(Fikih Perwalian) Guardianship Jurisprudence: Rereading Guardianship Rights for the Protection of Women from Forced Marriage and Child Marriage

Rumah Kita Bersama (Rumah KitaB) with the support of the Oslo Coalition initiated a 10-month text study with 8 rounds of discussion on wilâyah and qiwâmah. This initiative emerged after realizing that contemporary Islamic studies further strengthened the building of the concept of wilâyah and qiwâmah which gave rise to the asymmetry of relations between men and women. The results of this study were then poured into a book “Guardianship Jurisprudence: Rereading Guardianship Rights for Protection of Women from Forced Marriage and Child Marriage.” The study was carried out because almost all fiqh religious arguments related to the practice of child marriage centered on father’s rights (wilâyah), while those related to the protection function centered on men in their roles as husbands (qiwâmah).

In this study of wilâyah and qiwâmah the Rumah KitaB’s team based its arguments on the Qur’an, hadith, the works of the ulama using the methodology of reading the text maqâshid al-syarî’ah, ushul fiqh, and gender. With these three analytical tools, solid arguments are built to reject the interpretation that has been directed at strengthening the asymmetry of male and female relations which contributes a lot to the poor social, economic and political status of women.

This book seeks to bring Muslim understanding and contributions from the Islamic experience in Indonesia towards the purpose of the benefit of Shari’a in the matter of the rights of parents (fathers) or mujbir guardians in marriage and rectifying subjective understandings of gender bias that do not take into consideration the future interests of girls.

A number of innovations have been carried out by ulama, jurists and religious judges from Indonesia in overcoming asymmetry such as Prof. Dr. Teungku H. Mohammad Hasbi Ash-Shiddiqiy, Prof. Dr. Mr. Hazairin Harahap, S.H., Dr. (HC). KH. Sahal Mahfudz, and Dr. H. Andi Syamsu Alam, S.H., M.H. Similar efforts were also made by modern scholars such as Rifa’at Rafi ‘Al-Thahthawi (Egypt), Thahir Al-Haddad (Tunis), Muhammad Abduh (Egypt), and Qasim Amin (Egypt). In essence, they are trying to contextualize social change with the text so that the text remains relevant in overcoming theismism of gender relations in the family.