Indonesian Supreme Court Decision No. 254 of 2014: Irrevocable Divorce Granted

The parties were married on 18 November 2005 and had two children (born 2006 and 2007). The cassation respondent had submitted that the parties were not suitable from the beginning and that they had quarrelled regularly because:

  1. the cassation applicant would often return home very late without reason, even during her pregnancy with the parties’ first child, a time when the cassation respondent most needed support from the cassation applicant;
  2. the cassation applicant seldom provided financial support, and what he did provide was insignificant considering his salary as a member of council (anggota dewan);
  3. when living with the cassation applicant in the cassation applicant’s parents’ home, the cassation respondent felt unsafe because she was often left alone with the cassation applicant’s brothers;
  4. when the cassation respondent raised the issue of financially supporting the marriage, the cassation applicant would hit and verbally abuse her;
  5. when the cassation respondent finally left the cassation applicant and lived with her parents, when she tried to return to live with the cassation applicant, the fighting would reoccur, with the cassation applicant often intoxicated;
  6. the cassation applicant often slandered the cassation respondent’s family.

The physical abuse continued and, on 29 November 2008, the cassation applicant attended the cassation respondent's place of work, where he hit and kicked the cassation respondent, resulting in her being hospitalised with an injury and bruising to her leg. The level of abuse peaked on 24 October 2009, when the cassation applicant struck the cassation respondent in the head several times. Fearing for her welfare and that of the children, the cassation respondent locked herself and the parties' children in a bedroom and escaped out a window, fleeing for her parents’ home. The cassation respondent then attempted to file a report with the local police, but subsequently withdrew it because, as a member of council (anggota dewan), he was a public figure. On 4 November 2009, the cassation respondent eventually attempted to file for divorce in the Semarang Religious Court. During the process, however, the cassation applicant made amends and declared his love for the cassation respondent. The cassation respondent subsequently withdrew her application and the parties attempted to reconcile. On 23 April 2011, the parties had an argument and the cassation applicant declared that he wanted to divorce the cassation respondent and focus on his career in public office. The cassation respondent returned to the cassation respondent’s parents’ home but the divorce was not properly concluded. On 24 November 2011, the cassation applicant was arrested by the Corruption Eradication Commission (Komisi Pemberantasan Korupsi) and reported in the mass media. The cassation respondent alleged that the cassation applicant's conduct had caused her and their children psychological damage and distress, and that the marriage was no longer tenable.

The cassation respondent, in the first instance, had requested that the local religious court terminate the marriage and grant her custody of the children, as well as to order the cassation applicant to pay court costs. The lower court (830/Pdt.G/2012/PA.Smg), pursuant to art 39(f) of Law No. 1 of 1974 on Marriage, and art 19(f) of Government Regulation No. 9 of 1975, in conjunction with art 116(f) of the Compilation of Islamic Laws, granted the cassation respondent an irrevocable divorce (talak satu ba’in sughra) on the grounds of ongoing conflict, and custody over the children with visiting rights to the cassation applicant. The lower court, however, ordered the cassation respondent to pay court costs (IDR 491,000).

The cassation applicant lodged an appeal with the Semarang High Religious Court. The Semarang High Religious Court (091/Pdt.G/2013/PTA.Smg) upheld the lower court's judgment and ordered the cassation applicant to pay court costs (IDR 150,000).

On 2 January 2014, the cassation applicant submitted a request for cassation to the Supreme Court on the grounds that the Semarang High Religious Court had not applied the law properly, that there were inadequacies and contradictions in the witness statements, that the cassation respondent was having an extra-marital affair with another man, that the children needed a father figure, and that it was his responsibility to be head of the household. The cassation applicant also submitted to the court that he was concerned the cassation respondent was not fit to have custody of the children.

Pursuant to art 30 of Law No. 14 of 1985 on the Supreme Court, as amended by Law No. 5 of 2004 and Law No. 3 of 2009, the court upheld the decision of the Semarang High Religious Court, dismissed the cassation applicant’s reasons for cassation, and ordered him to pay court costs (IDR 500,000).

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