Sekayu Religious Court Decision No. 59 of 2015: Polygamy Dispensation Granted

The parties were married on 2 February 1994 and had two children. They had lived harmoniously as husband and wife for 21 years, however, in 2000, the respondent fell ill. This had compromised her ability to be physically intimate with the applicant for approximately the past four years. Concerned that he would commit adultery (zina), in December 2014, the applicant requested the respondent's permission to marry again. The respondent granted him permission. The woman the applicant proposed to marry was fit and proper in that she did not breach any shari'a or civil legislative requirements: she was not a blood relative of the applicant or respondent, nor had they shared a wet nurse; she was a divorcee and not engaged to another man; and her marriage guardian was prepared to marry them. The applicant also told the court that he believed he was capable of having more than one wife as his monthly salary was IDR 5 million, he had promised to be fair to both wives as well as his children, and the respondent had prepared a written statement in support of the applicant. The applicant also told the court that he and the respondent were prepared to separate their joint assets if the applicant were granted judicial permission to marry again.

The court counselled the applicant on the consequences and risks of polygamy, advising him not to go ahead with the second marriage. Its advice, however, went unheeded. With this in mind, the court cited verse 3 of Surat Annisa from the Qur'an, which does not prohibit polygamy but places the onus on the man to prove he will treat both wives fairly, as enunciated in art 55(2) of the Compilation of Islamic Laws. The court was of the opinion that the applicant would treat his wives and children fairly, and, as required by art 5(1.b) of Law No. 1 of 1974 on Marriage, and art 58(1.b) of the Compilation of Islamic Laws, could financially afford to care for them. After the applicant signed a statement attesting to do so, meeting the requirements of art 5(1)(a), (b) and (c) of Law No. 1 of 1974, as well as art 41(b) and (c) of Government Regulation No. 9 of 1975. The court acceded to the applicant's request and stipulated the items acquired by the parties as a married couple as their joint assets.

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