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All Journal SAMARAH: Jurnal Hukum Keluarga dan Hukum Islam
Apriandi, Rudi
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Law, Crime, Criminology & Criminal Justice Social Sciences

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The Legal Standing of Incestuous Fathers as Marriage Guardians: Islamic Law, Administrative Practice, and Social Impact in Indonesia Arisman, Arisman; Apriandi, Rudi; Yusrial, Yusrial; Ashim, Muhammad
Samarah: Jurnal Hukum Keluarga dan Hukum Islam Vol. 10 No. 3 (2026): Samarah: Jurnal Hukum Keluarga dan Hukum Islam
Publisher : Islamic Family Law Department, Sharia and Law Faculty, Universitas Islam Negeri Ar-Raniry

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22373/b7bd0h27

Abstract

Incest between a biological father and his daughter raises serious issues in Islamic family law, particularly regarding the father’s legal standing as a marriage guardian (walī nasab). Although the father is normatively the primary guardian, his status becomes problematic when he is the perpetrator of sexual violence against his daughter, given the principles of substantive justice, child protection, and maqāṣid al-syarī‘ah. This article examines the legitimacy of an incest perpetrator as a marriage guardian through a normative–empirical approach, focusing on classical Sunni jurisprudence, national regulations, and the practices of the Office of Religious Affairs (KUA) in Gunung Kijang District. The findings show that the four Sunni schools generally recognize that a guardian who commits grave acts of immorality that threaten a child’s dignity and safety may lose his guardianship (sāqiṭ al-wilāyah). However, the absence of specific technical regulations leads the KUA to retain the father as guardian based on nasab, creating a gap between substantive norms and administrative practice and potentially causing revictimization. From the perspective of maqāṣid al-syarī‘ah, removing the guardianship of an incestuous father protects ḥifẓ al-nafs, ḥifẓ al-nasl, and ḥifẓ al-‘irdh. The study therefore calls for policy reconstruction and stronger KUA institutional mechanisms to prevent revictimization in Islamic family law
Co-Authors Arisman Arisman Ashim, Muhammad Yusrial Yusrial