The Constitutionality of Polygamy in Indonesia: How Indonesian Constitutional Court Decision Number 12/PUU-V/2007 Interpreted Polygamy

Abstract

1. Insa is an Indonesian citizen intending to perform religious observance of polygamy. However, according to Law No. 1 the Year 1974 regarding Marriage (the Marriage Law), he does not qualify to practice polygamy. M. Insa then files a petition for the judicial review of the Marriage Law, particularly regarding the Articles regulating polygamy. As such, the Court considers the arguments presented by the Petitioner groundless and therefore the Petitioner’s petition is declared rejected. This study analyses the reasons of the Constitutional Court in defining constitutionality of polygamy in Indonesia. According to the Court, the conditions to practice polygamy are still required to guarantee the realisation of marriage purpose. The articles in the Marriage Law containing the reasons, conditions and procedures for polygamy are the efforts to guarantee the fulfilment of the rights of the wife and prospective wife in the context of realising the marriage purpose. Therefore, the intended articles can not be interpreted as nullifying the provision that allows the polygamous marriage. The provision included in the Marriage Law states that the principle of marriage is monogamy. Polygamy is allowed, provided that specific reasons, conditions and procedures are not contradictory to the teachings of Islam.