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All Journal Jurnal Al-Hakim : Jurnal Ilmiah Mahasiswa Studi Syariah, Hukum dan Filantropi
Zakiyuddin Abdul Adhim
Pengadilan Agama Soasio
Religion Law, Crime, Criminology & Criminal Justice Social Sciences

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Between Religious Validity and State Legality: The Criminalization of Unregistered Marriage and Polygamy in Indonesia Zakiyuddin Abdul Adhim; Muhammad Khoirul Anam; Ahmad Hasan Basri
Jurnal Al-Hakim: Jurnal Ilmiah Mahasiswa, Studi Syariah, Hukum dan Filantropi Vol. 8 No. 1 May 2026
Publisher : Fakultas Syariah, Universitas Islam Negeri Raden Mas Said Surakarta

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.22515/jurnalalhakim.v8i1.14644

Abstract

This article analyzes the shift in the regulation of marriage in Indonesia, from a civil-administrative legal regime to penal norms under the National Penal Code (Law No. 1 of 2023), specifically concerning the practices of nikah siri (unregistered marriage) and polygamy siri. Unlike prior studies that examined these issues in isolation, this article integrates an analysis of the construction of criminalization under Articles 401–404 and its implications for the harmonization of civil, Islamic, and criminal law. Employing a normative-descriptive method with statutory, conceptual, and historical approaches, this study draws on primary legal materials and court decisions analyzed through systematic and teleological interpretation. The analysis reveals that under the previous regime, the state regulated marriage primarily through civil and administrative instruments, with criminal law playing only a limited corrective role. The National Penal Code, however, expands the scope of legal protection by incorporating specific marriage-related conduct into penal norms, signifying a shift in rechtsbelang from individual toward public legal interests. This article asserts that such criminalization is not directed at religious practices per se, but rather at violations of public legal obligations that result in tangible harm. Consequently, these provisions must be interpreted restrictively within the framework of the ultima ratio principle and the protection of religious freedom, positioning criminal sanctions as instruments of legal protection rather than disguised criminalization of religious practice.
Co-Authors Ahmad Hasan Basri Muhammad Khoirul Anam