collaboration of several keywords above gives birth to a new paradigm important in studying fiqh discourse.First is the principle of "permissibility" (al-ibāḥah al-aṣliyah/original permissibility), where the legal status of mubāḥ is the original law of everything.This principle conveys the message that all mukallaf actions other than ritual worship carry mubāḥ status, unless there are instructions stating otherwise. 59wever, in its implementation, the principle is closely related to the second value in the axiological domain, or commonly known as al-Shathibi or "impact analysis" (i'tibar al-ma'al), namely positive impact (al-maṣlaḥah) and negative impact (al-mafsadat) or human actions. 60The logic is that if an action is positive, that very action acts as a "means" (wasīlah/dhari'ah) that must be realized so that the positive impact can be realized.This logic commonly known as fatḥ al-dhari'ah is manifested in the popular fiqh rule, mā lā yatimm al-wājib illā bihi fahuwa wājib, which means that a supporting tool has obligatory status if it affects human actions that are legally obligatory.Meanwhile, if the resulting impact is negative, the human action must be prevented to avoid the negative impact that arises.This logic is known as sadd al-dhari'ah, which broadly means the same as legal "preventive" measures, namely preventing human actions with permissible status (mubāḥ) if they have a strong potential to bring about negative impacts (mafsadah). 61However, according to Jasser Auda, if the purpose of Islamic law is only to maintain, then the law will not develop. 62 is individualistic and incomprehensive. 71Therefore, it is necessary to reformulate maqāṣid al-sharī'ah. 72e five pillars above must be understood broadly beyond the purpose of maintaining with the help of a new paradigm. 73Fiqh must also be weaned from its ideological overtones.If fiqh and Islam are still understood as ideologies, then both of them will forever be detached from their human values and become battlefields that subvert justice, reason and morality.Fiqh must personify itself in historical locality and temporal movement.The existence of fiqh in particular, and Islam in general, actually has an authoritative basis. 74qāṣid al-sharī'ah is an attempt by shāri' (lawmakers) to show ontology in a case, therefore the following is an example of the implementation of maqāṣid al-sharī'ah in several cases: 1) The context of dangers of forced marriage against women is the most relevant with the core tenet of ḥifẓ al-nafs in protecting women's physical and psychological health from threats and intimidation against them.This statement is supported by al-Hariri affirming that benefit must be free from coercion (waliyy al-amri ma'mūrun bi-mura'ah al-maṣlaḥah, walā maṣlaḥata fi ḥaml al-naṣ 'ala fi'l al-makrūh). 752) Protecting women from the dangers of forced marriage is mandatory, because any harm in any form must be avoided and the meaning of the concept of mujbīr custodian in fiqh needs to be expanded.Wāli mujbīr, referred to as a custodian who holds coercive rights to someone under their care, must be reinterpreted, because in fiqh study, the term coercion often uses the term ikrah. 76-Qur'an Surah al-Nisā' verse 19 also hints at treating women well.Furthermore, the hadith of the Prophet Muhammad also prohibits someone from being unjust to women, including forcing marriage on them. 77In Nur Rofiah's words, women are complete subjects in life and personally have bodily rights that only women can understand. 78Some ulamas also affirm the obligation to protect women from the dangers of forced marriages because, in a marriage contract, there should be no coercion. 79nce forced marriage is not only imposed by parents onto their children but also vehemently supported by custom, some parties need to be actively involved in protecting women, such as community leaders, religious leaders, traditional leaders, communities, and parents.They must join forces to protect women from the dangers of forced marriage.Traditional leaders or parties with authority must participate in minimizing forced marriages on women.This statement is in line with the substance of the Qur'an Surah al-Nūr verse 31, which prohibits all parties from doing damage (mafsadat).

Conclusions
In the context of the dangers of forced marriage against women, which is still a tradition in several regions and supported by a partial understanding of the concept of ijbar, where it is understood that a custodian has the right to force a marriage on a woman in their care (the meaning of ijbar is not only about custody but also affection for the person being supported), there must be an alignment between rules and tradition in Indonesia.Traditions believing that forced marriages are permissible do not have to be followed if the negative impact on women outweighs the positive.