Judges’ Considerations in the Cancellation Decision of the Marriage Establishment (ITHBAT) of Polygamy (The Analysis of Supreme Court Decision No.351/K/Ag/2016)

Abstract

In Indonesia, polygamy is permissible as long as it is justified by religion and the rules of the marriage law. However, a husband who wants to have more than one wife can only be done if he fulfills various requirements decided by the Court. Based on the principle of “audi alteram partem”, the Supreme Court views that the consideration of the Jakarta Religious High Court towards the defendant's answers, evidence and witnesses submitted by the defendant is a right decision even though they are late and no trial is submitted. The Supreme Court argues that polygamy permission is a necessity. It aims to maintain the welfare of the parties bound to the marriage that have been and are still ongoing. The word "can" in Islamic Law Compilation (KHI) article 71A shows that the cancellation of marriage for a reason of polygamy without court permission is tentative (facultative). Whether or not the marriage is canceled must be submitted to the court and is very dependent on the assessment of the benefits of the wife/wives and children. The legal consequences of the stipulation of the marriage establishment (ithbat) based on the decision of the Religious Court and the refusal to cancel the marriage establishment (ithbat), the child of the second wife has inheritance rights from his father, including assets from his property with his first wife.