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The Constitutional Court decided to reject the application in the testing of Act No.1/1974 on Marriage filed by Halimah Agustina. "Petition is groundless legal argument," said Chairman of the Constitutional Court, Moh. Mahfud MD, when reading the ruling of the case number 38/PUU-IX/2011, Tuesday (27/3). Halimah is the former wife of Bambang Trihatmodjo, the son of former President Soeharto.

Provisions were tested in the Marriage Law is Article 39 paragraph (2), especially in his explanation of the letter f. This article reads: "To do a divorce there must be sufficient reason, that between husband and wife would not be able to live together as husband and wife.". While the explanation states, "The reasons that can be used as the basis for divorce are: ... f. between husband and wife continue to happen in turmoil and strife, and no hope of living in harmony in the household again."

Court concluded, so long phrase, "Between husband and wife continue to happen in turmoil and strife ..." it gives one a way out when a marriage is no longer giving the benefit of marriage is no longer in line with the intention of marriage as mentioned in Article 1 of Law Marriage and does not provide legal certainty and justice as stipulated in Article 28D paragraph (1) of the 1945 Constitution.

"Petitioners' argument is incorrect and untrue because of Article 28H paragraph (2) of the 1945 Constitution is a provision for affirmative action, while the position of husband and wife in marriage according to Law 1/1974 is balanced, so it does not require special treatment such affirmative action," Court said in its decision.

According to the Court, marriage in the Marriage Law has a legal dimension, the dimension of the inner life, the dimensions of social and religious dimensions. The dimension of the inner life of people, who in a marriage of love and compassion, is a very dynamic situation. In other words, the dimensions of life can be a 'honey' is a sweet and healthy, but can also be a 'poison' that is bad in a marriage relationship. "It can be 'pests' that constantly undermine love and love and turn it into hostility and hatred (al-wa al baghdha adawah`) "the Court said in its legal opinion.

Furthermore, the Court continued, when there is turmoil and strife continued between husband and wife can hardly be expected to be reunited. "In such circumstances it is considered to be in the marriage bond has been broken (syiqaq, broken marriage), although the bonds of birth, legally, is still there," said Court.

Under conditions of a marriage like that, rationally, said the Court, has no longer beneficial to both parties as well as for families. Even in certain cases can jeopardize the safety of each party and family. In that case, the law must provide a way out to avoid unwanted adverse circumstances. In this context, it is way out of marriage dissolution in the Marriage Law called the breakup of marriage when both parties are still alive, that she decided the marriage by divorce or by court order. "The court ruling states only that the real state of the marital relationship is," the Court warned.

Should be granted

In this decision, there is a dissenting opinion (dissenting opinion) of the Constitutional Justice M. Akil Mochtar. In essence, according to him, the Court should grant the petition and declared the Elucidation of Article 39 paragraph (2) letter f against the Marriage Law of the Constitution and no longer have binding legal force.

"The petition is granted then the regulations implementing the Act relating to marriage because of the reasons divorce disputes and quarrels continued, as provided for in Article 19 letter f and Article 22 paragraph (2) Government Regulation No. 9 of 1975 on the Implementation of Law No. 1 of 1974 on Marriage also be declared unconstitutional, "said Akil. "However, the granting of the petition does not abolish the institution syiqaq because it is based and regulated in a different Act ie the Religious Law."

According to Akil, the provision is contrary to the principles of the Marriage Law, the 'principle to make difficult divorce' to confirm the purpose of marriage is to form a happy family and the eternal, as mentioned in the General Explanation of the Marriage Law. He was of the view, that provision has made divorce and bad."The process of divorce seems to be very easy," he said.

In addition, according to Akil, the reason continuous turmoil and strife in the explanations of article being tested is not supported by the implementing regulations and legal instruments in support of civil law enforcement efforts within the scope of the General Court. "Limitations of the details of these rules are detrimental to the constitutional rights of Indonesian citizens who filed for divorce on grounds of disputes and quarrels continued through the General Court," he said. (Dodi / mh/Yazid.tr)

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