Ivan Tanoto, Andini Zelikho

Pernikahan Tanpa Persetujuan Salah Satu Pihak Dalam Perspektif Islam Dan Hukum Positif Di Indonesia

Introduction

Pernikahan tanpa persetujuan salah satu pihak dalam perspektif islam dan hukum positif di indonesia. Mengulas pernikahan tanpa persetujuan calon pengantin dari perspektif hukum Islam dan hukum positif Indonesia. Analisis hak ijbar wali, UU No. 1 Tahun 1974, dan pembatalan pernikahan.

Abstract

Some fiqh scholars are of the opinion that parents or guardians can forcibly marry their daughters, which is then known as the right of ijbar and parents who can force children to marry are called mujbir guardians. In reality, nowadays there are still parents who force their children to marry the man of their father's choice. This is not in line with Law no. 1 of 1974 concerning marriages carried out based on the consent of the prospective bride and groom. If the marriage does not have the consent of one of the parties, it can be called a forced marriage. This research is descriptive analysis which leads to normative legal research, with a research approach to legal principles. The data source was obtained from secondary data, namely by means of literature study. The data obtained was then analyzed using qualitative analysis. Based on the research results, it was found that legal certainty regarding marriage conditions related to the bride's consent when being betrothed by her guardian must exist. It turns out that the study of jurisprudence is not relevant to granting the guardian the right of ijbar to marry his daughter without the child's consent. The consequences of a marriage without the consent of the prospective bride are considered bad, because a marriage that contains an element of coercion will only bring harm to both parties (husband and wife). where according to the Law and KHI the marriage can be annulled.

Review

This paper, titled "Pernikahan Tanpa Persetujuan Salah Satu Pihak Dalam Perspektif Islam Dan Hukum Positif Di Indonesia," tackles a highly pertinent and sensitive issue: forced marriage, specifically examining the concept of *ijbar* (the guardian's right to compel marriage) within Islamic jurisprudence and contrasting it with positive Indonesian law. The abstract effectively highlights the tension between traditional fiqh interpretations that grant parents or guardians the right of *ijbar* and the contemporary legal framework of Law No. 1 of 1974, which unequivocally mandates mutual consent for marriage. This research is critical in addressing a deeply ingrained societal practice that often conflicts with fundamental human rights and modern legal principles, making it a timely and valuable contribution to legal and Islamic studies. The research employs a descriptive analysis, leaning into normative legal research with an approach centered on legal principles. Utilizing secondary data primarily through literature study and qualitative analysis, the methodology appears suitable for exploring the normative conflict and deriving legal certainty. The findings articulated in the abstract are robust: they assert the necessity of legal certainty regarding the bride's consent, conclude that the right of *ijbar* is not relevant in modern jurisprudence, and emphasize the detrimental consequences of marriages lacking consent. Critically, the study points out that such marriages, being coercive, are harmful to both parties and are subject to annulment under Indonesian Law and the Compilation of Islamic Law (KHI), providing a clear legal recourse against forced unions. Overall, the paper presents a compelling argument against forced marriage, demonstrating a clear alignment with contemporary legal and ethical standards. Its strength lies in its interdisciplinary approach, analyzing a complex issue from both Islamic jurisprudential and positive legal perspectives to advocate for individual autonomy and consent in marriage. While the abstract could perhaps benefit from briefly mentioning the specific schools of thought within fiqh that support and oppose *ijbar* to provide more context, its core message is unequivocal. This research offers valuable insights for legal practitioners, policymakers, and religious scholars, contributing significantly to the ongoing discourse on marriage laws, human rights, and the evolving interpretations of religious doctrines in Indonesia.

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