According to Islam, marriage is a holy bond which is declared lawful after the pronouncement of marriage vows whether in the first marriage, second, third, or fourth. Moreover, it is also a form of religious observance.

The abovementioned statements were conveyed by M. Insa, SH., a private entrepreneur from Bintaro Jaya, South Jakarta, when he was reading his petition in hearing for Judicial Review of Law Number 1 Year 1974 on Marriage (Marriage Law) in the court room of the Constitutional Court, Thursday (31/5). Insa filed a petition for Judicial Review of several articles in the Marriage Law, particularly the articles related to the limitation of poligamy for Indonesian citizens.

Insa stated that poligamy exists not only as an “emergency door” for a man who is destined to have an extremely high sexual desire but also as a solution provided by religion to prevent adultery. Therefore, poligamy is a form of religious practice in the Islamic law that can be considered as a commendable or even obligatory practice, depending on the case or circumstances. For that reason, any effort to limit poligamy can be considered as an act of preventing a person from observing religious teachings according to Islamic Law.

Insa added that the existence of the articles limiting the right to engage in poligamy in the Marriage Law have diminished a citizen’s right to exercise his religion teachings. Therefore, it can be regarded as a gross violation of human rights. “Because the freedom to exercise religious teachings is a part of the human rights which guaranteed by the 1945 Constitution,” he said firmly.

Insa filed a petition for Judicial Review against Article 3 Paragraphs (1) and (2), Article 4 Paragraphs (1) and (2), Article 5 Paragraph (1), Article 9, Article 15, and Article 24 of the Marriage Law which set forth the requirements to be met by a man intending to engage in a poligamy. According to him, those articles in the Marriage Law have impaired his constitutional rights to obtain the freedom of religion namely to apply religious teachings and to establish family as well as to have descendants through polygamy that is lawful according to the Islamic Marriage Law as guaranteed by the 1945 Constitution. As those articles have come into effect, if a man intends to engage in a poligamy without meeting the requirements provided by the Law, he cannot do so without a permission from the religious court. Without the permission, the marriage registrar will not register his poligamic marriage in the Religious Affair Office. As a consequence, his marriage is considered as an unregistered (siri) marriage, although it is legitimate pursuant to the Islamic Law and therefore it has different legal consequences with regard to inheritance, the children rights, etc.

Insa also considered that the limitation of poligamy is a form of state’s discriminations against the citizen’s rights in practicing religious teachings according to Islam which is guaranteed by the 1945 Constitution.

Following the validation of evidence presented by the Petitioner, the Chairperson of the Panel of the Constitutional Justices Lieutenant General (Ret.) H. A. Roestandi, S.H. said that he will refer the petition to the justices’ consultative plenary meeting which has the right to decide. (ardli)