Jantho Shari'a Court Decision No. 112 of 2015: Irrevocable Divorce Granted

The parties were married on 15 November 2000 and had four children. At the time of the proceeding, the defendant was serving an eight-month prison sentence for having beaten the plaintiff on 25 October 2014. The plaintiff submitted that entering the third year of their marriage, the parties had begun to quarrel regularly. This was due to:

  1. a difference of opinion over domestic matters;
  2. the defendant's insistence on using profane language and physically assaulting the plaintiff when they would argue, resulting in the plaintiff having to see a psychologist; and
  3. the defendant having carried on an extra-marital affair with another woman, to whom he had also provided financial assistance.

The parties had been separated, as a result, since November 2014. The plaintiff, therefore, requested that the court grant her an irrevocable divorce (talak satu ba'in sughra), and that it order the defendant to provide her with maintenance back-payments.

The court found that the marriage could no longer fulfil the purposes of marriage as envisaged in art 1 of Law No. 1 of 1974 on Marriage, and art 3 of the Compilation of Islamic Laws. It was, therefore, satisfied that the plaintiff had met the evidentiary burden contained in art 39(2) of Law No. 1 of 1974, and, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, acceded to the plaintiff's request for an irrevocable divorce (talak satu ba'in sughra) on the grounds of ongoing conflict.

The court also cited fiqh (Islamic jurisprudence) from Kitab Al Muhadzdzab juz II, page 164, and Kitab l'anatut Thalibin, page 85, both of which state that a husband is to provide maintenance back-payments to his wife in the event he had neglected to provide for her and their children for a period. It distinguished this fiqh, however, on the grounds that the parties had been separated for that time. In regards to the parties' four children, the court ordered that the two children under the age of 12 (belum mumayyiz) remain in the custody of the plaintiff. Accordingly, it ordered the defendant to pay to the plaintiff at least IDR 800,000 per month until the children reach the age of 21.

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