Limiting the Right of Marriage Prevention by Negligent Fathers: A Reconstruction of Article 62 of the Islamic Law Compilation from the Perspectives of Al-Qurtubi’s Exegesis and Sadd Al-Dzari’ah

Abstract

Article 62, paragraph (2) of the Compilation of Islamic Law provides legitimacy for the right to prevent marriage to fathers who do not perform their duties as family members, or what could be called neglectful fathers. This raises legal issues if this right is abused by fathers to prevent their children from marrying for selfish or materialistic reasons. This study aims to critique Article 62(2) of the Compilation of Islamic Law (KHI) and provide supporting arguments for the reconstruction of the article based on the interpretive perspectives of Al-Qurtubi and Sadd Dzari’ah. The research method applied is juridical-normative with a legislative and conceptual approach. The findings show that there is a legal disharmony between Article 62 Paragraph (2) of the KHI and Article 49 Paragraph (1) of the Marriage Law, which regulates the revocation of parental authority if the parent seriously neglects their obligations to their children and behaves very badly. From the perspective of Imam Al-Qurtubi’s interpretation of Surah An-Nisa:34, the principle of qiwamah interpretation is conditional on financial support and protection, which then implies a basis for limiting guardianship. Meanwhile, from the perspective of Sadd Dzari’ah, granting the right to prevent marriage must be prohibited as a way to close loopholes for abuse of authority and prevent harm (mafsadah) to children. The reconstruction is carried out by removing the permission to grant legitimacy to fathers who do not perform the function of head of the family or by requiring the guardian to prove neglect in court so that the right to prevent marriage can be revoked.