Selviana Nasruddin, Dachran Bustamin , Andi Darmawansya Tenriliweng
Faculty of Law, Universitas Muslim Indonesia
ΩCorrespondent Email : Selvianawh@gmail.com
This research aims to analyze the legal framework of Indonesian positive law regarding the criminal act of marriage falsification without the first wife's consent and evaluate the judicial considerations in Decision Number 374 K/Pid/2011. The research method used is normative juridical, utilizing statutory, comparative, and conceptual approaches. Data sources include primary legal materials such as legislation and court decisions, and secondary legal materials from literature and previous research. The findings indicate that marriage falsification without the first wife's consent violates Article 279 of the Indonesian Criminal Code (KUHP) and may also fall under Article 263 regarding document forgery. From an Islamic law perspective, polygamy is permitted but requires justice and the first wife's consent. Decision Number 374 K/Pid/2011 highlights judicial considerations regarding the criminal elements and the impact on victims. This study recommends harmonizing positive law and Islamic law to ensure better legal certainty and strengthening polygamy regulations to prevent similar violations in the future.
Keywords: Marriage Falsification; Positive Law; Islamic Law; Polygam
Marriage without permission wife First This No only violate provision administrative , but can also categorized as act criminal as set up in Article 279 paragraph (1) 1 of the Criminal Code ( KUHP) which threatens with criminal maximum five years imprisonment for whoever holds marriage whereas know that marriage or his marriages that have been There is become legitimate barrier For that . [1]
In the Islamic perspective , marriage own a very important and sacred position . The Qur'an says marriage as mitsaqan ghalidza ( solid agreement ) , as mentioned in Surah An-Nisa verse 21:
" How You will take it back , even though part You has mingle ( mix ) with others as husband and wife . And they ( your wives ) have take from You strong covenant ( mitsaqan ghalidza )."
In Islamic teachings , polygamy allowed with limitation maximum four wives , as Allah SWT says in Surah An-Nisa verse 3:
"And if you afraid no will can happen fair against ( the rights of ) orphan women ( when ) you marry her ), then get married the (other) women you please : two, three or four . Then if you afraid no will can happen fair , then ( marry ) one only , or the boys you have . That is so that is more close to no do "persecution ."
However ability polygamous in Islam no nature absolute , but accompanied by with very strict conditions that is must applicable fair towards the wives . This is confirmed in Surah An-Nisa verse 129:
"And you never - ever will can applicable fair among (your) wives , even though you really want do thus , because That don't You too tend ( to what you love ), so that You leave the others hanging ."
The existence of dualism arrangement between law positive Indonesia and Islamic law regarding marriage without permission wife First This cause various problem in practice . In one side , marriage second without permission wife First can considered legitimate religiously (Islamic) during fulfil pillars and conditions of marriage [2] However , on the other hand , the act of the can categorized as act criminal offences that can be threatened with sanctions criminal prison based on the Criminal Code.
Complexity problem This the more increase with the rise the practice of unregistered marriage without permission wife first . [3] Based on data from the Ministry of Religion, the figures marriage siri in Indonesia tends to increase every year . Phenomenon This No only raises legal problems regarding legal status marriage and children born , but also potential cause conflict social in public .
Reality case marriage without permission wife First can seen from various decision the court that has own strength law remain . As in Supreme Court Decision Number 374 K/Pid/2011 , where marriage second thing to do without permission wife No only impact on aspects criminal , but also causes problem regarding legal status marriage and rights civil the parties involved . Various case the show importance study comprehensive about act criminal marriage without permission wife First from perspective law positive Indonesia and Islamic law for give complete understanding to public as well as become reference for enforcer law in Handling case similar . [4]
Study This use type study legal normative , namely study law that relies on secondary data sources or study library , where the law conceptualized as a written norm in regulation legislation or as the rules that become guidelines behave human being who is considered appropriate . [5] Study This use approach statute approach, which is carried out with to examine all regulation relevant legislation with the problems being studied , such as Constitution Number 1 of 1974 concerning Marriage , Criminal Code ( KUHP ), and Compilation of Islamic Law. In addition , research this also uses approach comparative (comparative approach), namely with compare provision law positive Indonesia with Islamic law regarding marriage without permission wife First . Approach conceptual approach is also applied For to study views and doctrine evolving law in knowledge law related the issue being researched . The data collection process focused on materials law secondary consisting of from material primary law such as regulation legislation , decisions courts , and sources Islamic law , as well as material law secondary like books law , journal scientific , and opinion expert . Data collected through technique studies bibliography , namely search relevant literature , regulations , articles and journals with Topic research . Data analysis using technique analysis prescriptive-analytical with approach qualitative , where data is collected analyzed For give in -depth interpretation and solution to problem the law under study .
According to the Criminal Code (KUHP )
Arrangement act criminal forgery in marriage without permission wife First in a way clear set up in Article 279 and Article 280 of the Criminal Code. Article 279 of the Criminal Code states that someone who does marriage second without moreover formerly finalize marital status previously can charged sanctions five to five years of imprisonment seven years , especially If accompanied by element fraud like concealment of marital status or manipulation document . [6]
Article 280 of the Criminal Code complements with confirm that concealment of marital status can considered as forgery identity , with threat criminal maximum of five years . [7] In addition , Article 263 of the Criminal Code is also relevant in context forgery document , which regulates that making or use letter fake that causes loss for the other party is threatened with criminal prison six years . In practice , forgery document This often involves making fake marriage certificate or letter statement of marital status that is not in accordance with reality . Consequences from action This No only impact on legal status marriage , but also can cause problem law related inheritance , rights children , and not quite enough answer husband to wife first . [8 ] Therefore that , enforcement law to act criminal This need reinforced so as not to happen abuse law by parties who do not responsible answer .
According to Constitution Marriage Number 1 of 1974
Constitution Marriage Law No. 1 of 1974 confirms that principle monogamy is principle main in marriage in Indonesia (Article 3). Polygamy allowed with terms and conditions certain , including permission from wife first and agreement court (Article 4 and Article 5). [9]
In practice , many the husband who avoids condition This with do forgery document or identity , so that action the can categorized as act criminal . [10] Concealment of marital status through documents that are not legitimate result in loss big for wife first , well in a way social , economic , and emotional . [11] In addition , the Marriage Law also regulates that marriage only legitimate If recorded in the office recording civil or KUA (Article 2 paragraph 2). If the registration No done with right , then marriage can considered No legitimate in the eyes law . This is impact big for wife and children , especially in aspect inheritance and rights others . [12 ] Therefore that , strengthening regulation and socialization about importance recording a proper marriage is very much needed For prevent cases forgery document in marriage .
According to Islamic Law ( Compilation of Islamic Law/KHI)
In Islamic law , marriage is strong contract ( mitsaqan ) ghalidzan ), with objective build harmonious family . Polygamy allowed with limitation maximum four wife , but must fulfil terms and conditions tight , like justice to wife and children (Article 55 KHI). If the husband No capable applicable fair , then polygamy prohibited . [13]
KHI regulates that polygamy only can done with permission Religious Court (Article 56), and without permission said , marriage considered No legitimate in a way law (Article 56 paragraph 3). [14] Principle justice in Islam demands husband For truly fair , good in aspect economy , time , and love darling . If a husband polygamous with the way that is not legitimate according to Islamic law , then wedding the can considered No valid and invalid own consequence clear law . [ 15 ] Therefore that , even though Islam allows it polygamy , regulation strict still required For ensure that rights wife and children still protected . In addition , the community also needs get education related Islamic law and how practice correct polygamy so that it doesn't happen abuse law that can harm various party .
This case involving defendant Ki Agus Andri Rivano who committed marriage second without permission wife validity and use document false For to obtain permission married . The defendant ensnared with Article 279 paragraph (1) of the Criminal Code and in trial , the Public Prosecutor (JPU) demanded punishment One year prison .
Decision The South Jakarta District Court sentenced 10 months sentence with trial period One year . Decision This Then strengthened by the DKI Jakarta High Court and the Supreme Court in level cassation . The Supreme Court is of the opinion that decision previously has notice aspect justice and fulfillment elements act criminal .
Judge's considerations in case This based on facts that defendant has do forgery documents and hiding her marital status For to marry another woman . The judge considered that action This fulfil element fraud that can cause impact law for the injured party . In addition , the judge also considers impact psychological problems experienced by the wife First consequence action husband who doesn't transparent in his marriage . Therefore that , although the punishment imposed classified as light , verdict This still become precedent important in enforcement law related forgery in marriage .
Regulation existing law Already Enough clear in arrange forgery in marriage without permission wife First . The Criminal Code provides sanctions criminal , while the Marriage Law No. 1 of 1974 and the KHI provide limitation as well as legal mechanisms for polygamy . However , in the practice Still Lots case similar to what happened Because weakness supervision administration as well as low awareness law public .
Case Verdict Number 374 K/Pid/2011 shows that forgery identity in marriage considered as act criminal offences that can be ensnared with Article 279 of the Criminal Code. Although Thus , there are difference approach between law positive and related Islamic law polygamy . Therefore that , is needed harmonization law and strengthening supervision administrative For prevent the occurrence practice forgery in future marriage . In addition , it is necessary existence improvement role government in to educate public about importance recording legal marriage as well as consequence law from forgery document in marriage . With so , it is expected can created system more laws fair and more protection Good for all parties involved in institution marriage .
Based on results discussion about arrangement act criminal marriage without permission wife First , can concluded that the law in Indonesia has arrange with firm act criminal related forgery in marriage , especially through the Criminal Code and Law Marriage . Article 279 of the Criminal Code prohibits marriage second without permission wife First , and Article 263 of the Criminal Code regulates about forgery frequently used documents happen in practice In addition , the Law Number 1 of 1974 concerning Marriage confirm principle monogamy and establish condition strict For polygamy . Although law Already clear , practice forgery document still occurred , as reflected in Decision Supreme Court Number 374 K/Pid/2011. In the case said , the judge considered condition social and economic the defendant , although the verdict handed down considered No give effect enough deterrent , so that cause criticism to implementation lack of law firm in give justice for victims, especially wife First . In facing issue this , it is suggested that the law marriage in Indonesia is more tighten implementation principle monogamy and strengthening supervision regarding the licensing process polygamy . This is it is important that the practice forgery documents and violations law in marriage can minimized . Court must own more roles active in verify validity documents and the reasons behind application polygamy For ensure that rights wife First protected with well . In addition , judges also need to notice aspect justice for the victims, namely wife first and his family , in every decisions involving forgery document or marriage without permission . Enforcement more sanctions firm and giving effect deterrent to perpetrator will push awareness more laws good , and give protection more laws strong to rights Woman in marriage .
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