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The Constitutional Court declared that the provisions of Law No. 1 Year 2007 regarding Marriage (the Marriage Law) to the effect that the principle of marriage shall be monogamy, and that polygamy is allowed with certain reasons, conditions and procedures are not contradictory to Islamic teachings and the right to establish a family, the right to the freedom to embrace a religion and to worship according to his/her religion as well as the right to be free from discriminatory treatment as provided for in the 1945 Constitution.

 

Such statement was made during the hearing scheduled for the pronouncement of decision on Case No. 12/PUU-V/2007 for judicial review of the Marriage Law filed by M. Insa, an entrepreneur from Bintaro Jaya, South Jakarta on Wednesday (3/10), at the Constitutional Court Building.

 

In his petition, Insa claims that 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 has reduced the right to the freedom to worship namely by polygamy. In addition, according to Insa, such articles which require the consent of the wife and of the court to practice polygamy have impaired his freedom, freedom to embrace a religion and his prerogative right in family life, have impaired human rights as well as are discriminatory.

 

  

Articles of the Marriage Law declared Not Contradictory to the Constitution

 

Article 3

Paragraph (1): "In principle, in a marriage, a man shall only be allowed to have a wife, and a wife shall only be allowed to have a husband ".

Paragraph (2): "The court can give someone the permit to have more than one wife".

 

Article 4:

Paragraph (1): "In the event that a husband intends to have more than one wife, he is obligated to submit an application to the court of his domicile".

Paragraph (2): "The court shall only give the permit to a husband who intends to have more than one wife on the following conditions:

a. The wife can no longer perform her obligations as a wife;

b. The wife has a physical handicap or suffers from an incurable disease;

c. The wife is incapable of procreation.

 

Article 5 

Paragraph (1): "To be able to submit the application to the Court, the following requirements must be fulfilled:

a. There is a consent from the wife/wives;

b. It is certain that the husband is capable of guaranteeing the living needs of the wives and their children;

c. There is a guarantee that the husband will give a fair treatment to his wives and their children

 

Article 9: "A person who is still bound by a marriage with another person can not enter another marriage except in the event as referred to in Article 3 Paragraph (2) and Article 4 of this law."

 

Article 15: "Whosoever due to a marriage is still bound together with one of both parties and based on the existing marriage can prevent the new marriage.”

 

Article 24: "Whosoever due to a marine is still bound with one of the parties either of the parties and based on the existing marriage can apply for cancellation of the new marriage.” 

 

In the hearing open for the public, the Constitutional Court declared to dismiss the petition of M. Insa because the arguments presented are groundless. In its legal considerations, the Constitutional Courts states its opinion that the articles of the Marriage Law containing the reasons, conditions and procedures for polygamy, actually serve as the effort to guarantee the fulfillment of the rights of wives and wives-to-be which becomes the obligation of the husband practicing polygamy in the context of realizing the objective of a marriage.

 

The objective of a Marriage, as conveyed by expert M. Quraish Shihab, in the previous hearing as quoted in the legal considerations of the decision, is to obtain serenity (sakinah). The Sakinah can be perpetuated if both parties as a couple maintain the mawaddah, namely the unconditional love between them, merely for their desire to sacrifice by giving happiness to the spouse.

 

According to Shihab, egoism, namely the tendency to merely obtain anything to please oneself, even though it hurts the spouse, will break the mawaddah. For this reason, to maintain a sakinah family, it is normal that a husband who intends to practice polygamy shall ask for his wife’s opinion and consent to make sure she is not hurt. In addition, the wife’s consent is required because it is closely related to the status of the wife as an equal partner and as a legal subject in a marriage whose status and dignity must be respected.

 

Expert M. Quraish Shihab also stated that the principle of marriage adhered to by Islamic teachings is monogamy. Polygamy constitutes an exception which can be sought under certain circumstances, both in the objective aspect in relation to time and place and in the subjective aspect in relation to the parties (actors) in such a marriage.

 

In connection with one of the most important requirements for polygamy namely fairness, Expert Ahli Huzaemah T. Yanggo, as quoted in the legal considerations of the decision, stated his opinion that the fiqh principle applicable shall be the government’s (the state) which takes care of its people according to their benefits. Therefore, according to Islamic teachings the state (ulil amri) is authorized to determine the requirements that must be fulfilled by its citizens who intend to practice polygamy, for the sake of public interest, and particularly to achieve the objective of a marriage.

 

With respect to the existence of the provisions regulating polygamy for Indonesian citizens whose religion permits such practice, the Constitutional Court considers the matter to be normal because pursuant to Article 2 Paragraph (1) of the Marriage Law a marriage is legal if it is in accordance with one’s religion and faith. On the contrary, it would not be normal if the Marriage Law regulates polygamy for those whose religions do not recognize the practice. Hence such different regulations do not constitute a form of discrimination the regulations are made not based on discrimination but rather in accordance with the needs, while discrimination refers to giving a different treatment with respect to two equal matters.

 

When approached after the hearing, M. Insa admitted to be disappointed, but was sure that his step would be continued by similar efforts by other parties sharing his opinion for judicial review of the Marriage Law. (Luthfi Widagdo Eddyono)

 

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