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Imanullah, Rijal
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Religion Arts Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences Other

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Poligami dalam Hukum Islam Indonesia (Analisis Terhadap Putusan Pengadilan Agama No. 915/ pdt.g/ 2014/ pa.bpp Tentang Izin Poligami) Imanullah, Rijal
Mazahib VOLUME 15, ISSUE 1, JUNE 2016
Publisher : IAIN Samarinda

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (560.495 KB) | DOI: 10.21093/mj.v15i1.607

Abstract

This article discusses the considerations of Balikpapan Religious Court judges in giving polygamy permits in case No. 915 / Pdt.G / 2014 / PA.Bpp. In this case the applicant sought permission to marry his partner that he had married earlier not in accordance to state law (Nikah Sirri) 2014. In 2003, the couple was blessed with a son. They then face legal problems to get his birth certificate; and this is one of the reasons the applicant apply for a polygamy permit. Although the application does not meet the provisions of the marriage law in Indonesia about the terms of polygamy (Article 4 (2) Marriage Law No. 1/1974), the judge in the case still gives permission to the applicant . Consideration of the judges are the permission is given because it has greater utility than to simply follow the provisions of the law of marriage: namely legalizing their Nikah Sirri and welfare of the (illegitimate) child. This case shows once again that Religious Court judges are not only glued in the provision of positive law in Indonesia but also delves living law in the community, including here the principles of sharia and fiqh. Keywords : Polygamy in Islam, religious court in Indonesia,
Unregistered Polygamy Validation: Isbat Nikah, Polygamy Permit, and Due Process of Law in Indonesian Religious Courts Alfitri, Alfitri; Imanullah, Rijal; Rahman, Aulia
Ulumuna Vol 28 No 1 (2024): June
Publisher : Universitas Islam Negeri Mataram

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20414/ujis.v28i1.639

Abstract

This article probes whether methods of validating unregistered polygamy in Indonesian Religious Courts have honored the due process of law. Judges have adopted two different methods in validating unregistered polygamy: first, by ordering concerned parties to apply for the issuance of a retroactive marriage certificate (isbat nikah), and second, by advising them to submit a polygamy permit application. Using the sociolegal approach in examining Ratio Legis and selected cases on unregistered polygamy validation across Indonesia, it finds that the existing methods have impacted protecting women’s and children’s rights and marriage law objectives. Opting for isbat nikah means perpetuating violations of the marriage law provisions and objectives, which restrict polygamy through court proceedings to be orderly administration and protect women’s and children’s rights. Meanwhile, requiring unregistered polygamists to remarry by applying for a polygamy permit could impact wives’ rights who are married without registration and their children’s. The 2018 Supreme Court’s Circular prohibiting the Religious Court from accepting applications for isbat nikah of unregistered polygamy shows its tendency to the formal application of the marriage law provisions. Even so, judges adopt the contentious isbat nikah to legalize unregistered polygamy, mainly when the parties involved accept their polygamy and live peacefully. This bottom-up approach arguably better meets the principles of fairness because all legal rights owed to concerned parties are respected.
Co-Authors Alfitri Alfitri Aulia Rahman