Legal Reasoning for Legitimation of Child Marriage in West Java: Accommodation of Local Norms at Islamic Courts and the Paradox of Child Protection

Abstract

This article discusses challenges posed by the implementation of international human rights law through the case of child marriage in Indonesia. Supporting data consist mostly of court decisions and interviews with judges carried out at three separate Islamic courts in West Java. Results show that the Indonesian pluralistic legal system is structurally organized so as to accommodate human rights norms with religious concerns and customary practices, which therefore provides judges with significant leeway in arbitrating between different types of law, which conflict on the question of child marriage. Left at the discretion of judges, rulings on child marriage cases may result in religious or customary law being favoured over state and international law. Judges do so to ‘protect children’ from social stigma, which is associated with pregnancy and sexual intercourse out of wedlock.

Child Marriage as a ‘Solution’ to Modern Youth in Bali

“…Several studies show that zinah (extra-and pre-marital sexual intercourse) is a significant contributor to child marriages in Indonesia. For instance, in West Java, parents go to Islamic court to ask for marriage dispensation (legalization of marriage below the legal marriageable age, currently 16 for girls and 19 for boys) to marry their young children, in order to avoid zinah (Horii, 2020). ethnographic research in a village in West Java by grijns et al (2016) confirmed that the key element in most child marriage cases is fear of committing a conceptual framework consisting three elements-modernity, normative systems, and agency.…”

Differences in the effectiveness of audiovisual sex education by nurse and peer education on prevention of premarital sex

“…Indonesia which is a country with a majority of Muslims, premarital sexual relations are prohibited and considered as a Zina (sexual relations without legally married bonds) (Horii, 2020). The consequences of premarital sex are family stigma and social sanctions stating that disgrace that has an impact on the fear of teenagers choosing to abandon or even kill their newborn babies (Wong, 2012).…”

Problems with the Islamic legal system regarding child marriages in Indonesia during the covid-19 pandemic period

“…The first aspect discusses legal provisions of child marriages normatively in terms of Islamic, national, and international law (Hasibuan, 2019;Sudantra & Laksana, 2019;Ullah et al, 2021: Ahonsi et al, 2019Akter et al, 2022;John, Edmeades, & Murithi, 2019;John, Edmeades, Murithi, et al, 2019;Kohno et al, 2019;McDougal et al, 2020;Melnikas et al, 2020;Raj et al, 2020;Rumble et al al., 2018). The other aspect revolves around child marriage laws in practice, policies, and local culture of marriage (Grijns & Horii, 2018;Horii, 2020;Musawar et al, 2022;Rahiem, 2021;Rumekti & Pinasti, 2016;Supraptiningsih & Hariyanto, 2019;Supriyadi & Suriyati, 2022;Wantu et al, 2021). Nevertheless, the study of child marriages that includes studies of formal legal law and the practice of child marriages in Indonesia as well as their problems regarding the Islamic legal system in Indonesia has not been thoroughly studied.…”