Understanding the Criminal Aspects of Unregistered Polygamy and Unregistered Marriage

Jakarta - One of the issues that has drawn public attention following the enactment of Law Number 1 of 2023 on the Criminal Code (KUHP) concerns marriage-related criminal offenses regulated under Articles 402 through 405.

Under Article 402 paragraph 1 letter a, those who practice polygamy without court approval face imprisonment of up to 4 years and 6 months or a Category IV fine. Additionally, under Article 404, those who enter into unregistered marriages (nikah siri) and fail to fulfill the obligation to report their marriage to the authorized official may be punished with a maximum Category II fine.

The criminalization of unregistered polygamy and unregistered marriage has drawn criticism for allegedly contradicting Islamic law. In the tradition of Islamic law (conventional fiqh), a husband intending to practice polygamy is not required to obtain court permission, nor is there any obligation to register the marriage.

Although not a requirement for a valid marriage under Islamic law, marriage registration (Article 2 paragraph 2 of Law No. 1/1974) is an administrative regulation that must be fulfilled as proof of a legally valid marriage in today’s society. Such proof of valid marriage serves as an important instrument for the state to provide legal identity certainty and legal protection for married couples and children born from the marriage.

The rights of women and children arising from marriage can be legally protected when valid proof of marriage exists. Therefore, marriage registration becomes a conditio sine qua non in realizing one of the objectives of sharia, namely hifdun nasl (preserving lineage), meaning that failure to fulfill the marriage registration obligation can be categorized as an unlawful act.

For a polygamous marriage to be registered, the husband must obtain polygamy permission from the religious court (Article 4 of Law No. 1/1974). Polygamy permission is an administrative regulation designed to protect wives from the arbitrary actions of husbands who wish to marry another woman without their wife’s consent. The dignity of the wife is legally protected as a legal subject in a marriage, not merely an object, and therefore her consent must be sought. Through this provision, the spousal relationship that is built is one of equal partnership, not a hierarchical power relationship in which the wife is subordinate to the husband.

If a husband conceals his marital status in order to marry another woman through official registration without court permission, that marriage can be annulled if the wife objects (Article 71 letter a of the Compilation of Islamic Law). The husband may also face imprisonment of up to 6 years or a maximum Category IV fine under Article 402 paragraph 2 of the Criminal Code.

The obligation to obtain polygamy permission from the court constitutes siasyah syar’iyah (legal policy) aimed at protecting the dignity of women in marriage and is consistent with the constitution (Article 28D paragraph 1 of the 1945 Constitution of the Republic of Indonesia).

Marriage falls within the domain of civil law, which governs relationships between individuals. However, no individual can separate themselves from their relationship with the state as a citizen. The freedom of every individual to enter into a marital relationship with another individual in the private sphere still requires state involvement in regulating the implementation of that relationship to provide legal protection, particularly for women and children.

It is within this framework that the marriage-related criminal provisions in the Criminal Code should be understood as responsive and progressive legal provisions aligned with the objectives of sharia.

Efforts to curb unregistered polygamy through civil law have been undertaken by the Supreme Court through the implementation of plenary session rulings issued in the form of Supreme Court Circulars (SEMA). Under SEMA No. 7/2012, a combined petition for marriage validation (itsbat nikah) of a second marriage without the first wife’s consent together with divorce cannot be validated unless polygamy permission has been obtained from the Religious Court. Validation of polygamous marriages based on unregistered marriages is also inadmissible under SEMA No. 3/2018. No property rights between spouses arise from marriages with second, third, or fourth wives conducted without court permission and without good faith—whether in the form of maintenance, marital property, or inheritance—under SEMA No. 2/2019.

However, these various civil provisions primarily emphasize legal protection for wives from registered marriages and do not effectively function to correct behavior or create a deterrent effect for men, who always benefit from unregistered polygamy and unregistered marriages. Meanwhile, women are always disadvantaged in unregistered marriages due to the uncertainty of their status as wives and the absence of legal protection for rights arising from the marriage.

The criminalization of unregistered polygamy and unregistered marriage is part of the state’s effort to provide legal certainty and protection for women and children. The existence of unregistered marriages has created a dualism in valid marriage law—marriages valid under religious law and marriages valid under state law—which affects the ambiguity in family law enforcement regarding property rights arising from marriage for wives and the protection of children’s rights.

Nevertheless, in criminal proceedings, consideration should be given to whether the person who entered into an unregistered marriage acted in good faith—meaning there was no element of intent or malice—but rather due to circumstances beyond their control, whether physical, geographical, or economic limitations in accessing marriage registration services from the Office of Religious Affairs (KUA). Those who enter unregistered marriages in good faith deserve legal protection because their actions cannot be categorized as unlawful. Furthermore, circumstances beyond their control may be considered as justifying grounds. Those who entered unregistered marriages in good faith may file for marriage validation (itsbat nikah) at the religious court, and based on the court’s ruling, the marriage can then be registered by the marriage registrar at the local KUA.