Islamic Law and Ethics: The Role and Obligations of Marriage for Individuals with Intellectual Disabilities

Abstract


Introduction
Allah created man in the most perfect state compared to other creatures, this perfection is marked by the grace of Allah given to man in the form of brain and heart with the aim that he can think and feel.Syinqithi states that the logic of ratio is in the heart, just as hearing lies in the ear.This indicates an assumption error put forward by philosophers who state that the logic of ratio is located in the brain, even though it is in the human heart (Al-Syinqithi, 2019).Syinqithi is based on the Qur'an surah al-Hajj (22): 46.
"Then did they not walk upon the earth, and they had hearts by which they could understand, or ears by which they could hear? for Verily it is not the eye that is blind, but that which is blind is the heart that is in the bosom".Some people in this world are born in normal circumstances and some are in a state of disability, where they have the same position, rights, obligations, and roles in their lives and livelihoods.With research on people with disabilities, it is hoped that it will be able to deliver the government to pay more attention and accommodate its position, rights, obligations, and roles.Allah created human beings who are born in a state of enabling intelligence and disabling intelligence.Society gave rise to the term "people with intellectual disorders or intellectual disabilities", this term comes from the human mind (Rohman & Lamsuri, 2009).Someone who mentions with a certain name will carry behavioral implications for the party receiving the mention.Someone mentions the term defect, it will have negative connotations, namely shortcomings that cause grades or quality to be less good or less perfect, and vice versa (Pusat Bahasa (Indonesia), 2001).
Researchers chose the term disability rather than disability because Law Number 8 of 2016 mentions the term disabled person.Persons with disabilities have a definition: "Any person with long-term physical, intellectual, mental, and/or sensory limitations who interacts with the environment may experience obstacles and difficulties to participate fully and effectively with other citizens based on equal rights".People with disabilities have four varieties, namely: people with physical disabilities; persons with intellectual disabilities; persons with mental disabilities; and/or persons with sensory disabilities.Researchers assess the term disability as an attempt to eliminate the term disability that has negative connotations.Thus, the State sides with persons with disabilities with the use of this term.In Law Number 8 of 2016 concerning Persons with Disabilities, it is stated that the definition of a person with a disability is any person who experiences physical, intellectual, mental, and/or sensory limitations for a long time in interacting with the environment may experience obstacles and difficulties to participate fully and effectively with other citizens based on equal rights.
Everyone has equal rights in every area of their lives and this is guaranteed by The Universal Declaration of Human Rights such as personal rights, political rights, legal rights, substitution rights, economic rights, and social rights.Persons with disabilities have equal social rights that include the right to private life (Article 12), the right to marry and establish a household (Article 16), and the right to education (Article 27).Persons with disabilities have free will in performing marriages performed with holy intentions without any coercion, deception, or pressure.Marriages are performed by force.With the marriage bond, everyone has the same rights and obligations to treat their spouse kindly and consensually.
There are several studies on marriage for people with disabilities, such as the ability of people with mental disabilities according to Law No. 1 of 1974and Law No. 8 of 2016(Afiyanah, 2020), sakinah mawaddah and rahmah in marriages of people with disabilities can be realized based on loving ties, empathy, not based on pity, and exploitation (Firdaus & Ch, 2022), people with disabilities in Islamic law are allowed to IJLDR International Journal of Law Dynamics Review Volume 2, Nomor 1, May 2024 perform marriages, but will be bumped with social conditions in the environment that often discriminate and stigmatize (Rispler-Chaim, 1996).Islamic Law which has general principles that are qath'i (certain) among them, al-taysir (lighten), al-tashil (ease), alsamahah (tolerant), al-i'tidal (moderate), and raf' al-haraj wa al-masyaqqah (eliminate difficulties and objections), which is in Islamic sharia both law is manshush (explained clearly in the Shari'a) as well as the conclusions of jurists and mujtahids (Zuhaily, 1979).The community will likely be able to realize this Islamic law provided that it follows these principles.

Research Methods
This type of research is a type of library research and based on its nature, this research is categorized as descriptive research.Descriptive research is intended to provide as thorough data as possible about people, conditions, or other symptoms (Arikunto, 2010).Researchers also use a collaborative ijtihad approach, with this approach intended to explore maximally the opinions of classical fiqh, contemporary fiqh, and modern disciplines such as psychology about the position of people with intellectual disabilities as legal subjects in marriage.This type of research is a type of library research and based on its nature, this research is categorized as descriptive research (Suharsimi, 2003).

Critique of Misogynistic Fiqh and Review of Classification in Madhhab
People with intellectual disabilities do not know the gender of either male or female, old or young, Arab or non-Arab, and so on.Researchers disagree with misogynistic interpretations and fiqh about the existence of women, one of whom considers her intellect lacking.The reason this woman has the same position as men who distinguish is the quality of faith and piety alone.From the description of the opinion above, it can also be found that the scholars of Madhhab have not classified people with intellectual disabilities based on their intellectual intelligence, as the classification of people with intellectual disabilities consists of four levels, namely: Mild (lightweight), moderate (medium), severe (weight), and profound (severe) (Gautam & Singh, 2018).Nevertheless, the scholars of the madhhab agreed that they still acted as subjects of the law.They can receive their rights on condition according to the permission of their guardians.
Recognising that disability is an evolving concept and that disability is the result of interactions between people with disabilities and attitudes and environments that hinder their full and effective participation in society on an equal basis with others, recognising the importance of guiding principles and policies contained in the programme of world action on persons with disabilities and in the standard rules of equal opportunity For persons with disabilities in influencing the promotion, formulation and evaluation of policies, plans, programmes and actions at national, regional and international levels to further equalise opportunities for persons with disabilities, emphasising the importance of mainstreaming disability issues as an integral part of relevant strategies for sustainable development, recognising also that discrimination against everyone on the basis of disability is a violation of dignity and the inherent values of each person and also acknowledging the diversity of people with disabilities (Rompis, 2016).
Referring to its native language, the word safih ‫السفيه‬ has the verb ‫سفه‬ safaha which means foolish.Mashdar ‫سفها‬ 'safhan' means foolishness.The subject is ‫السافه‬ safih which means foolish people (Al-Munawwir, 1984).Safih has little wisdom (khiffah al-hilm) or no wisdom (naqidh al-hilm).Safih also means foolish man (al-jahil), it can also mean lack of reason (al-khafif al-'aql) (Ibn Manzhur, n.d.).That the word al-safih is the opposite of al-hilm, therefore the safih spends his wealth not according to needs and tends to commit hypothyroid and it is impossible to improve his nature and educate him at the age of tamyiz.The interpretation of safih is inherent like hypocrites.The word safih can mean, zhahir al-jahli (clear ignorance), 'adam al-aql (lack of reason), khafif al-lubb (low reason), dha'if al-ra'y (weak opinion), radi' al-fahm (poor understanding), mustakhiff al-qadr (poor ability), sari' al-dzanb (quick sin), haqir al-nafs (humiliation), makhdu' al-syaythan (deceived by Satan), Asir al-Thugyan (slave ruler), Da'im al-'Ishyan (frequent immorality), mulazim al-kufran (close to kufr), la yubali bi ma kana wa la bi ma huwa ka'in aw saufa yakunu (not caring about the past, present, let alone future) (Al-Kafawi, 1431H) The meaning of the word sufaha' is twofold, namely meaning haqiqi, which is the lack of reason possessed by women and children, and the second means majazi, heresy, ignorance, blindness, and their distance from Allah's guidance.In this study, researchers tended to use the meaning of haqiqi.But then there was controversy, whether this woman and child were also classified as lacking in reason.Researchers need to quote the opinion of Yusuf Qardhawi who argues that the word sufaha' is general, encompassing all people who lack sense, both children and adults, men and women (Al-Qardhawi, 1996).
Lack of thinking about something so that they are not good at spending possessions or people who behave extravagantly by following their passions by prioritizing wants over needs (Ibn al-Hammam, n.d.); Maliki scholars state that safih is the weakness of reason function of intelligence and intellect (Al-Qarafi, 1994); Shafi'iyya scholars state that safih is an un-rashid person who behaves extravagantly, uncaring and ignorant in his muamalah or behaves like a child or an old person but has a weak perspective to know certain limits (al-Nawawi, 1347H); and the scholar Hanabilah states that safih is lacking in thinking about things so that he is not good at spending wealth or one who behaves extravagantly by following his passions with how to prioritize wants over needs (Al-Syinqithi, 2019).

The Validity of Marriages of Persons with Intellectual Disabilities and Their Responsibilities
The marriage certificate of a person with intellectual disability is valid with the permission of the guardian, or valid if safih marries without the permission of the guardian, provided that the guardian permits or chooses safih (Ibn al-Hammam, n.d.); Malikiyah Madhhab scholars argue that a marriage contract performed by a person with intellectual disabilities is valid if he obtains permission from his guardian or if he does not obtain a marriage license is considered valid if the guardian agrees and vice versa (Al-Qarafi, 1994); Shafi'iyyah scholars argue that a marriage contract performed by a person with an intellectual disability is valid if he obtains permission from his guardian, but if he does not obtain permission then according to the majority of Shafi'iyyah scholars his marriage is considered invalid because the person with intellectual disability does not have the right to determine something related to him.This is because they cannot take care of themselves, so even the contract made is considered void except with the permission of the guardian (al-Nawawi, 1347H); and Hanabilah scholars argue that a marriage contract performed by a person with intellectual disabilities is valid if the guardian permits or the guardian has the right to allow to marry safih by being given the option to be chosen or to choose the woman himself absolutely or if safih married without the permission of his guardian, then the marriage is valid (Ibn Qudamah, 1997).

Madzhab Islamic Legal Opinion
Syafi'iyyah Marriages of persons with intellectual disabilities are valid with the permission of the guardian, without the permission of the guardian the marriage is considered void except the permission of the guardian Hanabilah A marriage with an intellectual disability is valid with the permission of the guardian, or valid if people with an intellectual disability are married without the permission of his or her guardian, provided the guardian permits or people with intellectual disabilities chooses

Table 2 Validity of Marriage of Persons with Intellectual Disabilities
In the opinion of the scholars of Madhhab The big question for researchers when reading the opinion of Malikiyah, Shafi'iyyah, and Hanablah scholars who allow the marriage of people with intellectual disabilities if they get permission from the guardian is whether the marriage is a guardian's right or not.The researcher states that the above opinion denies the existence of persons with intellectual disabilities as independent subjects of law, they are impaired in their intellectual and intellectual functions, and they are in the view of all madhhab scholars including people who are not rashid and not crazy people.For reasons not yet rashid, in terms of managing their property, they must go through the permission of their guardians, so it is feared that there will be chaos for reasons that are not good at taking away their rights or giving other people's rights and also behave extravagantly which they do by following their passions, meaning prioritizing their wants over their needs.
The above controversy is not the focus of this study, so the researcher will continue with the position of people with intellectual disabilities as legal subjects in marriage.According to researchers, although scholars agree on the validity of their marriages, the problem is the consequences after the marriage contract.Can they still be responsible for carrying out their obligations as both husband and wife?Or is there a distribution of the burden of responsibility to the guardian?Next, the researcher will first describe what is responsibility.Then will we discuss whether or not they can be responsible for their marriage?
Etymologically responsibility/tanggung jawab (n) is the state of being obliged to bear everything (if anything happens it can be prosecuted, blamed, prosecuted, etc.): the strike becomes --the leader of the trade union; and the right of function to accept the imposition, as a result of the attitude of oneself or another party (Pusat Bahasa (Indonesia), 2001).While in terms of responsibility is a consequence of the consequences of a person's freedom about his actions related to ethics or morals in doing an action (Soekidjo, 2010).The basis of responsible action is something that causes the emergence of a legal right for a person to sue others as well as something that gives birth to the legal obligation of others to give him accountability (Tutik & Febriana, 2010).Emmanuel Levinas gives a moral attitude when people encounter concretely with others, namely an attitude of responsibility.It is this attitude of responsibility towards others that makes him truly exist as a human being.When studied and analyzed critically, the concept of responsibility is very inspiring for the formation of one's attitude when relating to others.One of the bad tendencies of humans today is to use the presence of others to meet all their own needs.Likewise, an attitude of responsibility is usually carried out by a person, because there is an urge to meet his own needs (Wallace, 1994).

IJLDR
For example, in the field of marriage, it is often found that the husband carries out his responsibilities towards his wife because there are other motivations such as the fulfillment of inner income, for the sake of rules, the demands of religion, and the state.This kind of responsibility makes the wife a complement to herself.This means that responsibility towards the wife arises because there is an encouragement to fulfill the needs of a husband.This reality objectifies the wife because it uses the presence of the wife only to fulfill everything she needs.
Levinas broke such a sense of responsibility.For Levinas responsibility is always asymmetrical (non-reciprocity), transcending existing rules, concrete, and exceeding human freedom.Even the presence of others requires one to be responsible towards others.In other words, the ethical concept of responsibility is very inspiring for one's ethical actions (Sobon, 2018).From this description, researchers can state that according to Emmanuel Levinas people with intellectual disabilities will be less or even unable to be responsible, how can they be responsible, they are unable to distinguish which rights and obligations due to impaired intellectual and intellectual functions.
The responsibility of husbands with intellectual disabilities to their wives is because there are other incentives such as the fulfillment of inner income, for the sake of rules, the demands of religion, and the state.It may be that this kind of responsibility makes the wife a compliment and not a free subject.Especially if the responsibility towards the wife is under the supervision of the husband's guardian.Conditions like this seem to objectify the wife because using the presence of the wife only to fulfill everything she needs.
Researchers look at the classification of people with intellectual disabilities consisting of four levels, namely mild, moderate, severe, and profound, researchers can state that mild and moderate mental retardants may be responsible for the possibility that they can be educated, while the rest group may not be responsible because of the possibility that they cannot be educated.In the study of Roller et al. marriages made out of the total population of young adults with mental disabilities over five years were found with no one with a very severe mental disability married.Significantly fewer people with mild mental disabilities married at the age of twenty-two than normal.Then the married mild mental disability person turned out to have intellectual intelligence that was significantly higher than other people with mild mental disabilities.Women with mental disabilities have more problems in their marriages than normal women.However, marriages performed by women with mild mental disabilities almost seem to go well.The condition of people with mild mental disabilities is not significantly different from normal, but marriage among people with mild mental disabilities does have many problems (Koller et al., 1988).
When someone wants to do a wedding, then he should be ready physically and psychologically, this applies to the bride and groom who are "normal" both physically and mentally but if it turns out that the bride and groom have physical, intellectual, and mental disorders, then in this case a judge must play an active role in determining whether or not the bride or not to hold the wedding.Vardit Rispler-Chaim cites the fatwa of the Palestinian Egyptian and Gaza cleric allowing marriage: "In a fatwa from Gaza (1998) Sheikh Muhammad Dib Qusa is asked whether retarded people may marry at all.He concludes that they may, only if they evince attraction to members of the opposite sex.He explains that sanity ('aql) is not a prerequisite for marriage.In an Egyptian fatwa, the mufti distinguishes between 'atah (mental deficiency) and junun (insanity), claiming that 'atah is a quiet insanity and junun is a violent extrovert insanity.He permits the marriage of a ma'tuh (one who has 'atah) only as long as he or she can differentiate between good and evil, and if they have their guardian's consent to marry.'atah, contrary to junun, is believed to be less hazardous to the partner" (Rispler-Chaim, 2007).The above fatwa that marriage of people with intellectual disabilities is permissible, this happens if they do show interest in the opposite sex, meaning there is sexual attraction and they do have the right to do so.Please note that sex between biologically mature individuals with mild or moderate intellectual disabilities may be practiced by normative law.That the concepts of "sexual activity" and "intellectual disability" are briefly analyzed is challenging given that there are very different and sometimes somewhat awkward definitions of these concepts.Based on this analysis, that in the liberal principle is listed the consent of reciprocal relations, this if taken as a necessary condition of permissible sex, has unacceptable consequences for persons with intellectual disabilities.Many forms of sex between them will be morally impermissible, given the fact that their logical power is practically limited, so often when it comes to making valid consent it is almost impossible.As an alternative to the liberal principle of permissible sex, conditions are established that include additional consent from the guardian.If the person with this intellectual disability does not have the capacity for deliberation, then practically what is required for valid consent is to provide a psychological nurse who has the power of mature logic and must act as their substitute or representative in deliberation.Finally, some important implications for moral education for these nursing professionals should be spelled out in the future (Spiecker & Steutel, 2002).
According to Bosch as quoted by Spiecker & Steutel ideologically and religiously, one can produce definitions that link sexuality with communication, love, or, even marriage and reproduction.This happens as a result of many people with intellectual disabilities who do not seem to be sexual beings at all.But if one tries to avoid such ideological distortions by offering a neutral analysis, as we do, people with this intellectual disability appear as they are: individuals who may engage in sexual activity because, just like other human beings, they have sexual desire and can enjoy sexual pleasure (Spiecker & Steutel, 2002).
Even though these people with intellectual disabilities individually have problems recognizing, expressing, and balancing their emotions, they need to: have privacy; love and be loved; develop friendships and emotional relationships; learn about sex, sexual relations, safe sex and other issues related to sexuality (to protect oneself from sexual abuse); exercise their rights and responsibilities regarding privacy and sexual expression; enter marriage and become parents; and develop personal sexual identity according to age, social development, cultural values and social responsibility (Katalinic et al., 2012).
The people with severe intellectual disabilities and some who are currently not allowed to enter marriages or have children, while people with mild intellectual disabilities should have limited rights to enter marriages and have children in specific and very limited cases.It has been proven that women with mild intellectual disabilities often have normal male partners, while men with mild intellectual disabilities very rarely enter marriages (Gallagher, 2002).In the case of marriage it should be remembered that they can be victims of physical, mental, and financial violence by their spouse, so society must provide adequate protective measures.It should be mentioned that these people, before entering into marriage, should be given marriage counseling regarding duties and responsibilities, sexual relations, contraception, and possible sterilization before obtaining consent to marry.It has been observed that such marriages work well without children, while problems arise with the arrival of children (SHAMAN, 1978).
The people with intellectual disabilities do have the same legal rights to marry, drive a car, and own a home as other Americans.However, more than thirty states restrict or even ban their marriages because they are mentally unstable, although such marriage laws are rarely enforced.But when they are about to get married then the guardian or family member submits to the court to conduct a competency test (whether or not the person with an intellectual disability is intellectually competent in performing the marriage contract and its consequences) because this guardian may suspect manipulation or coercion behind the marriage.In this case, the Court may decide on the denial of fundamental rights such as the right to marry or reproduce using a high degree of scrutiny, to evaluate whether persons with intellectual disabilities are unfairly denied  2001).Guardians are also concerned about reproductive issues, a major challenge in reproduction is feared by guardians over the couple's ability to raise children in a safe environment, it could be that people with intellectual disabilities who act as parents in certain cases risk being deprived of parental rights because they are not fit in their rights and obligations (Can Mentally Challenged Couples Marry?, n.d.).Finally, researchers can argue that marriages with mild and moderate intellectual disabilities may be married based on classical jurisprudence as well as contemporary ijtihad, although the United States, which currently has a high civilization, restricts or even prohibits it.Researchers reason that a person with an intellectual disability is a human being who has basic needs for clothing, shelter, food, care, and sex.They are physically mature, but intellectually they may be like children.If the marriage of people with intellectual disabilities is banned, it will make them single or single for the rest of their lives.If researchers look at the facts on the ground, people usually want to care when they are children, adolescents, or even adults, but when people with intellectual disabilities are old and their close people die, who is obliged to take care of them?This, according to researchers by allowing marriage, will be more valuable for the good of people with intellectual disabilities both individually and socially.

Conclusion
This article illustrates the opinion of Islamic madhhab scholars who agree that persons with intellectual disabilities are subject to the law.In the Indonesian context, they receive equal recognition before the law that as subjects of law, persons with mild and moderate intellectual disabilities when performing a marriage contract are valid, whether they obtain permission from their guardians or not.However, before entering into marriage, marriage counseling should be given regarding possible duties and responsibilities, sexual relations, contraception, and sterilization before obtaining consent to marry.Despite acting as a subject of law, the remaining person with intellectual disability when performing a marriage contract is invalid, whether he obtains permission from his guardian or not.
The meaning of safih in the opinion of the scholars of Madhhab Marriages of persons with intellectual disabilities are legal without requiring permission from a guardianMalikiyah A marriage with an intellectual disability is valid if it has permission from the guardian, or if the guardian agrees or does not give permission, the marriage remains valid IJLDRInternational Journal of Law Dynamics ReviewVolume 2, Nomor 1, May 2024 IJLDRInternational Journal of Law Dynamics Review Volume 2, Nomor 1, May 2024 constitutional rights if they do not marry ("What Are the Legal Rights of the Retarded?,"