Reconstruction of Marriage Law: Judges’ Progressive Reasoning Based on Maqāṣid in Addressing Divergent Interpretations in Indonesian Courts

: This study elucidates the rationale behind judges’ decisions to permit the registration of interfaith marriages, unregistered or underhanded marriages, and underage marriages. These three issues are subject to divergent opinions, reflecting the multi-interpretational nature of social reality. This study reveals the judicial process of law discovery in resolving rules subject to multiple interpretations. Employing a qualitative approach, primary data were obtained through interviews with judges from the Surabaya District Court and the Sumenep Religious Court. The findings indicate that in addressing cases characterized by ambiguity, lack of regulation, and multiple interpretations, judges rely not only on the Marriage Law but also on human rights provisions and the supreme legal authority of the Indonesian Constitution. Upon recognizing a legal vacuum, the judges opted to revert to higher norms, exercising judicial discretion. Reconstruction occurs when judges, encountering a lack of clear rules, prioritize human rights and the constitution over strict textual interpretations of fiqh . This progressive approach allows judges to balance contextual norms with the evolving objectives of sharia in society, thereby fostering justice in marital matters.


Introduction
The positivization of Islamic law within state legislation has consistently posed challenges, both during its formulation and in its subsequent application, leading to ongoing dialectical tensions.This issue is evident in the Marriage Law; since the enactment of Law No. 1 of 1974, there has been no significant revision that adequately reflects the contextual and social changes within society. 1 Even with updates, such as the amendment to the marriage age stipulated in Law Number 16 of 2019,2 there remains significant stagnation.This lack of comprehensive reform has resulted in a cluster of issues characterized by multi-interpretations, both within individual chapters and between different laws.
There are three significant issues of multi-interpretation within marriage law that pose serious challenges: firstly, ambiguity between chapters within a law; secondly, lack of clarity on whether certain practices are prohibited or permitted, leading to diverse understandings and practices within the community; and thirdly, conflicting provisions where certain actions are prohibited in some laws but exceptions or allowances are provided in others. 3These legally binding chapters suffer from vagueness despite their designation. 4Within marriage law, multiple interpretations arise across nearly every aspect, 56 prompting judges in both courts and communities to frequently exercise their own discretion.Some of the provisions within marriage law susceptible to multiple interpretations include the following: Firstly, concerning the validity of marriage, ambiguity arises from the provisions of Chapter 2(1) and (2).Paragraph (1) asserts that a marriage is considered valid if conducted in accordance with religious and belief systems, whereas paragraph (2) stipulates that a marriage is valid only upon registration with the Office of Religious Affairs.This dichotomy suggests that while paragraph (1) recognizes the legality of unregistered marriages, paragraph (2) emphasizes the requirement for registration to confer legal validity. 7Various interpretations exist regarding the validity of marriage, either according to religious provisions or requiring registration.According to paragraph (1), adherence to religious provisions suffices to validate a marriage, even without registration. 8he legal implications of chapters with multiple interpretations significantly affect the prevalence of nikah sirri (unregistered marriages), which remains prevalent in Indonesia, particularly within Javanese and Madurese communities.Nikah sirri finds its basis in the legality affirmed by Chapter 2(1) regarding the validity of marriages conducted in accordance with respective religious beliefs.Within the community, Chapter 2(1) of UUP No. 1 of 1974 is perceived to legitimize the practice of nikah sirri.9This understanding is supported by the community's customary practices and interpretations of fiqh. 10 The vagueness and ambiguity within these two chapters foster the interpretation that marriage registration serves primarily as an administrative formality 11 rather than a determinant of marital validity.
Secondly, concerning interfaith marriage, Chapter 2(1) of Law No. 1 of 1974 implicitly indicates the "permissibility" of such unions.This interpretation arises from the provision that marriage is considered valid according to any religion.Within the community, there is an understanding that interfaith marriages are permissible, provided that each spouse adheres to their respective religious customs and beliefs during the marriage contract. 12Similarly, according to Law No. 23/2006, the population and civil registry office is authorized to issue marriage certificates for interfaith marriages upon court authorization. 13This administrative process confers legal recognition to interfaith marriages.
Differing perspectives regarding the "permissibility" of interfaith marriages stem from varying interpretations of chapters within laws and across different legal frameworks.Chapters 40 and 44 of the Compilation of Islamic Law in Indonesia (KHI) explicitly prohibit Muslim women from marrying non-Muslim men, indicating that Indonesian marriage regulations do not endorse interfaith unions.The conflicting interpretations between Chapter 2(1) of the Marriage Law and Chapter 40 of the KHI create contradictory social norms.This issue was notably highlighted in June 2022 when the Surabaya Religious Court approved an interfaith marriage application, underscoring the real-world implications of these conflicting interpretations. 14hirdly, regarding underage marriage, Chapter 1 of Law No. 16 of 2019, which amends Law No. 1 of 1974 on Marriage, stipulates that the minimum age for marriage for both men and women is 19 years. 15However, in Chapter 2 of Law No. 16 of 2019, an exception is provided for marriages conducted under the age of 19.Consequently, the prevailing public understanding is that underage marriage is permissible under the law.This aspect of the marriage law once again contributes to multiple interpretations, leading to perceived "violations" within the community. 16e presence of such multi-interpretable chapters and laws in community practice engenders diverse perspectives and even "contradictions" in regulations.This is evident in three aspects: 1) the prevalence of nikah sirri, which arises due to varying interpretations of paragraphs 1 and 2 of Chapter 1 of the Marriage Law, contributing to the continued prevalence of unregistered marriages; 2) the intersection of religious marriage laws, facilitating the practice of interfaith marriages through various means, such as marriages conducted abroad and subsequently registered at the Population and Civil Registry Office or authorized by district courts; 3) the ambiguity surrounding the minimum marriage age, allowing underage marriages to persist within society. 17Therefore, judges responsible for adjudicating marriage disputes 18 in court must adeptly analyze chapters with multiple interpretations in line with legal principles aimed at maximizing benefits and preventing harm.Similarly, religious leaders (such as kiyai, ustadh, tengku) who influence social norms must interpret justice within each multi-interpretable chapter of the Marriage Law without deviating from the principles of justice and societal welfare. 19This legal discovery is known as richtvinding.Judges are tasked not only with aligning with the intentions of the law but also with contextualizing its relevance to the customs, circumstances, and values of contemporary society. 20ogressive maqāṣid represents a formulation of legal discovery (richtvinding) that integrates Uṣūl al-Fiqh and contemporary social legal theory, 21 proving highly effective in interpreting chapters within modern laws characterized by multiple interpretations. 22The progressive maqāṣid method synthesizes maqāṣid al-sharī'ah theory from Islamic legal methodology with progressive legal theory pioneered by Sujipto Raharjo, incorporating foundational elements of legal reform.This interdisciplinary approach has given rise to a method of legal research known as "progressive maqāṣid". 23is research falls within the research area of "legal and social institutions" with a specialization in the area of case studies, where the method of legal discovery and the interpretation of authority towards an object are the targets. 24This research was conducted in East Java with two mapping variables; courts and community institutions. 25The research was conducted in district courts where judges adjudicate cases involving multiple interpretations, such as those concerning the recognition of marriages (ithbat nikah), marriage dispensations, and interfaith marriages.Concurrently, social institutions hold authority in addressing societal norms and regulations that evolve and give rise to multiple interpretations. 26The court variables encompass judges from the Surabaya District Court and the Sumenep District Court.

Overview of the Multiple Interpretation Problems
In Indonesia and several other countries adhering to the civil law system, judges are granted specific authority to explore the law (ijtihad) in cases where legislation does not provide clear guidance.Chapter 27 of Law No. 14 of 1970 mandates that judges, as enforcers of law and justice, must explore, follow, and understand the legal values prevalent within society. 27Under such regulations, judges must possess the ability to engage in legal discovery (rechtvinding) when faced with legal vacuums, multiple interpretations, and ambiguities. 28Therefore, the following illustrates a case of multi-interpretive marriage law that was adjudicated by a judge: Firstly, the legalization of interfaith marriage.A case involving the legalization of an interfaith marriage was presented to the Surabaya District Court by a Muslim male and a female applicant.They sought a marriage certificate from the Surabaya City Population and Civil Registry Office.After review, the office returned the application, stating that the marriage certificate could not be issued due to insufficient requirements. 29e applicants maintained their intent to marry based on their respective beliefs, rather than adopting their partner's religion.Consequently, they petitioned the Surabaya District Court to mandate the registration of their marriage with the Surabaya City Population and Civil Registry Office.They argued that religious differences should not be a barrier to marriage, asserting their stance based on human and civil rights.
The judge of the Surabaya District Court approved the marriage based on several considerations: 1) Chapter 27 of the Indonesian Constitution affirms that all Indonesian citizens possess the human right to marry fellow citizens, regardless of religious differences, while Chapter 29 guarantees the freedom of citizens to practice their respective religions; 2) Chapter 10, paragraph (1) of Human Rights Law No. 39/1999 states that every individual has the right to form a family and procreate through legal marriage of their own free will; 3) Although interfaith marriage is not explicitly addressed in Marriage Law No. 1/1974, it is a reality within society and a social need that must be legally addressed to prevent negative effects on social and religious life. 30condly, the legalization of unregistered marriages.Multiple interpretations within the Marriage Law, particularly in Chapter 2(1) and ( 2), have led to the public perception that unrecorded marriages are permissible by the state.This belief persists because the state offers a solution through applications for marriage recognition (ithbat nikah) to religious courts.Paragraph (1) states that marriages are recognized according to their respective religions, while Paragraph (2) recommends registration with the Office of Religious Affairs (KUA).The marriage ceremony and its registration are hierarchical legal events that often involve various dispensations.Consequently, ithbat nikah has become a common legal practice.
Nikah sirri, or underhanded marriage, is not explicitly defined in the law but refers to informal or unregistered marriages.In Sumenep, the occurrence of underhanded marriages is relatively minimal, indicating that the people of Kangean engage in nikah sirri less frequently compared to other regions.However, on the island of Madura, including Sumenep and its surroundings, the prevalence is higher.According to a judge of the Religious Court, while serving at another religious court in 2017, the Sumenep Religious Court handled thousands of cases of marriages not recorded at the KUA or civil registration office.
The Sumenep community demonstrates a commendable legal awareness regarding the importance of marriage registration, largely supported by the influence of ulama and religious figures.Consequently, the community generally avoids marriages without the involvement of KUA or Marriage Registrar officials.While there are positive aspects to this practice, it also has negative effects, especially in the current era where all marriages need to be officially recorded, highlighting the adverse consequences of nikah sirri.
According to the judge or chairman of the Sumenep Religious Court, ithbat nikah refers to the legalization of a marriage.This process can be initiated in the Religious Court by Muslims.For non-Muslims, the process involves the civil registry office.If the conditions are satisfied, the application is approved and formalized by the Religious Court in accordance with relevant laws and regulations.This applies to legal events from the past that were not previously recorded but are now formally recognized through the Religious Court. 31irdly, the state has established regulations regarding the minimum marriage age for prospective brides.According to Law No. 1 of 2016 amending Law No. 1 of 1974, the minimum age for marriage is set at 19 years for both men and women.Individuals below this age limit may apply for marriage dispensation.The availability of marriage dispensation serves as a means to circumvent the prohibition of the minimum marriage age limit. 32This aspect is subject to various interpretations within society and requires judges to adjudicate fairly in court while upholding legal norms and addressing societal realities.
The decision from the Religious Court of Sumenep numbered 95/Pdt.P/2020/PA.Smp concerns a marriage dispensation.The applicants for this dispensation are both parents: Applicant I, aged 37, a Muslim engaged in private work, and Applicant II, aged 36, a Muslim housewife living with her husband.Both applicants petitioned the Sumenep Religious Court seeking permission to marry off their biological daughter. 33The applicants sought dispensation to allow their daughter to marry, citing reasons that their 15-year-old child was already in close association with her prospective husband and that there were concerns about potential disgrace to the family.

The Judges' Approach to Adjudicating Cases with Multiple Interpretations
Based on the case explanation above, the judge establishes a distinction through a deliberative process that is implicitly not specified in the marriage law, rooted in the purpose as an area of ijtihad.Below, the judge's method of rechtvinding (legal discovery) is elaborated upon in each aspect: The first aspect is about resolving the multiple interpretations of interfaith marriage.Examining the case in the Surabaya District Court, where the applicants belong to different religions (the husband is Muslim and the wife is Christian), the judge's distinction allows both parties to maintain their religious beliefs while intending to marry and establish a household.This approach is supported by Chapter 29 of the Constitution, which guarantees freedom of belief in God.Moreover, Chapter 28B, paragraph (1) of the Constitution underscores every individual's right to form a family and have children through legal marriage.This provision aligns with Chapter 29 of the Constitution, which ensures the state's obligation to uphold citizens' freedom to practice their respective religions. 34om the judge's consideration above, the multifaceted distinction in determining interfaith marriage cases can be observed across four aspects.Firstly, legal and normative considerations constitute the judicial foundation utilized by court judges. 35This aspect addresses legal vacuums by applying established legal norms.
"For instance, if the legality of interfaith marriage remains ambiguous and subject to multiple interpretations regarding its permissibility under our legal framework, we can adopt a decisive approach by invoking legislative norms, specifically the Constitution and provisions of Human Rights Law.Given that Chapter 1 of the Marriage Law and Chapters 4 and 40 of the Compilation of Islamic Law (KHI) do not explicitly regulate the permissibility of interfaith marriage, we revert to the essence and objectives of the law, which emphasize benefit and justice". 36e second aspect is societal context.By acknowledging societal norms as integral in deciding interfaith marriage cases, the court cannot overlook sociological considerations.This includes evaluating the psychological, sociological, and religious perspectives experienced by the applicants. 37ased on these criteria, the societal context of interfaith marriage manifests in the following ways: 1) the individual's necessity for legal recognition for reasons such as offspring, religious commitment, and rationale; 2) the firm belief that interfaith marriage does not undermine one's faith; 3) satisfaction with the reality of interfaith marriage; 4) unanimous approval from the entire family and guardians; and 5) a shared objective to establish a harmonious and affectionate family (sakinah, mawaddah, wa rahmah).
The third aspect is about legal legitimacy that encompasses three indicators: 1) textual benefit, which includes verses from the Qur'an and historical precedents from the Prophet that permit interfaith marriage; 2) practical benefit, where interfaith marriages demonstrate greater harmony and lower divorce rates, indicating happiness resulting from such unions; 3) weighing the balance between benefits, specifically considering the maslahah (beneficial aspects) of interfaith marriage against potential harms if such marriages do not occur. 38he texts do not present contradictions, as there is no Qur'anic text that explicitly condemns such marriages, allowing judges to exercise ijtihad while prioritizing overall societal benefit.It is essential to ensure equity for both parties without fostering inequality within society.Existing interfaith marriages must receive legal protection to safeguard the rights of their children and spouses". 39e fourth aspect concerns maqāṣid al-sharī'ah, encompassing the following points: 1) ḥifẓ al-dīn, ensuring that even in interfaith marriages, the male party's religious beliefs are not compromised and may even be strengthened; 2) ḥifẓ al-nafs, safeguarding the right to life and livelihood; 3) ḥifẓ al-'aql, preventing errors in thinking, cognitive patterns, and mental health through interfaith marriages; 4) ḥifẓ al-nasl, protecting children from divorce and ensuring their well-being despite differing religious backgrounds; 5) ḥifẓ al-māl, maintaining property and wealth through the legalization of marriage. 40egarding the objective, it is evident that the intention of the provision is to safeguard the children and the wife, the progeny stemming from the marriage, and to uphold their dignity.Compared to non-registration, considering their civil rights is paramount.While religious marriages are not endorsed, prioritizing the protection of offspring and civil rights aligns more closely with the goals of Islamic law". 41asar Dikuraisyin, Sumarkan, Ah Fajaruddin Fatwa, Muhammad Lathoif Ghozali   Al-Manāhij: Jurnal Kajian Hukum Islam Based on these four aspects, a judge's ruling in an interfaith marriage application case has evolved into a jurisprudential decision-a precedent that subsequent judges can use as a normative legal foundation. 42This decision marks the second distinct marriage ruling following a judge's decision in 2012. 43Based on this pattern of differentiation, it can be concluded that interfaith marriage is supported by a robust legal norm and aligns with the objectives of law to establish justice.Further details are provided in the table below: The Qur'an consistently emphasizes the importance of religious freedom, regardless of the context, whether in times of peace or conflict.This emphasis suggests that religious freedom is a fundamental concern of Sharia. 44The foundational logic for interpreting verses on interfaith marriage must be grounded in the universal value of religious freedom as upheld by the Qur'an.Consequently, the Qur'an does not advocate anything that contradicts this principle.If any differences appear, they must be understood in a partial (juz'īy) context, meaning their validity is specific to certain conditions.The application of partial provisions differs from universal ones (kullīy), 45 serving to reinforce the universal principles.
In fact, the prohibition of interfaith marriages under normal circumstances may contradict the aforementioned logic. 46Therefore, the Qur'an does not fundamentally question the validity of marriage.The issue arises when it is linked to an emergency situation that undermines the values of religious freedom.In the absence of such a situation, interfaith marriage reverts to its basic principles.This exemplifies the flexibility inherent in the Qur'an.
Employing the pattern of interpretation of maqāṣid al-sharī'ah and progressive law has reached a culmination in contemporary times, with many thinkers dedicating serious attention to this field.Generally, progressive maqāṣid theory emphasizes four aspects: 1) Classification: Maqāṣid alsharī'ah in a hierarchical format, encompassing 'āmmah (general), khāṣṣah (specific), and juz'īyah (partial) structures; 2) Purpose: The objectives of Sharia, which encompass not only protection but also the level of development; 3) Scope: The extent of maqāṣid al-sharī'ah, which includes the family, community, nation, and the world; and 4) Source of Argumentation: The foundational references for maqāṣid al-sharī'ah, derived from the Qur'an and the Hadith. 47sser Auda, a Muslim thinker focused on maqāṣid al-sharī'ah, promotes a systemic approach to comprehending the provisions of sharia.His methodology involves applying six system characteristics: cognitive, open, holistic, interrelated hierarchies, multidimensionality, and meaningfulness.These six characteristics, as proposed by Jasser Auda, serve as an epistemological framework to address the contradictions found in various verses. 48The following provides an operational explanation of these characteristics: Firstly, the cognitive nature refers to understanding the interpretation of the Qur'an according to the interpreter's competence, which inevitably leads to diverse interpretations. 49This is particularly significant for the interpretation of contradictory verses, resulting in a variety of understandings. 50uch contradictions in verses generate two distinct interpretations.
Secondly, holistic interpretation.The verses of the Qur'an form a unified whole, with each verse interconnected, particularly those sharing a common theme, even if they appear contradictory.Consequently, a rule cannot be understood through a single biased argument. 51This approach also applies to contradictory verses, which should not be understood in isolation from other verses with similar themes.
Thirdly, openness.To achieve an interpretation that is refreshing and valuable, understanding contradictory verses must include openness.Contradictory verses are texts that invite multiple perspectives, leading to a variety of interpretations. 52The intersection of the text's horizon and the reader's horizon occurs when openness is embraced.
Fourthly, interconnected hierarchies.The hallmark of a system is the interrelation of its hierarchies.Scholars categorize the goals of the Qur'an into three levels: general, specific, and particular.The general goal is the overarching aim of the 'Qur'an.The specific goal is what a group of verses with a common theme seeks to achieve.The particular goal is what is intended by an individual Basar Dikuraisyin, Sumarkan, Ah Fajaruddin Fatwa, Muhammad Lathoif Ghozali   Al-Manāhij: Jurnal Kajian Hukum Islam verse. 53Thus, these levels are interconnected and do not contradict each other.If approached this way, no contradiction exists between the verses, as the specific goals are encompassed within the broader specific and general goals. 54fthly, multidimensionality.This characteristic addresses the explanation of contradictory verses.An understanding rooted in multidimensionality does not conclude that a verse is contradictory; rather, it recognizes that the wording may appear contradictory. 55The key point is that the strength of the ḥujjah (proof) of a verse is not solely determined by its clear wording but also by the extent to which the argument aligns with the consistency of the Qur'an in addressing the same subject matter as the verse in question.
Sixthly, purposefulness.This characteristic implies that the entire system to a common point, which the final product or result, namely the rule of law.When interpreting contradictory verses, even though the input is the same, the outcomes or products of understanding will vary due to differences in processing methods. 56The crucial aspect is that the meaning of the verse is comprehended. 57This comprehension does not imply that the product of processing it into a law is unimportant; rather, it underscores that the legal provisions and the intended purpose should be in harmony.
Thus, the above concept represents an application of the progressive maqāṣid method in operational steps to analyze conflicting verses using the maqāṣid al-sharī'ah approach.Firstly, it involves identifying the conflicting verses, a crucial step that impacts the validity of subsequent conclusions.Secondly, it entails identifying the meaning of the verse, which goes beyond mere textual redaction to include its contextual relevance.Through this process, partial maqāṣid al-sharī'ah emerges as an integral part of the analysis.
The Qur'an delineates two dimensions in the context of interfaith marriage: the dimension of al-ḥifẓ (preservation) and the dimension of al-tanmīyah (development). 58The first dimension clearly pertains to the prohibition of interfaith marriage, aimed at safeguarding individuals from coercion by those who do not tolerate religious freedom. 59Simultaneously, permitting interfaith marriage upholds the principle of religious freedom, crucial for fostering a pluralistic society. 60is comprehension can be promoted as a solution for the issue of interfaith marriage in Indonesia.The government needs to address this escalating phenomenon by formulating marriage regulations grounded in the principle of religious freedom.Consequently, it becomes feasible to elucidate the contradiction among the three verses concerning interfaith marriage in their respective contexts.Therefore, the fundamental rationale behind the verse prohibiting interfaith marriage is rooted in the concern that it may infringe upon the preserved freedom of religion in Islam. 61Conversely, the principle underlying the verse permitting interfaith marriage is based on fostering mutual respect for religious freedoms.Below is an outline for resolving chapters with multiple interpretations through progressive maqāṣid theory.

Conclusion
From the results of the above research and analysis, two important conclusions can be drawn.The first point is that judges employ a progressive maqāṣid distinction in resolving and deciding cases involving chapters with multiple interpretations of marriage law, such as interfaith marriage, ithbat nikah, and marriage dispensation.This first distinction is based on legislation, specifically the relevant chapters of the Indonesian Constitution and the Human Rights Act.This approach is necessitated by the ambiguity and multiple interpretations present in certain laws.According to the Constitution and Human Rights Act, the second distinction is based on the reality of the applicant or the community, who feel the need to enhance religious observance, experience happiness, and align with the purpose of the law.Subsequently, it is measured by the benefit of the text, reality, and choosing the nearest benefit.Finally, the distinction is based on the five components of maqāṣid alsharī'ah.These four stages of distinction produce jurisprudence.The second point is the relevance of progressive maqāṣid employed by judges in granting applications for interfaith marriage, nikah sirri, and underage marriage cases.This is based on three stages: 1) legal text, which involves gathering answers from the Qur'an, hadith, fiqh, and fatwas of contemporary scholars, organized by their respective topics; 2) jurist competence, which is linked to the context of the litigant, the traditions prevailing in the community, and the ability to accommodate and interpret these factors; 3) maqāṣid, which involves selecting the level of the subject's needs based on the ḍarūriyyāt hierarchy, namely ḍarūrīy, ḥājjīy, and taḥsīnīy.These three processes produce social behavior as a normative basis for determining cases with multiple interpretations.

Figure 1 Progressive
Figure 1 Progressive Maqāṣid Distinction Map

Figure 2
Figure 2 Resolving Multi-interpretation Chapters through Progressive Maqāṣid