The Marital Rape Based on Contemporary

Islamic Criminal Law

Rodhotun Nimah1
1UIN Sunan Kalijaga Yogyakarta, Indonesia

Informasi Artikel Abstract

Penulis Korespondensi This research focuses on the relevance of the marital rape criminal
Rodhotun Nimah sanction contained in Regulation Number 23 of 2004 concerning the
[email protected] Elimination of Domestic Violence with Criminal Sanctions in Fiqh
Jinayah. This research is library research using the method of
History: comparative legal interpretation (comparative). The type of research
Submitted: 19-01-2023 used is qualitative research. The legal materials used are primary legal
Revised: 06-06-2023 materials in the form of classic and contemporary books as well as
Accepted: 30-06-2023 secondary legal materials in the form of books related to marital rape,
as well as legal science journals. The data collection technique in this
Keyword: study is documentation. The data analysis used in this study uses Abdul
Qadir 'Audah's'' analysis of thought. In this study, two conclusions were
Marital Rape;Contemporery; Islamic obtained, namely, that, according to Islamic law, marital rape is not in
Criminal Law. accordance with the teachings of Islamic law because Islam has taught
procedures and behaviors in husband-wife relations that must be
Kata Kunci: muasyarah bil ma'ruf by not hurting each other. Second, when viewed
Marital Rape; Kontemporer; Hukum from the perspective of Abdul Qadir Audah's fiqh jinayah, the sanctions
Pidana Islam. contained in the PKDRT Law have relevance to criminal sanctions in
Islamic law.
Abstrak
Penelitian ini terfokus pada relevansi sanksi pemidanaan marital
rape yang terdapat dalam Undang-undang No. 23 Tahun 2004
tentang Penghapusan Kekerasan Dalam Rumah Tangga dengan
sanksi pidana dalam Fiqh Jinayah. Penelitian ini merupakan
penelitian kepustakaan (library research) dengan mengunakan
metode interpretasi perbandingan hukum (Compperative). Jenis
penelitian yang digunakan adalah penelitian kualitatif. Bahan hukum
yang digunakan adalah Bahan hukum Primer yang berupa kitab
klasik maupun kontemporer serta bahan hukum sekunder yang
berupa buku-buku yang berkaitan dengan marital rape, serta jurnal
Copyright © 2023 by ilmu hukum. Adapun teknik pengumpulan data dalam penelitian ini
Al-Jinayah: Jurnal adalah dokumentasi. Analisis data yang digunakan pada penelitian
Hukum Pidana Islam ini menggunakan analisis pemikiran Abdul Qadir ‘Audah. Dalam
All writings published in this penelitian ini diperoleh dua kesimpulan yaitu, pertama, menurut
journal are personal views of the pandangan hukum Islam marital rape tidak sesuai dengan ajaran
authors. syariat Islam karena agama Islam telah mengajarkan tata cara serta
perilaku dalam hubungan suami istri harus lah muasyarah bil ma’ruf
dengan tidak saling menyakiti satu sama lain. Kedua, jika ditinjau
dari fiqih jinayah pemikiran Abdul Qadir Audah maka sanksi yang
terdapat dalam Undang-undang Penghapusan Kekerasan Dalam
Rumah Tangga (PKDRT) memiliki relevansi terdahap sanksi pidana
dalam hukum Islam.
 The Marital Rape Based on Contemporary…

A. PENDAHULUAN
1. Introduction
Along with the development of the era of domestic violence, such as physical,
psychological, sexual violence to neglect of family members, it is something that really
deserves to be discussed and analyzed up to the law and what sanctions must be
imposed. Sexual violence in the household is often taken for granted because victims or
perpetrators always think that this is normal, especially women who do not understand
the law and their rights or obligations as a wife. Domestic violence is considered a
domestic (private) matter which is closed and kept secret from public view1. Wives
prefer to remain silent about acts of domestic violence, so cases of this violence are
rarely revealed. One form of domestic violence is marital rape, a form of forced marital
relations which can hurt one of the parties both psychologically and physically. These
actions can be prosecuted by law, in accordance with Law no. 23 of 2004 namely
regarding the Elimination of Domestic Violence. With the Law no. 23 of 2004 concerning
the Elimination of Domestic Violence is one of the legal reforms to follow up on
perpetrators and protect victims from criminal acts of domestic violence.

The law mentions the provisions for sanctions for perpetrators of violence, Article
46 of Law No. 23 of 2004 concerning the Elimination of Domestic Violence states: "
Anyone who commits acts of sexual violence as referred to in Article 8 letter a shall be
subject to imprisonment for a maximum of 12 (twelve) years or a fine of up to Rp.
36,000,000.00 ( thirty-six million rupiah) ”. The criminal sanctions given to perpetrators
of domestic violence above must be viewed from the perspective of Islamic law. In order
to gain a comprehensive understanding apart from understanding positive Indonesian
laws. Where Islamic law besides regulating the relationship with the creator also
regulates household life. In Islam, the material aspect of criminal law certainly relates to
acts based on Shari'ah that have been determined (outlined) as a crime. Inequality in the
relationship between husband and wife has the potential to cause violence against the
wife. In fact, it is difficult to deny, if there is a dispute between husband and wife whose
origins are due to physical or psychological violence. Therefore the author is interested
in examining the relevance of sanctions against marital ripe crimes in Islamic law.

1Rika Saraswati, Perempuan Dan Penyelesaian Kekerasan Dalam Rumah Tangga (Bandung: PT. Citra
Aditya Bakti, 2006), 3.

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As for avoiding repetition of research that has been done before, the authors
conducted a search of several previous studies, namely first, research entitled The Act of
Rape of a Husband Against Wife ( Marital Rape ) in a Review of Islamic Law and Law No.
23 of 2004 (Study of Annual Records of Komnas Perempuan 2016-2018)2. This research
only focuses on Komnas Perempuan's CATAHU and forms of marital rape, and only
explains the overview of marital rape in Islamic law in general. Second , the research
entitled Protection of Women Victims of Domestic Violence in the Perspective of Islamic
Law3, this research only focuses on the concept of protecting women victims of domestic
violence in Islamic law. Third , the research entitled "Marital Rape in a Review of Islamic
Law and Law no. 23 of 2004 concerning the Elimination of Domestic Violence”4 . In this
study only discusses in general the Islamic view of Marital Rape. The difference between
the three previous studies and the author's research is that they focus on the relevance
of the punishment of marital rape in Islamic law and the Law on the Elimination of
Domestic Violence .

This research is a response to the lack of existing studies on the relevance of

positive legal criminal sanctions to Islamic criminal law in cases of domestic violence.
Domestic violence in Indonesia has been regulated by the Law on the Elimination of
Domestic Violence (PKDRT), which clearly states sanctions for perpetrators of domestic
violence. This needs to be examined for its relevance to Islamic law and viewed from
Fiqh Jinayah. The purpose of this research is to find out the views of Islamic law on
Marital Rape and the relevance of the sanctions contained in the Law on the Elimination
of Domestic Violence with Fiqh Jinayah.

2. Methods

This research includes library research ( library research ) using the comparative
legal interpretation method ( Compperative )5. The type of research used is qualitative
research, namely research that refers to legal norms contained in laws and regulations

2 Muhammad Rosyid Ridho, “Tindakan Pemerkosaan Suami Terhadap Istri (Marital Rape) dalam Tinjauan
Hukum Islam dan UU No. 23 Tahun 2004 Tentang P-KDRT (Studi Catatan Tahunan Komnas Perempuan
Tahun 2016-2018),” IAIN Ponorogo, 2020.
3 Bustanul Arifin, “Perlindungan Perempuan Korban Kekerasan Dalam Rumah Tangga Perspektif Hukum

Islam,” n.d.2016.
4 Muhammad Ayub, “Marital Rape Dalam Tinjauan Hukum Islam dan UU No. 23 Tahun 2004 Tentang

Penghapusan Kekerasan Dalam Rumah Tangga,” UIN Sunan Kalijaga, no. 23 (2004), https://digilib.uin-
suka.ac.id/id/eprint/10591/.
5 Ida Bagus Mantra, Filsafat Penelitian Dan Metode Penelitian Sosial, 1st ed. (Yogyakarta: Pustaka Pelajar,

2007).

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 The Marital Rape Based on Contemporary…

and the concept of jurisprudence that does not require a sample and population6. The
legal materials used are First , Primary legal materials in the form of classical and
contemporary books that discuss criminal sanctions in Islamic law. Second , secondary
legal materials in the form of books related to marital rape, as well as legal science
journals. The data collection technique used is documentation, namely looking for
materials that are related to the discussion of titles in the form of books, books or
journals7. The data analysis used in this study used the analysis of the Fiqh Jinayah
Abdul Qadir 'Audah by reducing the data, presenting the data and then drawing a
conclusion. .

B. RESULTS AND DISCUSSION

1. Discourse on the Development of Marital Rape in Indonesia
Talking about marital rape in Indonesia means also talking about the laws that
apply in Indonesia, the principles that must be included in a legal regulation that has a
human rights perspective and justice and gender equality (Sari and Sularto, 2019). In
order for violence against women to be reduced or prevented, the law must be properly
enforced. In the following, the author describes the laws in force in Indonesia. a. The
Criminal Code, Articles 285 to 287 are arrangements for coerced intercourse outside of
marriage and article 287 also discusses victims of underage sexual intercourse. In the
Criminal Code there is no regulation regarding rape or forced intercourse in marriage in
general, it is only discussed if the victim is underage and causes injuries. Because
coercion of intercourse is only regulated outside of marriage, coercion of relations
within marriage is not criminalized. b. Law Number 23 of 2004 Concerning the
Elimination of Domestic Violence (PKDRT) Law Number 23 of 2004 Concerning the
Elimination of Domestic Violence (PKDRT) discusses regulation of domestic violence,
namely the coercion of sexual relations carried out on people who living within the
scope of the household is " forced sexual intercourse committed against people who live
within the scope of the household " and there are already provisions for punishment.
The forms of domestic violence as mentioned above can be perpetrated by
husbands against their family members in the form of: Physical violence, which results
in pain, falling ill or serious injuries, Psychological violence which causes fear, loss of

6Zainuddin Ali, Metode Penelitian Hukum (Jakarta: Sinar Grafika, 2018), 105.
7Afrizal Afrizal, Metode penelitian Kualitatif: Sebuah upaya Mendukung Penggunaan Penelitian Kualitatif
dalam Berbagai Disiplin Ilmu (Jakarta: PT. Raja Grafindo Persada., 2014), 21.

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self-confidence, loss of ability to act , a feeling of helplessness, etc. Sexual violence, in the
form of sexual coercion in an unnatural way, both for husbands and for other people for
commercial purposes, or certain purposes; and household neglect that occurs within the
scope of the household, which according to the law is obligatory. In addition, neglect also
applies to everyone who causes economic dependence by limiting and/or prohibiting
proper work inside or outside the home, so that the victim is under the control of that
person (Bull District Court).
Violence against women, including domestic violence is an iceberg phenomenon,
not all cases of domestic violence are reported. Based on CATAHU 2022, it shows that
the highest number of violence in the realm of domestic violence/personal relations is
the same as the previous year, namely KTI which reached 2633 cases (50.2%), an
increase of 0.2% from the previous year, followed by KDP 1222 cases (23.3%), KTAP
910 cases ( 17.4%), KDRT – other RP 279 cases (5.3%), KMP 112 cases (17.4%), KMS 75
cases (2.1%) and domestic workers 12 cases (0.2%). This high KTI shows the highest
consistency of reports compared to other types of domestic violence even though the
pandemic is over. The following is data on complaints to Komnas Perempuan in the
personal and age domains. The details are as follows (Catahu, 2022 ):
Table 1. Forms of Violence Based on Komnas Perempuan Data and 2021 Service
Institution Data.
Forms of domestic violence Amount (%)

Physical violence 4814 cases ( 30 %)

Sexual violence 4660 cases ( 29 %)

Psychological violence 4754 cases (2 9 %)

Economic violence 1887 cases (1 12 %)

Source: Komnas Perempuan Annual Records, 2022 .

In this case of marital rape, there should be weighted punishment because in

Indonesian patriarchal culture, the husband is the head of the household who should
protect, not hurt. The existence of a weighting sentence is intended so that the public
knows that marital rape is a crime and wrongdoing.

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2. Sexual Relation in Islam

Islam views sexual behavior as not a taboo subject. We can see this from the fiqh
literature which talks about sexuality in a clear and detailed way, for example when fiqh
explains how to prove extramarital sex, menstruation, even sexual activity (sexual acts)
are discussed there8. In the hadith there are so many chapters and books that talk about
sexuality. Likewise in the Koran, there are so many verses that respond to this
humanitarian problem, for example QS. al-Baqarah: 222 and 223 about menstruation
and about husband and wife sexuality, QS. an-Nisa' about the relationship between
husband and wife, and many more. Thus, it turns out that sexuality (concept and social
construction) on values, orientations, and behavior related to sex is not a taboo subject
for discussion because it is always discussed both in the Koran, hadith, fiqh, and other
literature. This fact dispels the impression that sexuality is a taboo subject to discuss.
According to Yusuf Qardhawi, not a single scholar forbids discussing this as long as it is
within the framework of knowledge and study. As there is a discussion contained in sura
al-Baqarah: 223. The text and translation of Surah al-Baqarah verse 223 is as follows:
‫نساءكم حرث لكم فأتوا حرثكم أىن شئتم و قدموا ألنفسكم و اتقو هللا واعلموا أنكم ملقوه و بشر املؤمنني‬

Meaning: Your wives are (like) the land where you grow crops, so come to the land where
you cultivate it however you want. And do good deeds for yourself and fear Allah that you
will meet him one day. And give glad tidings to those who believe.

Based on the sexual textuality of husband and wife in QS. al-Baqarah: 223 above,
there are at least two things that can be understood at a glance; first, the wife is like a
garden; and secondly, orders to come to the wife however the husband wants. Based on
research prior to knowing asbabun nuzulnya, some people understood this verse as a
sexual intercourse technique, women are sex objects who must be willing to accept
whatever sexual behavior their husband has towards him. The stigma attached to the
wife makes the wife vulnerable to domestic violence, especially sexual violence. After
putting forward the asbab an-nuzul , they found out that the verse above explains that
sexual orientation is permissible, regarding the permissible place, namely the vagina,
not the anus. The parable of the wife as a field shows that the Qur'an guarantees
reproductive health for the wife in sexual matters because in order for the field to be

8 Durrotun Nafisah, “Relasi Seksual Suami-Isteri Dalam Persepektif Al-Qur’an” 2 (2013),

http://ejournal.iainpurwokerto.ac.id/index.php/yinyang/article/download/1149/859/.

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fertile it must be fertilized and things that can damage or interfere with fertility must be
avoided. This parable also dispels the notion that only a wife must be good at keeping
her husband happy so that he does not turn away from his wife. This verse gives
guidance on the right time to visit the wife as a farmer chooses the right season to plant
crops. This means that the husband may not exploit his wife or force her will at will.
3. Theory of Fiqh Jinayah 'Abd Qadir 'Audah
In Islamic law a criminal act is called jinayah, but some jurists use Jarimah.
According to 'Abd Qadir 'Audah, the notion of jinayah according to the term fiqh is an act
that is prohibited by syara', whether the act involves life or property or anything else9.
But he said that most fiqh scholars use the word jinayah in a special meaning, namely for
actions that affect a person's soul or limbs, such as killing, injuring and beating.
As for the criteria for an act to be said to be a crime, 'Abd al-Qadir 'Audah
formulated it into three forms of pillars (cases), as follows10: 1) Pillars of syar'i (laws),
namely the existence texts that prohibit an act by punishing it; 2). The pillars of maddi,
namely the existence of actions that form a finger, whether in the form of real actions or
not; 3). The pillars of adab, namely the existence of actions (mukallaf people), namely
people who can be held accountable for the jarimah they have done.
The principles in Islamic criminal law can be classified into three types, namely:
first; legality principle, second; material principle and third; the principle of morality.
The principle of legality is a principle relating to the formal elements of Islamic criminal
law. And what is meant by the principle of legality is the principle which states that
there is no crime and no punishment before there is a regulation that regulates it, this is
in accordance with the ka'idah which reads:
‫ال جرمیة وال عقوبة اال ابلنص‬

Meaning: " There is no crime and no punishment without prior criminal law" 11.

According to Abd al-Qadir Audah and Wahbah al-Zuhaili, the material principle of
Islamic criminal law only covers actions that are forbidden by syara' to be carried out, be
it acts concerning life, property and others. Based on this material principle, sanctions in
Islamic criminal law are classified into three types, namely hudud, qisas and ta'zir.
Hudud and qisas are legal sanctions whose levels have been clearly determined based

9 Abdul Al-Qadir Audah, At-Tasyri’ Al-Jinaiy Al-Islamy (Beirut: Dar Al-Kitab Al-‘Arabi, TT.), 67.
10 Wahbah Zuhaily, Ushul al-Fiqh al-Islami, 2 (Damsyik: Dar al-Fikr, 1986), 215.
11 Wahbah Zuhaily, Al-Fiqh al-Islami Wa Adillatuhu, 4 (Damsyik: Dar Al-Fikr, 1989), 1020–2024.

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on texts ( nass ), both the Qur'an and al-Hadith. In the implementation of this material
principle, the principle of legal certainty must be upheld, that is, for a crime where there
is still suspicion of doubt (doubt or ambiguity), it may not be subject to punishment.
This is in accordance with the principles of Islamic criminal law12 :
‫احلدود تسقط ابلشبهات‬

Meaning: " Rejected punishment because of doubt ".

While the principle of morality is a principle relating to the morals of Islamic

criminal law, this moral principle includes, the principles of 'adam al-'uzri, raf'u al-kalam,
and suquth al-'uqubat (abortion of punishment). The principle of 'adam al-'uzri is not
accepting someone's statement because he does not know the law, this principle is
closely related to the principle of legality.
Based on the theory of fiqh jinayah described above, it says that domestic rape is
included in a criminal act which has fulfilled several of the pillars mentioned.
Nevertheless, Islamic law clearly does not find a form of punishment or finger for the
behavior of forcing sexual relations between husband and wife. However, Islamic law
regulates the prohibition of inappropriate sexual intercourse, such as through the anus.
In this case, the Fuqaha differ in giving criminal sanctions. According to Abu Hanifa, the
culprit was sentenced to ta'zir because it was not considered adultery. Meanwhile,
according to Imam Malik and Syafi'i, the culprit is still sentenced to hadd on the basis of
qiyas, namely being charged with adultery.
Ta'zir is a form of jarimah whose punishment is determined by the authorities so
that full authority lies with the authorities for the benefit of the people. Other forms of
sexual violence, for example in this case resulting in bodily injury or the ability to have
intercourse, in this case Islam establishes a diyat law with one hundred camels. Diyat in
the sense of jarimah is an act committed by a person against the object of the soul and
limbs, whether the act results in death, only results in injury or the malfunction of the
victim's limbs, which is done accidentally or semi-intentionally13.
Islamic law is prescribed by Allah SWT. to protect the benefit of mankind, both
individual benefit and the benefit of society or both. The benefit of mankind which in
general can be classified into three aspects, namely daruriyat (primary), hajiyyah

12 Abdul Hamid Hakim, Mabadi’awaliyah Fi Ushul Al- Fiqh Wa Qowaid Al-Fiqhiyah (Jakarta: Maktabah
Saadiyah Futra, 1927), 39.
13 Hakim, 133.

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(secondary) and tahsiniyah (complementary). To guarantee and maintain this benefit,

Islam establishes a number of rules in the form of commands and prohibitions. This rule
is accompanied by threats of worldly and ukhrawi punishment when violated. Basically
the purpose of imposing legal sanctions according to Islamic Criminal law is prevention,
teaching and education which is intended so that the perpetrators of criminal acts can
take lessons from what the perpetrators of crimes get when they are punished.
This has relevance to the sanctions imposed on perpetrators of domestic violence
as contained in Law Number 23 of 2004 concerning the Elimination of Domestic
Violence. In article 46 of Law Number 23 of 2004 concerning the Elimination of
Domestic Violence and reaffirmed in article 48. The imposition of criminal sanctions in
prison and fines shows that the sanctions in Law Number 23 of 2004 concerning the
Elimination of Domestic Violence have relevance to sanctions criminal law in Islamic law
especially the crime of violence in the household. The imposition of sanctions both
Islamic law and Indonesian state law against crimes of domestic violence in the
household has the same goal, namely for the benefit of the ummah.
Etymologically, marital ripe consists of two words, namely, Marital, which is
related to marriage, and rape, which means rape. So marital rape is rape committed by a
husband to his wife in a marital relationship. Rape in marriage (marital rape) can be
interpreted as a type of violence in the form of coercion of sexual relations by a husband
against his wife without considering the condition or condition of the wife14 . Judging
from Law no. 23 of 2004 concerning the Elimination of Domestic Violence (UU PKDRT),
marital rape can be categorized as a form of domestic violence (KDRT). In Article 1 point
1 of the PKDRT Law, it states that domestic violence is an act that perpetrated against a
person, especially women within the scope of the household, where the actions
committed can cause suffering both physically and psychologically, can also be in the
form of neglect in the household and actions in the form of illegal deprivation of liberty.
Domestic violence can be interpreted as an act in the form of violence or threats of
violence with the aim of suppressing or controlling people who are in the same
household.
Sexual violence is an example of domestic violence contained in Article 8 of the
PKDRT Law. What is meant by sexual violence is sexual relations that are carried out

14 Aldila Arumita Sari and R B Sularto, “KEBIJAKAN FORMULASI KEKERASAN SEKSUAL TERHADAP ISTRI
(MARITAL RAPE) BERBASIS KEADILAN GENDER DI INDONESIA,” Jurnal Pembangunan Hukum Indonesia
1, no. 1 (January 29, 2019): 117, https://doi.org/10.14710/jphi.v1i1.117-127.

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with violence or threats of violence against people who live or live within the scope of
the household. (Soeroso, 2012). Sexual violence has several categories of sexual violence
itself, namely: a. isolation of the wife from her inner needs; b. sexual relations that the
wife does not want; c. forcing a wife to work as a prostitute and so on. Based on this,
even though in the Indonesian general criminal law (KUHP) the term marital rape has
not been regulated, this act has actually been regulated in the PKDRT Law in Article 8
which is related to sexual violence, even though the formulation of the article in the law
The law is still very broad, because the victims in question are all people who live within
the scope of the household, whether people who are related by blood or not, such as
housemaids and so on.
The phenomenon of marital rape cannot be underestimated, considering that the
impact of this act is very broad, not only for the wife who becomes the victim, but also
for children and other relatives in the family. Based on the Annual Records on Violence
Against Women compiled by Komnas Perempuan in 2022, it describes a variety of
spectrums of violence against women that occurred throughout 2021 and there were
the highest cases in a new pattern that was quite extreme (CATAHU 2022).
Rape in marriage ( marital rape ) as an act that is prohibited, which is actually
regulated in law, the consequences for those who commit these prohibited acts will be
subject to sanctions, especially criminal sanctions. The imposition of sanctions itself
must first pay attention to whether the person is able to take responsibility for the
actions he has committed or not. The reason for imposing a criminal offense against
someone is not enough on the grounds that the person's actions have fulfilled the
elements of a delict in the law. In addition to these reasons, there are still other
conditions that must be met in order for a person to be subject to a criminal charge, this
condition is the existence of an element of guilt ( subject guilt ) in a person who commits
the act. Error itself is a determining factor of criminal liability. Every action that is
categorized as a crime, if it is violated by someone, that person is obliged to be
responsible for the crime, unless the person is unable to be held accountable. It has been
explained in the previous discussion, which states that marital rape is a form of sexual
violence that occurs within the household as stated in Article 8 of the Law on the
Elimination of Domestic Violence. This law also includes criminal provisions for people
who commit these acts which are regulated in Article 46.

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Forcing intercourse by means of violence is an act that is not commendable. The

act will only cause the wife's mental and physical suffering. The wife's unpreparedness
to serve forced sexual relations will only bring various symptoms of health problems,
especially in the reproductive organs. The wife's refusal stems from two factors, namely
physical and psychological. Meanwhile, husband coercion is influenced by two elements,
namely sexual libido and sexual behavior. One of God's purposes in providing a place for
marriage for his people is to justify sexual relations between each partner. In principle,
in sexual relations, husband and wife have the same rights (a balance between the rights
and obligations of husband and wife). Forcing sexual relations against wives is not
permitted by religion on the grounds that in forced husband and wife relations, there is
a real denial of the principle of mu'asyara bil ma'ruf (treating properly), once again in a
way that is ma'ruf which is highly emphasized in al- Koran. According to the author,
based on the principles of justice and equality of men and women, this problem can also
apply to husbands when they refuse to serve their wife's sexual desires. This is in line
with Islamic provisions which do not belittle a woman's sexual rights which are equally
important.
According to Abdul Qadir Audah, something that is said to be a crime must have
three elements, including something that is prohibited by texts or laws; there is an
action in the form of finger; there is an act (mukallaf person), that is, a person who can
be held accountable for the finger he has committed15. If based on the pillars above, this
act of domestic violence, especially rape in the household in Islam, is considered a
criminal act. Even though it clearly did not find a criminal or finger form against
domestic rape. The Fuqaha differ in giving criminal sanctions in this case. According to
Abu Hanifa, the culprit was sentenced to ta'zir because it was not considered adultery.
Meanwhile, according to Imam Malik and Syafi'i, the culprit is still sentenced to hadd on
the basis of qiyas, namely being charged with adultery. Jarimah ta'zir is a crime that is
punishable by ta'zir punishment, namely a punishment that is not specified in a şarih
(clear) text in both the Qur'an and al-Hadith relating to crimes that violate the rights of
Allah and the rights of servants , serves as a lesson for the perpetrator and prevents him
from repeating the same crime again. Muhammad Abu Zahrah defines ta'zir with the
punishments set by the authorities in order to prevent loss and prevent crime16.

15 Zuhaily, Al-Fiqh al-Islami Wa Adillatuhu, 216.

16 Zuhaily, 216.

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From the two definitions above, it can be understood that ta'zir punishment is a
punishment determined by the authorities (judges) against various forms of immorality,
whether it violates the rights of Allah or the rights of servants that are harmful or
disrupt the benefit of the general public. Regarding the form of ta'zir punishment,
Islamic law does not stipulate in detail and strictly the form of punishment that can be
imposed on the perpetrator. However, 'Abd al-Qadir Audah divided the forms of ta'zir
punishment into several forms, namely: first , death penalty; second , vol punishment;
third, imprisonment; fourth, exile & crucifixion; fifth, the punishment of
excommunication ; sixth , the punishment of reproach ; seventh , punishment of threats;
eighth, tashhir punishment; ninth , fines17 .
According to 'Abd al-Qadir Audah, the principle of ta'zir punishment in Islamic law
is not to destroy, but only as ta'dib or teaching. However, most fiqh scholars make an
exception from this general rule, namely the permissibility of imposing the death
penalty, if desired by the public interest, or if the problem cannot be resolved except by
killing him18. The essence of jarimah ta'zir is immoral acts that harm or disturb public
order and it is the authority of the judge to impose certain penalties in accordance with
the violations committed because there are no concrete syara' provisions in this matter.
It can be explained that from the violated rights, the ta'zir jarimah can be divided
into two parts, namely; a. Jarimah ta'zir who offends the rights of Allah. b. Jarimah ta'zir
which violates individual or human rights. When viewed in terms of its nature, the ta'zir
jarimah can be divided into three parts, namely; a. Ta'zir for committing immoral acts; b.
Ta'zir for committing acts that endanger the public interest; c. Ta'zir for breaking the
law. In addition, when viewed in terms of the legal basis (stipulation), the ta'zir can also
be divided into three parts, namely; a. Jarimah ta'zir originating from jarimah hudud or
qishah, but the conditions are not met, or doubtful, such as theft that does not reach the
nishab, or by the family themselves. b. Jarimah ta'zir whose types are mentioned in the
syara' texts but the law has not yet been established, such as usury, bribes and reduced
measures and weights. c. Jarimah ta'zir, both types and sanctions have not been
determined by syara'19.
The ta'zir punishments are very numerous, because they cover all immoral acts
whose law has not been determined by syara' and are left to ulil amri to arrange them

17 Audah, At-Tasyri’ Al-Jinaiy Al-Islamy, 218.

18 Zuhaily, Al-Fiqh al-Islami Wa Adillatuhu, 2020–24.
19 H. M. Nurul Irfan and Masyrofah, Fiqh Jinayah, Cet. 1, ed. 1 (Jakarta: Amzah, 2013), 147.

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from the lightest to the heaviest punishments. In the settlement of cases that include the
ta'zir finger, the judge is given the authority to choose between the two punishments,
which one is in accordance with the finger that was carried out by the perpetrator. In
ta'zir, the punishment is not stipulated by provisions (from Allah and His Messenger),
and the qadhi or judge is allowed to consider both the form of punishment to be
imposed and the extent20.
From the description of the types of jarimah ta'zir, the ta'zir punishment can be
divided into four parts, namely 1). ta'zir punishment related to the body which consists
of two punishments namely death penalty and flogging punishment. 2). ta'zir
punishment related to independence in the form of imprisonment and exile. 3). ta'zir
punishment related to property, namely the status of the property owned by the
perpetrator, that is, the property is detained. 4). other ta'zir punishments, what is meant
by other ta'zir punishments are other than the ta'zir punishments mentioned above,
namely: a) Strong warning; b) Present before the court; c) Given advice; d) Reproaches;
e ) Exclusion; f) Dismissal; g) Announcement of errors openly (Sabrani, 2019).
Based on the explanation of the theory of jinayah in Islam, the punishment for
perpetrators of criminal acts of rape in the household can be sentenced to ta'zir in the
form of ta'dib or teaching. In this case the crime of rape in the household has violated
human rights, namely depriving a wife of her right to freedom in sexual relations.
Therefore, the perpetrator of the crime has the right to be sentenced to prison, and if the
act takes life or is related to the body, then he deserves the death penalty and flogging.
If referring to Law no. 23 of 2004 concerning the Elimination of Domestic Violence,
in which Article 46 states that anyone who commits an act of sexual violence as referred
to in Article 8 letter a (coerced sexual intercourse against a person who resides within
the scope of the household) shall be punished with imprisonment a maximum of 12
(twelve) years or a maximum fine of Rp. 36,000,000.00 (thirty-six million rupiah). The
sanctions contained in the law are relevant to Islamic criminal sanctions in cases of
domestic rape. Even so, the judge has a prerogative right where the judge has the right
to impose a sentence beyond the sanctions listed in the written regulations based on
existing legal facts.

20 Abdul Rahman, Tindak Pidana Dalam Syariat Islam (Jakarta: Rineka Cipta, 1992), 14,
http://opac.lib.unlam.ac.id/id/opac/detail.php?q1=297.44&q2=Abd&q3=t&q4=979-518-222-6.

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 The Marital Rape Based on Contemporary…

C. CONCLUSIONS

Domestic violence in Indonesia is still very high. This is influenced by several

factors, both external and internal factors, including individual factors, partner factors,
socio-cultural factors, and economic factors. Domestic rape includes domestic violence
caused by a partner. Domestic violence in Indonesia is regulated in Law no. 23 of 2004
concerning the Elimination of Domestic Violence. The regulation contains sanctions for
perpetrators of domestic violence, including domestic rape.

Article 46 clearly states that anyone who commits sexual intercourse to a person
who resides within the scope of the household shall be punished with imprisonment for
a maximum of 12 (twelve) years or a fine of up to Rp. 36,000,000.00 (thirty six) million
rupiahs). These sanctions have relevance to Islamic criminal law. Although Islamic
criminal law explicitly contains no provisions regarding punishment or sanctions
against domestic violence, based on the theory and opinions of the fuqaha and as
explained above that domestic violence is subject to ta'zir or punishment, either in the
form of imprisonment or fines even if to the loss of life or related to the body will receive
the death penalty or flogging. Islam does not heed the existence of rape in the household,
because it violates the Shari'a, because Islam has taught how to relate in the household
with mu'asyarah bil ma'ruf both in behavior between husband and wife and procedures
for sexual intercourse.

Based on the conclusions above, there are several suggestions that the author
proposes, including: The government must be burdensome against marital rape criminal
sanctions in order to have a deterrent effect on perpetrators. In addition, the
government is obliged to socialize the law related to Marital Rape. Because the theory of
socialization of legislation uses the theory of legal fiction, if it has been published in the
state gazette and given a certain period of time, the whole community is considered to
know, even though one of the factors causing the large number of domestic violence is
due to people who are not competent at law and tend to be ashamed (don't dare to
report it). because they consider that the problem of domestic violence is a domestic
problem and is supported by Indonesia's patriarchal culture which considers that
placing the husband as the head of the household should protect and nurture not hurt.

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