Al-Manāhij: Jurnal Kajian Hukum Islam
Vol. 19 No. 2, July-December 2025, 205-226
DOI:
Abdulhttps://doi.org/10.24090/mnh.v19i2.14989
Karim, Dany Miftah M. Nur, Abi Amar Zubair

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International License.
P-ISSN: 1978-6670 | E-ISSN: 2579-4167

Published by Sharia Faculty of State Islamic University of Prof. K.H. Saifuddin Zuhri, Purwokerto

Maqāṣid al-Sharī‘ah and the Prohibition of Incest in Indonesian
Legislation: An Analysis of the Protection of Lineage and
Public Morals
Sukataman1*, Idlofi2, Agung Nugroho Reformis Santono3, Umar Chamdan4

Universitas PTIQ Jakarta
Jl. Lebak Bulus Raya No.2, RT.2/RW.2, Lb. Bulus, Kec. Cilandak, Kota Jakarta Selatan, 12440 Jakarta
1*23

University of Vienna
Universitätsring 1, 1010 Wien, Austria
4

Email: sukattamam@gmail.com1, idlofi@mhs.ptiq.ac.id2, agungnugrohors@mhs.ptiq.ac.id3,
umarc95@univie.ac.at5
Submitted
Revision

: 02-04-2025
: 06-08-2025

Accepted
Published

: 12-08-2025
: 18-09-2025

Abstract: The phenomenon of incestuous marriage in Indonesia continues to occur despite being
strictly prohibited by Islamic law and national positive law. This paper discusses the issue of incest
from the perspective of maqāṣid al-sharī‘ah, highlighting how the principles of ḥifẓ al-nasab (protection
of lineage) and ḥifẓ al-‘irḍ (protection of morality and honour) serve as the normative and ethical
basis for the prohibition of incestuous marriage. This study uses a qualitative approach based on
normative and comparative legal analysis of classical Islamic legal sources, national legislation such
as the Marriage Law, KHI, and KUHP, and developing social phenomena. The results of the study
show that the maqāṣid al-sharī‘ah approach uses ṣalah al-uṣūl al-khamsah, ḥifẓ al-nasl, to formulate the
prohibition of incest. Ḥifẓ al-nasl consists of two elements: wujūd (productive) and ‘adam (protective).
The prohibition of incest is a form of protective behaviour, similar to the prohibitions of adultery and
qażf. The application of maqāṣid al-sharī‘ah to positive law can offer new possibilities for Indonesian
law, which is expected to encompass legal, social, and moral aspects.
Keywords: incest, maqāṣid al-sharī‘ah, ḥifẓ al-nasab, family law, public morality
Abstrak: Fenomena perkawinan sedarah (incest) di Indonesia terus terjadi meskipun secara tegas
dilarang oleh hukum Islam dan hukum positif nasional. Tulisan ini membahas permasalahan incest
dari perspektif maqāṣid al-sharī‘ah dengan menyoroti bagaimana prinsip ḥifẓ al-nasab (perlindungan
keturunan) dan ḥifẓ al-‘irḍ (perlindungan moral dan kehormatan) dijadikan dasar normatif dan etis
dalam pelarangan perkawinan sedarah. Kajian ini menggunakan pendekatan kualitatif berbasis
analisis normatif dan yuridis-komparatif terhadap sumber-sumber hukum Islam klasik, legislasi
nasional seperti UU Perkawinan, KHI, dan KUHP, serta fenomena sosial yang berkembang. Hasil
penelitian menunjukkan bahwa pendekatan maqāṣid al-sharī‘ah menggunakan ṣalah al-uṣūl al-khamsah,
ḥifẓ al-nasl, untuk merumuskan larangan insest. Ḥifẓ al-nasl terdiri dari dua unsur: wujūd (produktif)
dan ‘adam (protektif). Larangan insest merupakan bentuk perilaku protektif sebagaimana larangan
berzina dan qażf. Pengaplikasian maqāṣid al-sharī‘ah ke dalam hukum positif dapat memberikan

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Maqāṣid al-Sharī‘ah and the Prohibition ...

tawaran baru untuk hukum Indonesia yang diharapkan dapat mencakup aspek hukum, sosial, dan
moral.
Kata Kunci : incest, maqāṣid al-sharī‘ah, ḥifẓ al-nasab, hukum keluarga, moral publik

Introduction
Recently, Indonesian society has been shocked by a community group called “fantasi sedarah”
(incest fantasy), which has approximately 41,000 members. This group has become a topic of
widespread discussion because it recounts the experiences and incidents experienced by children
who are close relatives within the family environment, with most incidents involving fathers and
their daughters.1 Not only do members share the experiences of those who commit such acts, but
they also discuss engaging in incestuous relationships. This phenomenon highlights the lack of
public awareness regarding the prohibition and enforcement of penalties for incestuous marriages,
with the term “incest” being used instead.
Data from the Ministry of Women’s Empowerment and Child Protection (Kemen PPA) shows that
as of January 1, 2025, the majority of violence victims were women, with 8,613 cases. Of these cases,
33% involved victims under the age of 18 (between 13 and 17 years old), and 61% of the incidents
occurred within the household.2 Kemen PPA also reported that the form of violence experienced by
the victims was predominantly sexual violence, totaling 4,391 cases. Of particular concern is that the
perpetrators were close family members of the victims, with 1,134 being parents, ranking third after
boyfriends/friends and husbands/wives.
The high incidence of violence against women and children, particularly within households and
involving perpetrators close to the victims, highlights structural vulnerabilities within the family
institution, which is supposed to provide protection. Incestuous marriages, one of the most extreme
forms of this violation, infringe upon the victims’ rights as well as societal and moral norms. This
situation requires serious attention, especially in terms of religious laws and regulations, as incest
is not merely a legal violation but also contradicts the principles of lineage protection and human
dignity as stipulated by Indonesian positive law and Islamic sharia rules.
Marriage in Indonesian positive law and Islamic law is strictly regulated by laws that specifically
address marriage. One of the prohibitions in the law is incestuous marriage. Incest is a sexual
relationship between people who are related by blood or close relatives, which is considered a
violation of customs, law, and religion.3 This definition covers three areas: a) parental incest, which
is sexual relations between parents and children, for example, a father with his daughter or a mother
with her son; b) sibling incest, which is relations between siblings; and c) family incest, which refers
to sexual relations between close relatives who have authority over children and share a blood
relationship, whether through direct descent, ascending lineage, or collateral lineage, such as uncles,
aunts, grandparents, grandchildren, cousins, or siblings of grandparents, all of whom maintain a
blood-related family bond.
1

2
3

Esti Widiyana, “Grup FB ‘Fantasi Sedarah’ Jadi Bukti Ruang Aman Untuk Anak Makin Terkikis,” detik.com, May 17, 2025,
https://www.detik.com/jatim/berita/d-7918259/grup-fb-fantasi-sedarah-jadi-bukti-ruang-aman-untuk-anak-makinterkikis.
“SIMFONI-PPA,” kemenpppa.go.id, January 1, 2025, https://kekerasan.kemenpppa.go.id/ringkasan.
Alimatul Qibtiyah et al., Kajian 21 Tahun, Catatan Tahunan Komnas Perempuan, Tahun 2001-Tahun 2021, 1st ed. (Jakarta: Komnas
Perempuan, 2023), 41.

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Incestuous behaviour can be identified in various forms, including: 1) rape, 2) molestation, 3)
forced contraception, 4) forced anal sex by a biological father towards his child, and 5) forced abortion
by the mother due to sibling incest.4 Incest is categorised as sexual violence or is often classified as
statutory rape in the eyes of the law, and is categorised as severe sexual violence. Under Law No.
35 of 2014, which regulates the rights, provisions, and penalties for children and perpetrators of
crimes against children, if the act results in severe injuries, the perpetrator may be sentenced to a
maximum of 5 (five) years in prison and/or a fine of up to one hundred million rupiah. Meanwhile,
perpetrators who cause the death of a child may be sentenced to a maximum of 15 (fifteen) years’
imprisonment and/or a fine of up to three billion rupiah. The emphasis is on the following provision:
if the perpetrator is a parent, the criminal penalties may be increased further.5
As a result of the actions committed by perpetrators of incest, victims suffer various adverse
effects that continue to affect their lives in the future. It is not uncommon for victims to die from
genital infections. Incest crimes in Indonesian society are difficult to prosecute in court. Victims of
this crime often face silence, making it difficult for them to testify that they have been victimised,
a situation exacerbated by the lack of support from their immediate families. Additionally, the
absence of sufficient evidence to prosecute the perpetrators of incest often leads to the suspension
of investigative proceedings in many cases.6
In Islamic law, marriage between individuals who are related by blood (descendants) is strictly
prohibited based on the Qur’anic verse of QS. al-Nisā’ [4]: 23-24 and is considered a definitive ruling
(dalil qaṭʿī). This prohibition is not only based on normative texts but also on the objectives of
Islamic law (maqāṣid al-sharī‘ah) in preserving life (ḥifẓ al-nafs), maintaining lineage (ḥifẓ al-nasab),
and safeguarding public morality.7 In Indonesian positive law, consanguineous marriage is a form
of deviance prohibited by Law No. 1 of 1974 on marriage, and reinforced in the Compilation of
Islamic Law (KHI). However, in practice, the phenomenon of consanguineous marriage still occurs
in various regions, either conducted in secret or as part of deviant cultural practices, which then
poses challenges in enforcing the law and protecting victims.8 This phenomenon has sparked debate
about the effectiveness of the law and the urgency of a normative approach that integrates maqāṣid
al-sharī‘ah in the formulation and implementation of national legislation.
So far, studies on incest tend to focus on three main aspects. First, research highlights the causes of
incest in dysfunctional families and weak legal systems. A lack of understanding of religious and moral
values within the family, as well as weak law enforcement and a lack of comprehensive prevention
systems, are the leading causes of incest against children.9 Similar studies offer preventive measures
against incest by emphasizing the importance of early education and separate sleeping arrangements
4
5

6
7
8
9

Aflina Mustafainah et al., “Pengembangan Dari CATAHU (Catatan Tahunan Kekerasan Terhadap Perempuan) Tahun 20182021” (Jakarta, 2021).
Pemerintah Pusat Indonesia, “Undang-Undang (UU) Nomor 35 Tahun 2014 Tentang Perubahan Atas Undang-Undang Nomor
23 Tahun 2002 Tentang Perlindungan Anak,” Pub. L. No. 35, https://peraturan.bpk.go.id/Details/38723/uu-no-35-tahun-2014
(2014), Pasal 80.
Qibtiyah et al., Kajian 21 Tahun, Catatan Tahunan Komnas Perempuan, Tahun 2001-Tahun 2021.
Mohammad Hashim Kamali, “History and Jurisprudence of the Maqāṣid: A Critical Appraisal,” American Journal of Islam and
Society 38, no. 3–4 (August 8, 2021): 8–34, https://doi.org/10.35632/AJIS.V38I3-4.3110.
Peter Choate and Radha Sharan, “The Need to Act: Incest as a Crime Given Low Priority—A View with India as an Example,”
Social Sciences 2021, Vol. 10, Page 142 10, no. 4 (April 16, 2021): 142, https://doi.org/10.3390/SOCSCI10040142.
Tateki Yoga Tursilarini et al., “Examining Child Victims of Incest in Indonesia: Between the Legal System and Family
Dysfunction,” JURIS (Jurnal Ilmiah Syariah) 23, no. 1 (2024): 129–42, https://doi.org/10.31958/JURIS.V23I1.12341.

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for children.10 Second, research that focuses on the psychological dynamics and trauma perceptions
of child victims of incest within family relationships. Analysis of images of child victims identifies
family emotional dynamics and role imbalances within the family.11 The existence of manipulative
power dynamics and the exploitation of emotional bonds create opportunities for incestuous acts.12
Third, studies that explore the family profiles of incest perpetrators and relational characteristics
among family members. Patterns of prolonged conflict, violence, and role imbalance between the
father and mother are important aspects that shape the families of incest perpetrators.13 However,
some of the above literature still bases its analysis on medical or psychological perspectives, without
deeply linking it to the framework of Islamic social ethics and law. Therefore, this study seeks to
complement the research above by examining incest as a form of prohibited behavior through the
maqāṣid al-sharī‘ah approach, particularly in the context of protecting lineage and public morality in
Indonesian legislation.
This study aims to examine the prohibition of consanguineous marriage from the perspective
of maqāṣid al-sharī‘ah and assess how this approach is adopted or ignored in Indonesian legislation.
Through this research, the article argues that the integration of maqāṣid al-sharī‘ah in legal policy
can strengthen the protection of individual rights and family structures desired by the purpose of
marriage, namely a family that is sakīnah, mawaddah, wa-raḥmah, and provide more ethically and
contextually sound solutions to social problems.
Revisiting the Purpose of Marriage
The word “marriage” etymologically comes from the Arabic words nakaha and zawwaja, which
mean marriage contract and sexual intercourse. Epistemologically, it is a marriage bond (ʿaqd)
carried out according to the provisions of law and religious teachings.14 The use of nikah in Islamic
teachings is mandatory to refer to marriage. Marriage itself is defined as the fulfillment of a mutual
agreement between a man and a woman that legalizes their relationship, and its implementation
must be without coercion to create happiness in their household, filled with mutual love and peace,
according to Islamic teachings.15
Marriage is not merely a physical or spiritual bond, but encompasses both. The physical bond
allows the husband and wife to engage in sexual relations, while the spiritual bond reveals the

Lateef Omotosho Adegboyega, Samuel Kolawole Ajiboye, and Shakiru Abdulkareem, “Incest: A Threat to Family Security,”
Canadian Journal of Family and Youth / Le Journal Canadien de Famille et de La Jeunesse 15, no. 1 (2023): 63–76, https://doi.
org/10.29173/CJFY29912.societies have classified certain forms of sexual intimacy as unlawful in the family setting. These
are punishable under religious rules and government status. Incest is sexual intercourse between close relatives. It is a social
taboo and can be illegal or in some cases legal depending on the jurisdiction. Genetic Sexual Attraction (GSA
11
Oya Sevcan Orak, Nurten Gülsüm Bayrak, and Elif Güzide Emirza, “‘Silent Screams’: Family Perceptions in the Drawings of
Incest Victim Children,” Journal of Pediatric Nursing 73 (2023): e624–31, https://doi.org/10.1016/J.PEDN.2023.11.008.
12
Emanuela Bianciardi et al., “The Incest and the Psychopathological Family,” Trends in Andrology and Sexual Medicine Part F2332
(2023): 85–99, https://doi.org/10.1007/978-3-031-47892-5_7.
13
Susan Alexa Pusch, Thomas Ross, and María Isabel Fontao, “The Environment of Intrafamilial Offenders – A Systematic Review
of Dynamics in Incestuous Families,” Sexual Offending: Theory, Research, and Prevention 16 (2021): 1–20, https://doi.org/10.5964/
SOTRAP.5461.
14
Badan Pengembangan dan Pembinaan Bahasa, “Hasil Pencarian - KBBI VI Daring,” kemendikbud.go.id, 2025, https://kbbi.
kemdikbud.go.id/entri/nikah.
15
Tinuk Dwi Cahyani, Hukum Perkawinan, ed. Halimatus Khalidawati Salmiah (Malang: UMM Press, 2020).
10

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informal and invisible aspects.16 These two elements form the foundation for building a family.17 The
purpose of forming a family through marriage is to create a household that is sakīnah, mawad-dah,
wa-raḥmah,18 which in the Marriage Law is interpreted as creating an eternal and happy marriage by
God’s will.19
Meanwhile, the Marriage Law in Indonesia includes at least four elements: first, a spiritual and
physical bond, meaning not only the exchange of vows but also the sincere consent of both parties
to create a happy and lasting family, and second, adhering to the principle of monogamy and third,
forming a happy and lasting family to achieve peace, joy, comfort, and tranquility in married life’s
physical and spiritual aspects. Fourth, based on religious provisions.20
The history of Islamic marriage law in Indonesia has experienced ups and downs. Before the
enactment of Islamic marriage law, Indonesia already had a national law applicable to all Indonesian
citizens, namely the Marriage Law. Before the implementation of this law, the government had
enforced marriage regulations stipulated in the Criminal Code (BW), the Indonesian Christian
Marriage Ordinance (Huwelijks Ordonansi voor de Christens Indonesiers) Staatsblaad 1933 No. 74,
and the Mixed Marriage Regulation (Regeling op de gemengde Huwelijken), Staatsblaad 1898 No.
158. In addition to the above laws, the government enacted the Marriage, Divorce, and Reconciliation
Registration Law (NTR) in State Gazette 1954 No. 32 and the Minister of Religion’s regulations
regarding its implementation.21
Before the marriage law came into effect on October 1, 1975, several marriage laws applied to
all citizens in various regions, including: 1) customary marriage laws that regulated marriage for
indigenous Indonesians, the purpose of which was to preserve and continue the lineage according
to the line of descent. Therefore, this marriage involves the entire family and even the surrounding
community. 2) Islamic marriage laws that apply to indigenous Indonesians who embrace Islam, so
that marriage practices use Islamic principles. 3) The Civil Code (Burgerlijk Wetboek), which applies
to people of European, Chinese, and other nationalities. 4) According to the Indonesian Christian
Marriage Ordinance (HOCI), the marriage law applies to Indonesians who adhere to Christianity. 5)
Mixed Marriage Regulations. 6) Regeling op de Gemengde Huwelijken is a marriage regulation for
Indonesians who marry non-Indonesian descendants.22
The various marriage laws in Indonesia and the dynamics involved are all intended to achieve
the goal of marriage, which is to have children to preserve and develop the human race in carrying
out its duty as caliphs on earth. The offspring produced from marriage, as mentioned by Ibn Abbas,
can bring happiness to the married couple and serve as the smallest unit of society that can assist and
support one another among family members.23
Arbanur Rasyid et al., “Dynamics of Childless Marriage Through the Lens of Maqasid Al-Shari’a,” Jurnal Ilmiah Peuradeun 12, no.
2 (May 30, 2024): 763–86, https://doi.org/10.26811/PEURADEUN.V12I2.1182.
17
K. Wantjik Saleh, Hukum Perkawinan (Jakarta: Ghalia Indonesia, 1980), 14–15.
18
In Islamic legal literature, the goal of marriage in the form of sakinah mawaddah wa rahmah is one of many goals of marriage.
Other goals of marriage that are rarely mentioned include increasing offspring, protecting oneself from immoral acts, and
building a pious family. See: Ahmad Khoiruddin, “Konsep Sakinah, Mawaddah Dan Rahmah Dalam Pernikahan - Lembaga
Penelitian Dan Pengabdian Masyarakat,” Lembaga Penelitian dan Pengabdian Kepada Masyarakat Universitas Islam Negeri
Siber Syekh Nur Jati Cirebon, September 1, 2022, https://lp2m.uinssc.ac.id/?p=1758.
19
Cahyani, Hukum Perkawinan.
20
Jamaluddin and Nanda Amalia, Buku Ajar Hukum Perkawinan, ed. Faisal (Lhokseumawe: Unimal Press, 2016), 19–20.
21
A. Hamid Sarong, Hukum Perkawinan Islam Di Indonesia (Banda Aceh: Pena, 2010), 24–25.
22
Jamaluddin and Nanda Amalia, Buku Ajar Hukum Perkawinan.
23
Zaprulkhan, 97-98.
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Meanwhile, in Christian teachings, marriage aims to unite two individuals with many human
weaknesses, so that through marriage, the two individuals become a team that can accept each
other’s shortcomings. Even in the New Testament, marriage is likened to the relationship between
Christ and the church, in which both must love and be committed to their partner.24 Paul’s agreement
clearly states that marriage is a partnership in which both individuals need each other.25
The sacred purpose of marriage is not only emphasised in religious teachings, but also by
indigenous communities. Before the arrival of the Abrahamic religions, Indonesian communities
viewed marriage as a guardian of cultural values and traditions passed down from generation to
generation.26 Therefore, it is unsurprising that certain rituals are included in wedding ceremonies,
such as traditional ceremonies, dances, and songs adapted to the local culture.27
The Concept of Maqāṣid Sharīʿah in the Protection of Lineage
The term al-maqāṣid is the plural form of the Arabic word Maqṣad, which means goal, target,
desired outcome, or ultimate purpose. In Islamic jurisprudence, al-maqāṣid refers to al-hadaf
(purpose), al-gharaḍ (target), al-maṭlūb (desired outcome), or al-ghāyah (ultimate goal) of Islamic
law.28 Terminologically, the meaning of maqāṣid al-sharī’ah has evolved from its initial simple form to
a more holistic sense. The first scholars to provide a theoretical definition of maqāṣid al-sharī’ah were
al-Shāṭibī in his book entitled maqāṣid al-sharī’ah. Although before al-Shāṭibī, there were already those
who discussed maqāṣid by equating it with the wisdom of law, the objectives of law, the meanings of
law, and achieving (al-maṣāliḥ) benefits and rejecting mafasadat (al-mafāsid).29
The development of maqāṣid al-sharī’ah after al-Shāṭibī experienced a long period of stagnation,
as it was believed that maqāṣid al-sharī‘ah had found its perfect form as conceived by al-Shāṭibī, leading
to stagnation for approximately six centuries. Maqāṣid al-sharī’ah began to resurface in Islamic
intellectual circles after Ṭāhir Ibn ʿĀshūr established it as an independent field of study.30
Maqāṣid al-sharī‘ah, as categorized by al-Shāṭibī, is divided into three levels: 1) ḍarūriyyāt
(essential), defined as everything that must exist to achieve human welfare, both for worldly and
spiritual purposes. The objectives of Islamic law in the form of al-ḍarūriyyāt require the preservation
of al-ḍarūriyyāt al-khams, which include religion, life, intellect, lineage, and property. 2) Ḥājiyyāt
(complementary) means everything humans need but does not reach the level of dharuriyyat, yet
its existence is necessary to facilitate human life. 3) Taḥsīniyyāt (tertiary), meaning everything that
should exist to beautify human life, whose absence does not harm or complicate life. However, their
existence is intended for moral excellence and the common good.31
Antonius, S. (2020). Pernikahan Kristen Dalam Perspektif Firman Tuhan. Jurnal Pionir LPPM Universitas Asahan, 6(2).
Paath, J., Zega, Y., & Pasaribu, F. (2020). Konstruksi pernikahan Kristen alkitabiah. Scripta, 8(2), 181-202.
26
Solihan et al., “Legal Syncretism in Practice: Acculturation of Islamic and Customary Norms in the Tunggu Tubang Marriage
Tradition of Semende,” Nurani: Jurnal Kajian Syari’ah Dan Masyarakat 25, no. 1 (June 2, 2025): 185–99, https://doi.org/10.19109/
NURANI.V25I1.25060.
27
Yarham, M. (2023). Tradisi Adat Jawa dalam Pelaksanaan Pernikahan Perspektif Hukum Islam. Al Maqashidi: Jurnal Hukum Islam
Nusantara, 6(2), 58-73.
28
Zaprulkhan, Rekonstruksi Paradigma Maqāṣid Al-Sharīʿah, 1st ed. (Yogyakarta: IRCiSoD, 2020), 60.
29
Some scholars who discuss maqāṣid with the above interpretation include al-Bannānī, al-Asnawī, al-Samarqandī, al-Ghazālī,
al-Āmidī, and Ibn al-Ḥājib. See: Zaprulkhan, Rekonstruksi Paradigma Maqāṣid Al-Sharīʿah.
30
Ahmad Imam Mawardi, Fiqh Minoritas (Yogyakarta: LKiS, 2010), 180–82.
31
Zaprulkhan, Rekonstruksi Paradigma Maqāṣid Al-Sharīʿah.
24
25

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The protection of the five necessities (al-ḍarūriyyāt khums) encompasses five main things: the
preservation of religion, life, intellect, lineage, and property. The conservation of religion in this
context means granting every individual the freedom to choose their religion according to their
beliefs without any coercion whatsoever. Freedom to choose one’s religion without coercion is the
foundation of Islamic law, as stated by Ibn ʿĀshūr.32

In the matter of consanguineous marriage, Islam seeks to preserve life and lineage. This
preservation is achieved by imposing penalties on those who violate the text’s provisions by
marrying a blood relative. In addition to causing genetic abnormalities, consanguineous marriage
is also considered adultery, so that the offspring do not receive the rights they would have if the
marriage had been performed with a valid contract recognized by Islam.
Preserving offspring is one of the purposes of marriage, alongside other purposes. Therefore,
marriage in Islam is strictly regulated, consisting of pillars, conditions, and prohibitions. If any of
these are not fulfilled, it will have consequences both vertically (towards Allah) and horizontally
(towards society), where children born from an invalid marriage have no honor.33 Conversely,
children born from a valid marriage will receive recognition and rights from the religion, such as
inheritance, kinship, etc.
Preserving lineage in Islam is considered valuable and essential for every individual, so it is
obligatory to uphold this honor. In the position of al-ḍarūriyyāt, the preservation of lineage in the
form of a valid marriage contract and marriage registration occupies the position of al-ḥājiyyāt to
protect the rights of individuals in the future.34 Celebrating the marriage contract by inviting relatives,
neighbors, and the surrounding community is a form of al-taḥsīniyyāt in preserving lineage.35
Consanguineous Marriage in the Perspective of the Qurʾān
Two verses in the Qur’an discuss the prohibition of marrying people who are related by blood
(descendants), breastfeeding, and marriage (muṣāharah) in Sūrah al-Nisāʾ: 23-24.
Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father’s sisters, your
mother’s sisters, your brother’s daughters, your sister’s daughters, your [milk] mothers who nursed you,
your sisters through nursing, your wives’ mothers, and your step-daughters under your guardianship
[born] of your wives unto whom you have gone in. But if you have not consummated the marriage with
them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your loins,
and that you take two sisters simultaneously in marriage, except for what has already occurred. Indeed,
Allah is ever Forgiving and Merciful.
And [also prohibited to you are all] married women except those your right hands possess. [This is] the
decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them
[in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. So for
whatever you enjoy [of marriage] from them, give them their due compensation as an obligation. And there
is no blame for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise.
Zaprulkhan.
Busyro, Maqāṣid Al-Sharīʿah Pengetahuan Mendasar Memahami Maslahah (Jakarta: Prenada Media, 2019), 124–25.
34
Qadriani Arifuddin, “Registration of Marriage as Fulfillment of Marriage Requirements According to Islamic Principles,” Nurani:
Jurnal Kajian Syari’ah Dan Masyarakat 24, no. 2 (October 10, 2024): 317–28, https://doi.org/10.19109/NURANI.V24I2.24529.
35
Achmad Muzammil Alfan Nasrullah, Maqāṣid Al-Sharīʿah: Konsep, Sejarah, Dan Metode (Malang: Literasi Nusantara Abadi, 2024),
10–11.
32
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Early Muslim scholars such as al-Ṭabarī provided explanations regarding the two verses above
by quoting the opinion of Ibn ʿAbbās that seven people are forbidden due to nasab and seven people
are banned due to marriage.36 Ibn al-Mundhir emphasized that the last seven parts forbid marriage
and also raḍāʿah (breastfeeding). The prohibition of marriage due to blood ties in the above verse also
includes marrying one’s biological mother or child, whether traced upward or downward, including
paternal and maternal grandparents, and downward blood ties such as children and grandchildren.37
According to al-Rāzī, the prohibition against marrying one’s mother and children has been
established since the teachings of Prophet Adam until the teachings of Prophet Muhammad, and no
heavenly religion permits marrying either of them. As for the history of permissibility mentioned
by Prophet Ziradiste, a Zoroastrian prophet, Islamic scholars agree that it is false. The permissibility
of marrying a sibling during the time of Prophet Adam was due to necessity, although this remains a
debate among Islamic scholars.38 Some groups claim that the one married to Adam’s son was not his
sibling, but rather an angel sent by Allah from heaven to be married. Still, this opinion is refuted and
considered a false interpretation.
The prohibition against marrying one’s mother is because sexual relations are something
shameful and despicable, and should only be done in private. Since it is a disgraceful act, it is
obligatory to protect one’s mother from such an act, as a mother’s kindness toward her child is the
most excellent form of kindness, and it is therefore obligatory to protect her from such dishonor.
Similarly, the prohibition against marrying one’s daughter is because a daughter is part of her father,
as the hadith states that Fatimah is part of the Messenger of Allah, so it is obligatory to protect her
from such a despicable act, and the same applies to the prohibition against others. The prohibition in
this verse is eternal and permanent until the Day of Judgment.39
In the above verse, the Qur’an uses the phrase hurrimat, which means it’s not okay to marry
the 14 people mentioned. The Qur’an also uses similar wording to say that certain foods are not okay
to eat. The prohibition in this verse, in the field of uṣūl al-fiqh, is referred to as al-nahy’ anhā ‘alā aljam’i (a complete prohibition), which implies that something that is prohibited can be avoided by all
people.40 Even so, there are things that are permissible for humans to do, such as marrying someone
who is not a mahram or eating permissible foods.
The wisdom behind the prohibition of the fourteen people mentioned in the verse above is
to facilitate marriage and avoid disputes among relatives.41 The prohibition of marrying mahrams
indirectly opens the possibility of shahwah, leading to marriage aimed at increasing offspring, which
is the primary purpose of marriage. Ibn ʿĀshūr states that shahwah should not arise when faced with
one’s mahram.

Abū Ja’far Muḥammad ibn Jarīr al-Ṭabarī, Jāmi’ Al-Bayān ’an Ta’wīl Āy Al-Qur’ān, ed. ibn ’Abd al-Muḥsin, al-Ūlā, vol. J. 8 (Turkī:
Dār Hajr , 2001), 140.
37
Abū Bakr Muḥammad ibn Ibrāhīm Ibn al-Mundhir, Kitāb Tafsīr Al-Qurʾān, ed. Saʿd Ibn Muḥammad, al-Ūlā, vol. J. 2 (al-Madīnah
al-Nabawiyyah: Dār al-Māʾāthir, 2002), 621–22.
38
Fakhr al-Dīn Al-Rāzī, Mafātīḥ Al-Ghayb, al-thālithah, vol. J. 28 (Bayrūt: Dār Iḥyāʾ al-Turāth al-ʿArabī , 1999), 23.
39
Al-Rāzī, Mafātīḥ Al-Ghayb.
40
Abu Husain Muhammad al-Mu’tazili, al-Mu’tamad fi ushul al-Fiqhi. (Beirut: Dar al-Kutub al-Ilmiyyah, 1403 H). J. 1, hlm. 169.
41
Muḥammad aṭ-Ṭāhir Ibn ‘Āshūr, At-Taḥrīr Wa at-Tanwīr, vol. J. 4 (Tūnis: Ad-Dār at-Tūnisiyyah, 1984), 298.
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Consanguineous Marriage: The Perspective of Positive Law in Indonesia
The 1945 Constitution does not mention any prohibition on consanguineous marriage. However,
section 28, paragraph 1 can be used to determine whether consanguineous marriage is prohibited.
The wording “every person has the right to form a family and continue their lineage through legal marriage”
can be interpreted to mean that every Indonesian citizen has the same right to marry.42 Meanwhile,
marriages between Indonesian citizens are considered valid if they comply with the law, religion,
customs, and applicable regulations. Therefore, it is necessary to establish a law as a derivative
regulation that accommodates marriage issues.
Law No. 1 of 1974 on Marriage was the government’s initial awareness of the need for legal
provisions to address issues arising from marriage. An improper marriage can lead to internal family
conflicts and other matters arising from violations of religious or faith-based laws. For example, cases
of incest often raise public moral concerns. This is because such relationships violate established
humanitarian norms and may result in unclear lineage in the future. Section 8(a-f) states that “marriage
is prohibited between two people who are related by blood, whether through direct descent, ascendance, lateral
descent, adoption, breastfeeding, marriage to a spouse’s sibling, or any other relationship explicitly prohibited by
religion and applicable regulations.”43 Such provisions are imperative and generally binding, so anyone
who enters a consanguineous marriage violates the positive law in force in Indonesia. Rather than
being imperative, these provisions are intended to prevent individuals from deviating from religious
norms through family relationships, which would affect the legitimacy of their offspring. Not only
that, but consanguineous relationships (incest) can also cause psychological distress to individuals
and genetic abnormalities.
Furthermore, such actions significantly impact the fate of the children born to them. Children
often become victims of the negative consequences of immoral acts or actions that violate marriage
norms. On that basis, the government enacted Law No. 16 of 2019, amending Law No. 1 of 1974,
to guarantee that citizens can form families and continue their lineage through legal marriage.44
Specifically, it guarantees the survival of children and their protection from violence and social
discrimination. Although the amendment to the law does not touch on Section 8 regarding incest,
this decision can be seen as the government’s swift response to preventing the dangers of defective
marriages that violate religious norms. Specifically, it protects the fate of children and offspring who
are often targeted due to wrong marriages.
On the other hand, as a significant responsibility for the implementation of marriage, the
government introduced Government Regulation No. 9 of 1975 as a legal record to strengthen the
legality of marriage and preventive measures against future marriage violations.45 Attention to
marriage law appears to have prompted Islamic legal experts to create specific guidelines for handling
marriages according to Islamic law. Thus, three draft guidelines for Islamic law were formed, known
as the Compilation of Islamic Law, as a basis for resolving issues, one of which is the Marriage Law
Majelis Permusyawaratan Rakyat Republik Indonesia, “Undang-Undang Dasar Negara Republik Indonesia Tahun 1945,” Pub.
L. No. Pasal 28, https://mpr.go.id › file › 1610334013_file_mpr (2020), Section 28 Article 1.
43
Pemerintah Pusat Indonesia, “Undang-Undang (UU) Nomor 1 Tahun 1974 Tentang Perkawinan,” Pub. L. No. 1, https://
peraturan.bpk.go.id/Details/47406/uu-no-1-tahun-1974 (1974), Section 8.
44
Pemerintah Pusat Indonesia, “Undang-Undang (UU) Nomor 16 Tahun 2019 Tentang Perubahan Atas Undang-Undang Nomor
1 Tahun 1974 Tentang Perkawinan,” Pub. L. No. 16, https://peraturan.bpk.go.id/details/122740/uu-no-16-tahun-2019 (2019).
45
Pemerintah Pusat Indonesia, “Peraturan Pemerintah (PP) Nomor 9 Tahun 1975 Tentang Pelaksanaan Undang-Undang Nomor
1 Tahun 1974 Tentang Perkawinan,” Pub. L. No. 9, peraturan.bpk.go.id/Details/67678/pp-no-9-tahun-1975 (1975).
42

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Book. The emergence of these guidelines was supported by Presidential Instruction No. 1 of 1991
as a reaffirmation by the government to implement the proposed laws. It is clear in Chapter VI,
Section 39, and Chapter XI, Section 70(d), that marriages between blood relatives (incest) are strictly
prohibited.46 Furthermore, such marriages are deemed invalid for violating established religious and
state norms. If an incestuous marriage is conducted in secret, neither the positive law of the state nor
Islamic Sharia law recognizes such a marriage.
Incestuous relationships greatly affect the moral degradation of families and are considered
serious offenses. This is especially true when it involves abuse by family members or children
under the age of 18.47 Such cases can result in serious criminal charges against the perpetrator. The
Child Protection Law states that the criminal penalty for perpetrators is a minimum of five years
and a maximum of fifteen years in prison. Similarly, Section 418 of the Criminal Code states, “If the
perpetrator commits acts of sexual abuse against a child, whether it be their biological child, stepchild, or foster
child, the punishment is imprisonment for a maximum of 12 (twelve) years.”48 Furthermore, Section 419 of
the Criminal Code reiterates, “If a person facilitates or facilitates acts of sexual abuse against a biological
child, stepchild, adopted child, or child under their supervision, they shall be punished with imprisonment for
a maximum of nine years.”49 It is clear here that the government strongly condemns actions leading
to incestuous relationships, whether forced or not. It must be emphasized again that any intimate
relationship between blood relatives is strictly prohibited under Indonesian positive law. Of course,
incestuous marriages are condemned, let alone intimate acts outside of a valid marriage.
Therefore, the Minister of Religion has tightened the implementation of marriage registration
regulations by recently issuing new regulations. This regulation revises Minister of Religion
Regulation No. 20 of 2019, which was deemed no longer aligned with legal developments and societal
needs.50 As law is a matter of certainty, it must accommodate all contextual issues in every era. For
example, Section 6 stipulates stricter verification of marriage requirements to ensure marriages do
not violate established rules.51 If these requirements are not met or are obstructed by legal regulations
in marriage, then someone seeking to marry will be rejected by the local KUA (Religious Affairs Office)
head. The PPN (Marriage Registrar) will notify the rejection in writing and the reasons for the refusal.
This is stated in Section 28 of the Ministry of Religious Affairs Regulation No. 22 of 2024.52 Therefore,
marriages between close or blood relatives that violate legal regulations will surely be rejected by
the Marriage Registrar at the KUA. However, even if the marriage between blood relatives is based on
mutual consent between the two parties, positive law regulations explicitly reject it.
The Directorate General of Islamic Community Guidance issued Technical Guidelines for
Implementing Marriage Registration No. 473 of 2020 to prevent the possibility of prohibited marriages

Pemerintah Pusat Indonesia, “Instruksi Presiden (Inpres) Nomor 1 Tahun 1991 Tentang Penyebarluasan Kompilasi Hukum
Islam,” Pub. L. No. 1, peraturan.bpk.go.id/Details/293351/inpres-no-1-tahun-1991 (1991), Section, 39, 70.
47
Pemerintah Pusat Indonesia, “Undang-Undang (UU) Nomor 23 Tahun 2002 Tentang Perlindungan Anak,” Pub. L. No. 23,
peraturan.bpk.go.id/Details/44473/uu-no-23-tahun-2002 (2002).
48
Pemerintah Pusat Indonesia, “Undang-Undang (UU) Nomor 1 Tahun 2023 Tentang Kitab Undang-Undang Hukum Pidana,”
Pub. L. No. 1, peraturan.bpk.go.id/Details/234935/uu-no-1-tahun-2023 (2023), Section 418.
49
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana.
50
Kementerian Agama Indonesia, “Peraturan Menteri Agama Nomor 22 Tahun 2024 Tentang Pencatatan Pernikahan,” Pub. L.
No. 22, peraturan.bpk.go.id/Details/313022/peraturan-menag-no-22-tahun-2024 (2024).
51
Kementerian Agama Indonesia.
52
Kementerian Agama Indonesia.
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between blood relatives.53 This regulation is considered important as a reference for all relevant
parties, especially those interested in marriage, to understand the implementation of permitted
and prohibited marriages.54 The mechanisms outlined in the guidelines are the administrative and
preventive implementation of normative law. Such measures are taken to avoid the legalization of
incestuous marriages, which damage the image of the family and its integrity in the eyes of society.
In practice, incestuous marriages often disregard the law, both positive law and religious law. At
least two aspects need to be considered before deciding on a law regarding incestuous marriages:
first, whether the marriage was entered into intentionally or unintentionally; second, whether the
marriage was entered into under duress or by mutual consent.
Consanguineous marriages that are deliberately entered into are null and void and not recognized
under positive law, resulting in adultery. Both parties are subject to Section 22, which violates the
valid requirements under the law, and may therefore be annulled by the court.55 Under Section 402
of the Criminal Code, “any person who (a) enters into a marriage, while knowing that the existing marriage
constitutes a valid obstacle to the marriage, or (b) enters into a marriage, while knowing that the existing
marriage of the other party constitutes a valid obstacle to the marriage.”56 This means that through legal
channels, a marriage between blood relatives is considered to have never existed. If the marriage
is conducted, it violates Section 402 of the Criminal Code regarding the conduct of a marriage that
violates the legal requirements, namely, an impediment to the conduct of a marriage under the law.
Furthermore, a marriage that is intentionally annulled and results in adultery may be subject to
Section 411 if there is a complaint from the husband, wife, parents, or children.57
Additionally, whether a government official or not, anyone who acts as a witness or officiates the
marriage may face sanctions if they intentionally marry the couple. Under Section 16 (1) and Section
20 of Law No. 1 of 1974, marriage registration officers may be subject to administrative sanctions
and/or disciplinary action.58 Therefore, the Criminal Code includes Section 403, which states that
“any person who conducts a marriage and does not inform the other party that there is a valid impediment
shall be punished with a maximum of 6 (six) years’ imprisonment or a fine of Category IV.”59 Specifically for
government marriage officials, Section 539 of the Criminal Code (2) states, “An authorized official who
conducts a marriage for someone, even though they know that there is a valid impediment to the marriage other
than the impediments referred to in paragraph (1), shall be punished with imprisonment for a maximum of 5
(five) years.”60 This means that an official who marries someone related by blood is subject to a fiveyear prison sentence.
The legal status of consanguineous marriages involving elements of unintentionality is different.
A consanguineous marriage that occurs unintentionally, or a marriage between two individuals who
were previously unaware of the prohibition on marriage due to their blood relationship, is considered
Direktur Jenderal Bimbingan Masyarakat Islam Kementerian Agama Republik Indonesia, “Keputusan Direktur Jenderal
Bimbingan Masyarakat Islam Nomor 473 Tahun 2020 Tentang Petunjuk Teknis Pelaksanaan Pernikahan,” Pub. L. No. 473,
kalteng.kemenag.go.id (2020).
54
Direktur Jenderal Bimbingan Masyarakat Islam Kementerian Agama Republik Indonesia.
55
Jumni Nelli and Alfi Hasanah, “Fasakh Perkawinan Sedarah Dan Status Hukum Terhadap Anak Dalam Perspektif Hukum Islam
Di Indonesia,” Yustisi 11, no. 2 (May 29, 2024): 184–200, https://doi.org/10.32832/YUSTISI.V11I2.16674.
56
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana.
57
Pemerintah Pusat Indonesia.
58
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 1974 tentang Perkawinan.
59
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana.
60
Pemerintah Pusat Indonesia.
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valid at the time. However, if it is discovered that the two spouses are related by blood during family
life, then it can be declared as a relationship of doubt (syubhat) in the eyes of the law.61 Therefore,
both parties need to know how to prove the clarity of the relationship between them with valid data
(laboratory DNA tests), and the relevant parties can file for annulment of the marriage.62 The legal
process in such cases is referred to as fasakh, which is regulated in Chapter IV, Sections 22 to 28 of the
Marriage Law and the Compilation of Islamic Law (KHI) Chapter XI, Sections 70 to 76.63 Generally, the
provisions outlined in these sections regulate the conditions and grounds for annulling a marriage
and the annulment procedures. Thus, the legal status of an unintentional consanguineous marriage
is null and void, and both parties must divorce due to the defect in the validity of the marriage.
Meanwhile, consanguineous marriages entered into under duress may constitute a criminal
offense under the Criminal Code. Legal action may be taken if the consanguineous marriage
involves coercion against the spouse, children, or the use of violence, seduction, exploitation, or the
dissemination of pornography. For example, one of the partners is intimidated or forced to marry
under threat, and one of the partners is a minor.64 As per Section 454 regarding the abduction of
children and women and Section 473 regarding rape. Section 454 (1) and (2) state that anyone who
takes away a child with elements of control over the child can be punished with a maximum of 7
(seven) years in prison. Meanwhile, anyone who takes away a woman with deception or threats with
elements of control over her can be punished with a maximum of 9 (nine) years in prison. However,
the imposition of punishment may be based on a complaint filed by the child, the parents, or the
guardian, and the woman or her husband seeking justice.65 In such cases, forced marriage or the
abduction of the bride may be brought before the court on charges of kidnapping.
Section 473 reinforces the criminal offense of incest committed under threat, stating that “any
person who, by force or threat, compels another person to have sexual intercourse with them shall be punished
for rape with a maximum imprisonment of 12 (twelve) years.”66 The criminal penalties under this provision
include sexual intercourse with a person with their consent, sexual intercourse with a child, sexual
intercourse with an unconscious or helpless person, or with a person with disabilities. Additionally,
the Criminal Code emphasizes that criminal acts committed against children in cases of incestuous
marriage, whether involving coercion or not, shall be punished with a minimum of 3 (three) years
and a maximum of 15 (fifteen) years in prison. However, when the marriage has been carried out
in this case, a complaint from the victim of the incestuous marriage is required. Thus, incestuous
marriage based on coercion may be punished with a maximum of 24 (twenty-four) years in prison if
there are elements of threat and abduction.

Nelli and Hasanah, “Fasakh Perkawinan Sedarah Dan Status Hukum Terhadap Anak Dalam Perspektif Hukum Islam Di
Indonesia.”
62
Afifah and Lilik Andar Yuni, “Penetapan Konstitusi Dan Hukum Islam Terkait Tes DNA Sebagai Dalil Keabsahan Anak,” Maqasid:
Jurnal Studi Hukum Islam 13, no. 2 (2024): 88–97.
63
Mahkamah Agung Republik Indonesia, Himpunan Peraturan Perundang-Undangan Yang Berkaitan Dengan Kompilasi Hukum Islam
(Jakarta: Perpustakaan dan Pelayanan Informasi Biro Hukum dan Humas Badan Urusan Administrasi MA RI, 2011), Section
70-76; Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 1974 tentang Perkawinan.
64
Dewi Agustina, “Polres Kutim Dalami Dugaan Hubungan Sedarah Pelajar Di Sangatta, Si Perempuan Kini Hamil 5 Bulan TribunNews.Com,” tribunnews.com, September 4, 2019, https://www.tribunnews.com/regional/2019/10/04/polres-kutimdalami-dugaan-hubungan-sedarah-pelajar-di-sangatta-si-perempuan-kini-hamil-5-bulan.
65
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana.
66
Pemerintah Pusat Indonesia.
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Similarly, consanguineous marriage based on mutual consent may be subject to legal action due
to the presence of adultery. A consanguineous marriage that has been legally annulled is considered
adultery if the couple lives together as husband and wife. In such cases, even if there is no element
of coercion or the marriage is consensual, it violates Section 412 of the Criminal Code, which states
that “any person who engages in sexual intercourse with someone who is not their spouse shall be punished for
adultery with a maximum sentence of one year or a fine of Category II.”67 However, this provision applies
only if there is a complaint from one of the married parties (husband or wife) or their parents or
children. This means that a consanguineous marriage can be brought before the courts only if there
is a complaint and strong evidence regarding the elements above. Such regulations reflect the
government’s caution in imposing penalties. The punishment is only intended as a deterrent for
the perpetrator, while the specific purpose of the regulation, particularly regarding marriage, is to
protect lineage and public morality.68
Consanguineous marriage undermines both of these essential aspects, particularly the protection
of lineage, which directly threatens the legal status of a child. Entering into a consanguineous marriage
creates new legal conflicts related to inheritance rights, civil identity, and family responsibilities.
For example, confusion over the legal status of a child in cases where a marriage has been annulled
(fasakh) by the court due to a known blood relationship. Although the child’s status is considered
valid and can be attributed to the biological father because the marriage was entered into out of
ignorance, the annulment decision requiring divorce also impacts the child’s future psychological
and social well-being.69 Moreover, a consanguineous marriage conducted knowingly can result in
another legal status that affects the lineage of a child. Such a case occurred in the Banyumas Religious
Court Decision No. 1160/Pdt.G/2018/PA.BMS on November 22, 2018, which granted the annulment
of the marriage due to a blood relationship between the two parties, namely the husband and wife.70
As a result, the previous marriage was deemed to have never occurred, and the impact on the child is
that the father cannot serve as the marriage guardian for that marriage due to the lack of legal clarity
regarding the lineage of an incestuous marriage. However, the child born from that marriage is still
legally valid because the previous consanguineous marriage occurred unintentionally.71
On the other hand, incestuous marriages can damage social structures and lead to deviant
sexual practices. In particular, marriages based on illicit relationships or coercion reflect a domestic
family environment involving unequal power relations between fathers and children, or between
close relatives. As in the case in 2019, in Bulukumba Regency, a brother married his biological sister.
This marriage, which violated the law, damaged the moral image of their family in the eyes of the
Salemba community. Reportedly, the two perpetrators were cursed by their family and were no

Pemerintah Pusat Indonesia.
Katie J Hughes and Laura Batten, “The Development of Social and Moral Responsibility in Terms of Respect for The Rights of
Others,” Jurnal Ilmiah Peuradeun 4, no. 2 (May 28, 2016): 147–60, https://doi.org/10.26811/PEURADEUN.V4I2.93.
69
Angling Derry Kesuma et al., “A Progressive Effort to Strengthen the System of Interconnection of Court Decisions on the
Rights of Women and Children After Divorce,” Nurani: Jurnal Kajian Syari’ah Dan Masyarakat 25, no. 1 (June 26, 2025): 280–93,
https://doi.org/10.19109/NURANI.V25I1.24759.
70
Pengadilan Agama Banyumas, “Putusan PA BANYUMAS Nomor 1160/Pdt.G/2018/PA.Bms Tentang Pembatalan Perkawinan,”
Pub. L. No. 1160, Direktori Putusan Mahkamah Agung Republik Indonesia (2018).
71
Mohamad Bagja Azhari and Liza Priandini, “Akibat Hukum Dari Pembatalan Perkawinan Sedarah (Putusan Pengadilan Agama
Banyumas Nomor 1160/Pdt.G/2018/PA.Bms),” Mizan: Journal of Islamic Law Journal of Islamic Law 9, no. 3 (December 16, 2021):
425–34, https://doi.org/10.32832/MIZAN.V9I3.20320.
67
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longer considered members of the family.72 This is because the case had damaged the family’s honor
in the public sphere. Moreover, there is the case of an extramarital incestuous relationship, such as
the case of an older brother impregnating his younger sister in Rejang Lebong District, Bengkulu.73
Strangely, both parents attempted to condone the relationship by keeping it hidden from the public.
Meanwhile, the younger sister suffered from severe depression, indicating the presence of threats
or coercion by the perpetrator. Similarly, a recent case of incestuous fantasy has spread widely in
the public sphere, resulting in fatal consequences.74 Media coverage can alter public perceptions
of immorality and public morality, necessitating repressive measures against the perpetrator and
deterrent actions to prevent society from tolerating such cases.
Conceptual Analysis of the Principles of Maqāṣid Al-Sharī’ah and Positive Law
According to the basic principles of maqāṣid al-sharī‘ah, the protection of life (ḥifẓ al-nafs) and
offspring (ḥifẓ al-ʿirḍ) are essential components in maintaining the welfare of families and society.
The concept of ḥifẓ in Islam has evolved in line with developments in human rights issues, such as
ḥifẓ al-ʿirḍ evolving as the preservation of human dignity and family care within a proposed civilized
Islamic social system.75 In this context, consanguineous marriage is considered a threat to these two
maqāṣid because it can lead to chaotic lineage identity, genetic abnormalities, and family structure
breakdown.76 Islam strictly prohibits marriage between mahram nasab. These prohibitions are a
consequence of social and ethical values, not just ritual law. The aim is to prevent transgressions, or
mafsadah, in society.77 Thus, the maqāṣid approach acts as both prevention and protection, and as a
link between the text and social reality.
Meanwhile, Law No. 1 of 1974 on Marriage and the Compilation of Islamic Law (KHI) prohibits
consanguineous marriage in Indonesia. Under Section 8 of the Marriage Law, marriage between two
individuals with a direct blood relationship upwards and downwards and a parallel relationship is
prohibited.78 KHI Section 40 expands the scope of this prohibition based on the principles of fiqh
maḏhab al-Shāfiʿī, which is dominant in Indonesia. Normatively, there is harmony between maqāṣid
and positive law in preserving lineage and family ethics. However, because Indonesian positive law
does not explicitly use the maqāṣid framework in its formulation, its approach tends to be legalistic.
It does not thoroughly examine the ethical and philosophical aspects underlying the prohibition.79

Rachmawati, “Kronologi Kakak Adik Sekandung Menikah Di Bulukumba,” kompas.com, July 2, 2019, https://regional.kompas.
com/read/2019/07/02/07300061/kronologi-kakak-adik-sekandung-menikah-di-bulukumba?page=1.
73
Maya Citra Rosa, “Terungkap Hubungan Inses Kakak Adik Di Bengkulu, Hamil Dan Punya Anak Berusia 2 Tahun,” kompas.
com, March 22, 2024, https://lipsus.kompas.com/pameranotomotifnasional2025/read/2024/03/22/164703078/terungkaphubungan-inses-kakak-adik-di-bengkulu-hamil-dan-punya-anak?page=all#page2.
74
Ryan Maulana, “Viral Grup Facebook Fantasi Sedarah, KPAI Koordinasi Dengan Polri Dan Komdigi | Tempo.Co,” tempo.co,
May 19, 2025, https://www.tempo.co/video/arsip/viral-grup-facebook-fantasi-sedarah-kpai-koordinasi-dengan-polri-dankomdigi-1483883.
75
Jasser Auda, Maqāṣid Al-Sharī‘ah as Philosophy of Islamic Law: A Systens Apprroach (London: IIIT, 2008), 248.
76
Mohammad Hashim Kamali, Maqāṣid Al-Sharī‘ah, Ijtihad and Civilisational Renewal (Washington: The International Institute of
Islamic Thought, 2012), 22.
77
Shihāb al-Dīn al-Qarāfī, Anwār Al-Burūq Fī Anwāʾ Al-Furūq, vol. J. 3 (al-Qāhirah: Ālam al-Kutub, 1998), 145–46.
78
Pemerintah Pusat Indonesia, Undang-undang (UU) Nomor 1 Tahun 1974 tentang Perkawinan.
79
Rifdah Alifiyah and Isa Anshori, “Legal Protection for Children in Cases of Domestic Violence in the Indonesian Households,”
El-Usrah: Jurnal Hukum Keluarga 6, no. 2 (December 30, 2023): 348–61, https://doi.org/10.22373/UJHK.V6I2.19153.
72

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The weak legal response to hidden consanguineous marriage practices occurs in society,80
Especially in indigenous communities that normalize such practices due to cultural reasons or legal
ignorance due to the absence of a clear maqāṣid framework in national law.81 However, the maqāṣid
approach can bridge the gap between legal texts and social dynamics and provide a more adaptive
and contextual normative framework.82 Integrating maqāṣid into the national legal framework will
strengthen the protection of human values and expand the scope of the law to be more inclusive and
reflective of today’s social realities.83
Implications of the Principle for the Protection of Lineage and Public Morals
The application of the principle of maqāṣid al-sharī‘ah to the legality of family relationships and
the protection of lineage in the context of Indonesian legislation is increasingly relevant when linked
to the development of progressive legal discourse in religious courts.84 For example, in a case in
the South Kalimantan Religious Court, some judges dared to recognise the parentage of children
from invalid marriages on the basis that child protection is a fundamental right that the mistakes
of parents cannot compromise.85 This approach is in line with the function of maqāṣid, particularly
ḥifẓ al-nasl, which views nasab not only as a formal legal matter, but also as social and psychological
protection for children.86 In this context, the flexibility of al-maslahah is key in determining the
priorities of maqāṣid amid contemporary social challenges.87 Therefore, the protection of offspring
can be prioritised over administrative formalities for the sake of greater welfare. This paradigm
emphasises that the prohibition of incest not only prevents biological damage, but also avoids the
emergence of marginalised children with legal status.88
Furthermore, maqāṣid al-sharī‘ah has evolved into a new approach developed by KUPI, namely
maqāṣid cum-mubādalah.89 This approach strengthens public moral protection (ḥifẓ al-‘irḍ) through
Gabriela Popescu et al., “Social and Demographic Determinants of Consanguineous Marriage: Insights from a Literature
Review,” Genealogy 2025, Vol. 9, Page 69 9, no. 3 (July 4, 2025): 69, https://doi.org/10.3390/GENEALOGY9030069.
81
Mahmoud Jaraba, “Rethinking Consanguineous Marriages in a Diasporic Setting: A Case Study of Ar-Rashidiyya Kinship
Community in Germany,” Journal of Family History 50, no. 1 (January 1, 2025): 97–114, https://doi.org/10.1177/03631990241252056.
82
Mohammad Fadel, “Muslim Modernism, Islamic Law, and the Universality of Human Rights,” Emory International Law Review 36
(2022), https://heinonline.org/HOL/Page?handle=hein.journals/emint36&id=731&div=&collection=.
83
Tamyiz Mukharrom and Supriyanto Abdi, “Harmonizing Islam and Human Rights Through the Reconstruction of Classical
Islamic Tradition,” Samarah: Jurnal Hukum Keluarga Dan Hukum Islam 7, no. 1 (March 31, 2023): 40–57, https://doi.org/10.22373/
SJHK.V7I1.16436.
84
Amal Fathullah and Muhammad Abduh, “The Relationship of Children and Their Biological Father (Comparative Study of
Positive Law of Indonesia, Thailand and Jordan),” Syariah: Jurnal Hukum Dan Pemikiran 22, no. 2 (December 19, 2022): 213–30,
https://doi.org/10.18592/SJHP.V22I2.8918.
85
Fitriyadi et al., “Redefining Legal Frameworks: Progressive Methods in Ascertaining Children’s Lineage from Fasid Marriages
in Religious Court Proceedings,” Syariah: Jurnal Hukum Dan Pemikiran 24, no. 1 (May 28, 2024): 148–71, https://doi.org/10.18592/
SJHP.V24I1.12894.
86
Azni Azni et al., “Pseudo-Maṣlaḥah and Epistemological Failure in Marriage Dispensation at Indonesian Religious Courts,”
Jurnal Ilmiah Peuradeun 13, no. 2 (May 30, 2025): 1399–1420, https://doi.org/10.26811/PEURADEUN.V13I2.2047.
87
Zahrul Mubarrak et al., “The Urgency of the Islamic Law and Contemporary Societal Challenges: The Flexibility of Al-Maslahah
in Determining the Hierarchy of Maqāṣid Al-Sharīʿah,” El-Usrah: Jurnal Hukum Keluarga 8, no. 1 (June 30, 2025): 344–65, https://
doi.org/10.22373/PXYDD884.
88
Bukhari Ali, Nur Wulandari, and Nahara Erianti, “Status of Children Born Out of Wedlock: A Study of Constitutional Court
Decision and Its Relevance to the View of Ibnu Taimiyah,” El-Usrah: Jurnal Hukum Keluarga 7, no. 1 (June 30, 2024): 406–26,
https://doi.org/10.22373/UJHK.V7I1.24200.this decision has faced significant controversy among Muslims, who constitute
the majority religious group in Indonesia. The majority of ulema (Muslim scholars
89
Faqihuddin Abdul Kodir et al., “Maqāṣid Cum-Mubādalah Methodology of KUPI: Centering Women’s Experiences in Islamic Law
for Gender-Just Fiqh,” AL-IHKAM: Jurnal Hukum & Pranata Sosial 19, no. 2 (2024): 519–45, https://doi.org/10.19105/AL-LHKAM.
V19I2.16617.often neglecting the lived experiences of women. This article examines innovative methodology proposed by the
Indonesian Congress of Women Ulama (Kongres Ulama Perempuan Indonesia, or KUPI
80

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recognition of the victim’s experience as a source of legal legitimacy. Such a methodology is relevant
to living fiqh in the practice of child marriage, where harm, both in terms of reproductive health,90
psychological, and social costs, far outweigh the benefits gained.91 Such an analysis confirms that
ḥifẓ al-‘irḍ in the modern context is not sufficient to emphasise symbolic honour alone, but must be
realised in preventive, educational, and rehabilitative legal mechanisms,92 especially for vulnerable
groups such as female victims of incest.93 Incest prevention policies from a maqāṣid perspective
must be participatory, involve victims, and transcend the boundaries of the law to address the social
realities faced.94
The implications of the maqāṣid approach can be indirectly found in Constitutional Court
Decision No. 46/PUU-VIII/2010. They set an important precedent that the determination of lineage
can be done through scientific evidence, such as DNA testing, even if the birth occurred outside
of a legal marriage.95 This view represents a contemporary development in maqāṣidiyyun thought,
proposing a shift from ḥifẓ al-nasl alone to ḥifẓ al-usrah as the basis for comprehensive family protection.
Integrating ḥifẓ al-nasl and ḥifẓ al-‘irḍ through scientific instruments, the flexibility of al-maslahah,
and a progressive legal approach that takes into account the context of living fiqh constitutes a
reformulation of the law. Indonesian legislation has the opportunity to establish a marriage law
system that is responsive to the complexities of modern society while remaining grounded in sharia
principles. This approach affirms that the protection of lineage and public morality in national law
need not be static but can evolve in accordance with broader public interest considerations.96

Conclusion
The issue of consanguineous marriage in Indonesia is not only a violation of the law but also
reflects a severe degradation of family integrity, lineage purity, and public morality. Based on the
analysis in this study, the prohibition of incest in both Islamic law and Indonesian national legislation
is rooted in the same ethical principles, namely safeguarding maqāṣid al-sharī‘ah, particularly ḥifẓ alnasab (protection of lineage), ḥifẓ al-nafs (protection of life), and ḥifẓ al-‘irḍ (protection of honor).
However, in practice, enforcement of this prohibition remains weak due to cultural tolerance, legal
loopholes, and a lack of preventive and educational mechanisms in society.
Islamic law not only prohibits incestuous relationships textually, but also through a more
G. Temaj, N. Nuhii, and J. A. Sayer, “The Impact of Consanguinity on Human Health and Disease with an Emphasis on Rare
Diseases,” Journal of Rare Diseases 2022 1:1 1, no. 1 (December 7, 2022): 1–7, https://doi.org/10.1007/S44162-022-00004-5.
91
Edi Kurniawan et al., “Early Marriage, Human Rights, and the Living Fiqh: A Maqasid Al-Shariʻa Review,” Al-Risalah: Forum
Kajian Hukum Dan Sosial Kemasyarakatan 20, no. 1 (May 28, 2020): 1–15, https://doi.org/10.30631/ALRISALAH.V20I1.565.
92
Ezieddin Elmahjub, “Islamic Jurisprudence as an Ethical Discourse: An Enquiry into the Nature of Moral Reasoning in Islamic
Legal Theory,” Oxford Journal of Law and Religion 10, no. 1 (November 13, 2021): 16–42, https://doi.org/10.1093/OJLR/RWAA023.
which aims to achieve an ethical state of affairs expressed as mas:lah: A (social good
93
Yusrizal Hasbi et al., “Criminalising Women, Silencing Victims: Human Rights and Sharia Enforcement in Aceh,” De Jure: Jurnal
Hukum Dan Syar’iah 17, no. 1 (June 6, 2025): 175–203, https://doi.org/10.18860/J-FSH.V17I1.29635.
94
Kutbuddin Aibak, Uin Sayyid, and Ali Rahmatullah Tulungagung, “Implementation of Maqāṣid Sharī’ah in Reform of Case
Management of Violence against Women and Children,” De Jure: Jurnal Hukum Dan Syar’iah 15, no. 1 (July 13, 2023): 82–98,
https://doi.org/10.18860/J-FSH.V15I1.20666.
95
Ali, Wulandari, and Erianti, “Status of Children Born Out of Wedlock: A Study of Constitutional Court Decision and Its Relevance
to the View of Ibnu Taimiyah.”this decision has faced significant controversy among Muslims, who constitute the majority
religious group in Indonesia. The majority of ulema (Muslim scholars
96
Syaza Shukri and Meor Alif Meor Azalan, “The Application of Maqasid Al-Shariah in Multicultural Malaysia: Developing
Strong Institutions for Interethnic Unity,” Contemporary Islam 17, no. 3 (October 1, 2023): 433–50, https://doi.org/10.1007/
S11562-023-00528-7/METRICS.
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profound and more comprehensive ethical framework of maqāṣid. This framework aims to maintain
family welfare, victims’ mental health, and lineage’s legitimacy as an essential element in social
order. Meanwhile, although Indonesian positive law explicitly prohibits consanguineous marriage in
various regulations, it has not fully utilized the maqāṣid approach in formulating and implementing
its rules.
Therefore, this study recommends the integration of maqāṣid al-sharī‘ah as a normative and interpretative
foundation in formulating future family law policies. Additionally, synergy between religious authorities,
academics, and legal policymakers is needed to build a more holistic legal and social system: repressive,
educational, and preventive. Further research can be directed toward the application of maqāṣid al-sharī‘ah
in other areas of family law, as well as exploring the potential of a human rights-based maqāṣid framework
in protecting vulnerable groups.

Acknowledgements
This research was made possible thanks to the full support of the Education Fund Management
Institution (LPDP) of the Indonesian Ministry of Finance. The author expresses his profound gratitude
for the funding and academic facilitation during the research process.

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