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Section 5. Religious studies
https://doi.org/10.29013/ESR-20-11.12-31-37
Maswandi,
Research Scholar, Ph. D. Program in Islamic Law Faculty of Islamic Law, Universitas Islam Negeri Sumatera Utara
E-mail: maswandi128@gmail.com
Asmuni,
Professor in Islamic Law, Department of Islamic Law Faculty of Islamic Law, Universitas Islam Negeri Sumatera Utara
E-mail: asmuni.tarmun7@gmail.com Pagar Hasibuan,
Professor in Islamic Law, Department of Islamic Law Faculty of Islamic Law, Universitas Islam Negeri Sumatera Utara
E-mail: prof.pagar@yahoo.com
PENAL CODE ENFORCEMENT AGAINST POLYANDROUS SPOUSE AMONG MUSLIMS
Abstract. This paper deals with positive criminal law enforcement that can be implemented when an act can harm another person; therefore, the nature of positive criminal penalties is repressive (retaliatory), so the punishment enforced with various threats (low or high punishment) is in accordance with the losses suffered. Conversely, Islamic law is both repressive (retaliatory) and preventive (prevention) that criminal acts do not occur so that the punishment enforced is of course relatively high. Muslim polyandry actors can be punished with the death penalty, beatings a hundred times or imprisonment for a year as stipulated in the Qur'an and Hadith, whereas in positive criminal law polyandry acts are considered adultery which is punishable only by nine months in prison. Thus, they have never been tried criminally, even though they can actually be threatened with a sentence of 7 years in prison as stipulated in Article 279 paragraph 2 of the Criminal Code.
Keywords: Criminal Law Enforcement, Muslim Poliandry Perpetrators.
Introduction earth is created in pairs as the words ofAllah in Surah
Marriage (munakahat in Arabic) is a decree of Az-Zuriyat verse 49, which states "And We create Allah (sunnatullah) on man and woman [1]; mar- everything in pairs so that you will remember (the riage is not just to fulfill the legitimate biological in- greatness of Allah)". Apart from that in the Qur'an, terests (needs) between the two of them, but also a marriage is also categorized as the sunnah of the provision that every creature on the surface of this Prophet Muhammad as his saying states:
"Getting married is my sunnah. Who doesn't practice my sunnah, then he doesn't follow my path. Get married, because I really boast ofyou over other people, who has wealth, then marry, and who is not able to do so, let him fast, because fasting is a shield for him" (Hadith Narrated by Ibn Majah).
Even though marriage is a legal act from the perspective of the Qur'an and Sunnah, there are some people who do not follow the guidelines of marriage; one of these acts is polyandry marriage. A case of polyandry marriage has ever occurred in Pematang Siantar, North Sumatra Province (see Decision of the Pematang Siantar Religious Court in case number: 141 / Pdt.G / 2011 / PA.Pst, dated September 13, 2011, between Taufan Lesmana Putra Bin Sumantri as the Plaintiff who was a son of the Defendant II, with the Head of the Office of Religious Affairs in Dolok Silau District, Simalungun Regency, North Sumatra Province as the Defendant I, with Nurhaida Binti M. Lekar as the Defendant II and with Ahmad Azman Halim Bin Abd. Gani as the Defendant III.
The case began when the Plaintiff (who was also the son of the Defendant II) filed a lawsuit for marriage annulment to the Pematang Siantar Religious Court on August 10, 2011 on the grounds that the Defendant II (Nurhaida Binti M. Lekar) was the legal wife of Sumantri Bin Temin Kertorejo, who died on May 30, 2010. Before the husband of the Defendant II died, the Defendant II was married secretly with the Defendant III (Ahmad Azman Halim Bin Abdul Gani) on May 3, 2010 in Kisaran. The marriage of the Defendants II and III could be carried out with the help of the Defendant I (Head Office of KUA Dolok Silau District, Simalungun) who also acted the guardian judge of the Defendant II. Both the Defendants II and III did not have a Marriage Certificate, meaning that the Defendant I did not issue a Marriage Certificate for the Defendants II and III because the Defendant I did not have documents to complete administrative requirements.
A year later, on June 3, 2011, the Defendant I issued a Marriage Certificate with number: 058/04
/ VI / 2011 to the Defendants II and III and this issuance was a follow-up to the marriage dated May 03, 2010. The Marriage Certificate was apparently not equipped with documents for completeness of administrative requirements. Thus, the Marriage Certificate issued on June 3, 2011 was evidence of polyandry marriage.
The problems in this paper are: how is the enforcement of criminal law against Muslim polyandry actors?; is it sufficient for a polyandry actor to be punished by the law of 9 (nine) months in prison (based on Article 284 of the Criminal Code) because the perpetrator's act is only considered an act of adultery or is subject to 7 years in prison (based on Article 279 paragraph 2 of the Criminal Code) because the offender's act is categorized as an obstacle in marriage?
Polygamy marriage and justice in Islam
There are some in the Muslim community of the view that sexual relations are not much different from the need for food and drink. If Muslims are given the freedom to choose food and drink, then they are also given the same rights in sexual relations. The analogy of freedom in choosing food and drink with freedom in sexual relations is certainly unacceptable from the divine dimension because this dimension does set different rules regarding the analogy. Sexual relations that are carried out without being preceded by Islamic marriage are seen as deviant social behavior and the perpetrators can be subject to severe punishment [2].
In order for a Muslim not to have sexual intercourse freely, Islam regulates the procedure for polygamy in that a Muslim may marry more than one Muslimah. The concept of marriage between one man and more than one woman is called polygyny, but a woman who has several husbands is called polyandry; thus, polygyny and polyandry are called polygamy in a narrow sense. From a practical point ofview, there is no difference between polygamy and polyandry or polygamy and polygyny; polyandry arises because there is another husband apart from the first husband, and polygyny arises because there is another wife apart from the first
wife. Thus, polyandry and polygamy have similarities in terms ofpractice. In the view of Islamic law, polyandry is an act of haram but polygamy is not forbidden.
Literally the word "polygamy" comes from Greek and is formed from the words polus 'many' and gamein 'married'. The question is whether the husband has many wives or wive has many husbands? In Arabic, "polygamy" is called ta'did al-zawjah 'the number of partners.' In Islam, polygamy is allowed (mubah) and in Surah An-Nisa' verse 3, the word "fankihu" is the amr which means 'is allowed but not be obligatory.' In this context, the principle of ushul fiqih is al-asl fi al-amr al-ibahah hatta yadula dalilu 'ala al-tahrim 'the origin of something is "allowed", unless there are arguments that forbid it.'
Polygamy can occur for a number of reasons [3]:
a. There are reproductive problems, for example infertility.
b. A wife does not act as a wife, for example, she cannot carry out her obligations as a wife.
c. Husbands have great sexual needs (hypersexual) so that they need services / channeling of more than one wife.
d. There are more women than men.
e. The wife asked her husband to practice polygamy.
In the history of human civilization, polygamy did not originate from Islam but was practiced by various nations in Asia, Europe, Africa and America long before the arrival of Islam. In Arabia, in the era of ignorance (jahilliyah), adult men (baligh) tried in various ways to marry adult women through wealth and / or power. The Roman Empire stipulated that its male citizen had only one wife, while the kings and nobles had multiple concubines.
Hakim (ibid) argues that in Islamic sharia, it is recommended that a man only has one wife and the suggestion is that the household is in the perspective of sakinah, mawaddah, and warahmah and this perspective is certainly difficult to realize if men have more than one wives. Having a fair attitude is an absolute requirement if a man wants to do polygamy as
mentioned in the Words ofAllah in the Qur'an Surah An-Nisa' verse 3, which means:
"Then ifyou are confused about not being able to act fairly (among your wives), then (marry) a single, or (use) the female servants you have. That is closer (to prevent) in order you do not do injustice ".
The Words clearly explain that husbands have a fair attitude when they want to practice polygamy. If they are afraid that they will not be able to do justice ifthey have up to four wives, then only three wives are sufficient. Even ifthey can not afford it, just two wives are enough. Also, if two wives are still not sure they can do justice, it is sufficient to marry only one wife.
Mufassirin (interpretors) have the opinion that being fair is obligatory. Justice that is meant here is not only fair to his wives, but also means to do justice absolutely (kaffah). So the meaning of "fair" for a husband absolutely includes [4]:
a. fair to himself.
b. fair among the wives.
c. fair in providing a living.
d. fair in providing shelter.
e. fair in giving time in rotation.
f. fair in providing protection, care and affection for children.
The above concept is very difficult for a husband to fulfill; justice in different matters should give a feeling of love / affection to wives. Justice in affection relating to the heart is a matter beyond human capacity. This is in line with the Words ofAllah in the Surah An-Nisa' verse 129 which states:
"And you will never be able to do justice among your wives even if you really (intend to do so); therefore, do not tend to be overly (biased towards the wife you love) so that you let other wives like hanging objects (in the sky)."
Siti 'Aisyah (r.a.) explained that the Messenger ofAllah often acted fairly regarding the distribution among his wives and Rassullah prayed: "O Allah, this is my ability to share what is in mine. O Allah, do not be scold me for sharing what is mine and what is mine and what is not mine".
Nasuha [5] states that a fair attitude to polygamy is "fair in material matters, fair in dividing time, fair in distributing income such as clothing, food, and shelter, and fair in how to treat the desires of the inner needs of their wives." However, spiritual justice is not required by Islamic law, because spiritual problems are beyond human ability. Implicitly, polygamy is not allowed to man, so what about polyandry?
Polyandry in Islam
If polygamy is permitted with certain conditions, but this is not with polyandry which, in an Islamic perspective, is a forbidden act as mentioned in the Al-Qur'an Surah An-Nisa' verse 24: "and (forbidden too you marry) a woman who has a husband (al-muhsanat), except for the slaves you have" [6]. A woman who is already married and then marries another man while the woman is still in the bond of marriage, then the woman's acts are called polyandry marriage. The word Al-Muhsanaat is intended as a prevention (Al-Man'u) for married women so that they maintain their chastity and honor [7].
Because polyandry is not justified in the Islamic law and is considered haram by law, and if such a marriage continues then the marriage is categorized as adultery. Such an adultery is considered an act of jarimah (a an act of crime that is severely punished), and this view is agreed by many scholars. This model of adultery also applies to ghairu muhsan (unmarried) or muhsan (married) people even though the act is done on a voluntary (consensual) basis [8]. Musfir al-Jahrani (1997) has discussed at length about children from polyandry marriage [9] (see also [10].
A man is burdened with the obligation to earn a living because of his physical strength, but women are not obliged to work [11]. An understanding of the differences in body structure between women and men is the basis for understanding why Islam gives men the right to marry more than one (polygamy) while women do not. Islam determines everything with care and detail regarding women's issues in a form that is in line with their nature as a woman. Rasulullah Muhammad said which means "Whoever
is a woman who is married by two guardians, then (a legal marriage) that woman is for (the guardian) is the first of the two" (Hadith Narrated by Ahmad). Polyandry marriage does not bring any good to a wife who has multiple husbands, so Islam does not justify it and even forbids it.
Enforcement of Positive Criminal Law Against Muslim Polyandry Offenders
Criminal law in Indonesia is a legacy of Dutch colonialism which was ratified by Law No. 1 of 1946 with several changes to the Criminal Code (KUHP) [12; 13]. The Criminal Code is a law developed by the Indonesian people, after Indonesia's independence in 1945 and applies to Indonesian residents [14]. Polyandry acts are clearly prohibited based on both Islamic law and positive criminal law as stipulated in Article 284 of the Criminal Code.
Article 284 of the Criminal Code relating to adultery states:
A. The threat of imprisonment up to nine months
to:
1 a. A man who is married and commits mukah (overspel in Dutch) even though he knows the Article 27 of Burgelijke Wetbook (BW) applies to him;
b. A woman who has married and is doing mukah.
2 a. A man who supports the act of mukah, even though he knows that the perpetrator of the mukah is married.
b. A woman who is already married and supports the act of mukah, even though she knows that the perpetrator is married and that Article 27 BW applies to her.
B. There are no prosecutions but complaints by husbands / wives who are tainted, and if they are put into effect of the Article 27 BW of the Criminal Code, within three months they may be followed by requests for divorce or a change in table or bed for that reason.
C. Article 72, article 73, article 75 of the Criminal Code do not apply to this complaint
D. Complaints can be withdrawn as long as the hearing for the trial hearing has not yet started.
E. If husband and wife are enforced Article 27 BW, complaints are not heeded as long as the marriage has not been decided because of divorce or before the decision stating separation of table or bed becomes a decision.
Article 284 shows that prosecution of adultery can only be carried out on complaints from one of the spouses or one of the partners feels contaminated by the act. Therefore, if all of them are silent, and no one feels defiled or does not feel harmed, they are considered to be doing it voluntarily and of course the perpetrators cannot be punished. Positive law considers a case of adultery as a complaint offense, meaning that prosecution is only carried out when there is a complaint from a party who feels aggrieved. The complaint can still be withdrawn as long as it has not been tried.
Polyandry offenders are not only suspected of committing adultery, they are also reasonably suspected of committing other criminal acts, such as crimes against the position of citizens with a 7 year sentence as stipulated in Article 279 paragraph 2 of the Criminal Code and Article 280 of the Criminal Code with the threat of a sentence of 5 years imprisonment when for polyandry marriage is proposed to cancel the marriage to the Religious Court and the boundaries are cut by the Religious Court, this is because the perpetrator of polyandry can be suspected ofhiding their husband's status from other men. Falsifying documents carries a sentence of 6 years in prison as stipulated in Article 263 of the Criminal Code, because polyandry actors are suspected of using a fake ID card or fake divorce certificate or fake death certificate and so on. Polyandry actors also commit fraud with the threat of four years imprisonment as regulated in Article 378 of the Criminal Code because the polyandry perpetrator provides information about her status as a widow for a long time. In addition, polyandry marriages do not rule out the involvement of state officials who know that there are obstacles to the marriage but continue to carry out the marriage and they can be threatened
with seven years in prison as stipulated in Article 436 of the Criminal Code.
Based on Articles 279, 280, 284, 263, and 378 of the Criminal Code for the Case of the Decision ofthe Pematang Siantar Religious Court No. 141 / Pdt.G / 2011 / PA.PSt, polyandry perpetrators (women) can be punished under Article 279 paragraph 2 Jo. Article 280 paragraph 1 of the Criminal Code. Article 279 paragraph 2 of the Criminal Code is aimed at polyandry actors who hide their previous marriage and there is still a legal bond; Article 279 paragraph 2 of the Criminal Code which reads as follows:
"Whoever holds a marriage knowing that an existing marriage is a legal barrier to it, then hides from the other party that her existing marriage is a legal barrier to remarry."
The article above can be interpreted into two elements as follows:
1. The subjective element of "Whoever"
This "whoever" element is related to the existence of a person as a legal subject where he can be held accountable because he does have the ability to assume responsibility before the law. To fulfill the "whoever" element, a person must meet legal skills both in criminal law and in civil law. Polyandry actors in the case of the Pematang Siantar Religious Court Decision No. 141 / Pdt.G / 2011 / PA.PSt named Nurhaida Binti M. Lekar. She is a 51 year old woman, has five children and still has a legal marriage bond with another man. Besides, the polyandry actor is also not in a crazy state, so that the person concerned is not worthy of being "forgiven" but she must be held accountable because she has fulfilled the element of "whoever" is a polyandry actor.
2. The objective elements of "holding a marriage", "knowing the existing marriage", "the existence of a legal barrier" and "hiding the existing marriage".
a. Having a marriage
"Having a marriage" refers to a marriage that is carried out in a manner or procedure that is regulated in both legal provisions and community customs. According to the provisions in the Islamic Law Compi-
lation (KM), a marriage is considered valid if it fulfills five parties, namely the presence of a prospective husband, a prospective wife, a marriage guardian, two witnesses and a Kabul consent (ijab kabul). All parties have been present in the case of the Pematang Siantar Religious Court Decision No. 141 / Pdt.G / 2011 / PA.PSt where the polyandry actor is married to a man named Ahmad Azman Halim Bin Abd. Gani and her marriage guardian, the Head of KUA Dolok Silau District, Simalungun. The wedding was attended by two witnesses namely Muhammad Arifin Marpaung and Wagiman and the Ijab Kabul was carried out by the prospective groom in the presence of the Wali Nikah, in this case the Head of the KUA. Thus, "having a marriage" here is considered valid because all the elements have been fulfilled.
b. Knowing the existing marriage
This element means that before getting married to another man, the polyandry actor is aware that she is still married, as in the case of the Pematang Siantar Religious Court Decision No. 141 / Pdt.G / 2011 / PA.PSt where she married another man on May 3, 2010 while her first legal husband was sick and died on May 30, 2010. Thus, the polyandry actor knows that she is still married her first husband.
c. There exists a legal barrier
This element means that the polyandry actor has a legal husband and there has been no divorce between the two, whether living divorce through the decision of the Religious Court, or divorce as evidenced by the existence of a Death Certificate from the competent authority, so that the existence ofher husband becomes a barrier for her to marry another man. This is what is called the prohibition of marriage as stipulated in Article 40 letter a of the KHI (Compilation of Islamic Law).
d. Concealing the existing marriage
This element means that there are hidden attempts by polyandry actors against their new partners and also against officials who process the issuance of the Marriage Certificate. The issuance of Marriage Deed No. 058/04 / VI / 2011, dated 3 June
2011 is evidence that polyandry actors hide their status with their new partners and also with officials so that marriage certificates can be issued.
Apart from the application of Article 279 paragraph 2 of the Criminal Code in the case of the Pematang Siantar Religious Court's decision, polyandry actor is also subject to Article 280 of the Criminal Code which cannot be separated from Article 279 paragraph 2 of the Criminal Code. Article 280 of the Criminal Code states:
"Anyone who gets married deliberately concealing to the other party that there is a legal obstacle for her to marry, is sentenced to a maximum imprisonment of 5 years, if the marriage is canceled on the basis of that obstacle".
Article 280 of the Criminal Code has the same elements as Article 279 paragraph 2 of the Criminal Code, it's just that Article 280 of the Criminal Code. Polyandry marriage as in the case of the Pematang Siantar Religious Court Decision No. 141 / Pdt.G / 2011 / PA.PSt has been canceled through the Pematang Siantar Religious Court. Accordingly, the issuance of Marriage Deed No. 058/04 / VI / 2011, dated 3 June 2011 was also automatically canceled. Thus, law enforcement against polyandry actors is based on Article 279 paragraph 2 Jo. Article 280 of the Criminal Code is very precise and sufficiently grounded.
Conclusions
The crime of polyandry marriage is included in the civil sphere in the Religious Court so that polyandry actors are very rarely subject to the articles discussed above. Because the Religious Court itself is one of the courts under the Supreme Court which has the authority to handle civil matters, various cases of polyandry marriage cannot be prosecuted by the Religious Courts criminally and this is one of the weaknesses of the Religious Courts. In fact, the Religious Courts have the authority to handle criminal matters so that crimes of polyandry marriage can be tried in accordance with Article 279 paragraph 2 Jo. Article 280 of the Criminal Code.
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