INTRODUCTION
Marriage is a
form of legal effort in the relationship between men and women which aims to
form a sakinah, mawaddah, wa rahmah family Marriage law number 1 of 1974 Article 2 Paragraph 1
states that "Marriage is legal,
if it is carried out according to the laws of their respective religions and
beliefs.� (Indonesia, 2004) in the article it can be
interpreted that a marriage is legal if it has been married according to their
respective religions and beliefs, the article can also be interpreted into a
situation which because it has a very broad meaning including the occurrence of
sirri marriages or underhanded marriages caused by
because he is still under 19 years old, polygamy, elderly marriage and various other
reasons as well as misyar marriage, namely marriage in an unusual
manner which exists in several places in West Java
The principle
of marriage is polygamy until the arrival of Islamic law by giving restrictions in Polygamy is the marriage
bond of a man marrying more than one woman up to a maximum of four (Umar, 2014), in the Qur'an
explained in Surah An-Nisa verse 3. And if you are afraid that you will not be
able to do justice to (the rights of) orphaned women (if you marry them), then
marry (other) women that you like: two, three or four. Then if you are afraid
that you will not be able to do justice, then (marry) only one or the slaves
you have. that is closer to not doing wrong"(Surah An-Nisaa: 3). When Islam came, polygamy had become a custom
and habit until the arrival of Islam through the Prophet Muhammad gave a
radical change according to that verse, polygamy from infinity to a maximum of
four
In the verse it
is contained that God gives a choice if he cannot do justice then one is
enough, legally positive, namely the Marriage Law article 3 paragraph (2)
article 4 and article 5, which contains licensing and requirements polygamy
whose case is decided by the religious court.
Marriage and
polygamy are regulated by law no. 1 of 1974 article I. paragraph (2) article 3
article 4 and article 5, from data on cases of marriage, divorce and polygamy
reported by the West Java religious courts in 18 regencies and 9 cities From
official data statistics on West Java religious court decisions for 5 years
from 2018 to 2022 shows an alarming comparison between marriage and divorce
where divorce annually is 10 times the number of marriages (Statistics, 2022).
From the number
of divorces that occur, there is a pattern that shows the power of women being
more dominant, this is indicated by the number of divorce cases which are
higher than divorce divorces with a ratio of more than 70% or widows who will
cause various social and economic problems in the community including the
occurrence of polygamy. In the decisions of religious courts dealing with
polygamy cases, there is no increase and even tends to decrease compared to the
increase in divorce cases
The tendency
for marital status in West Java will be a spike in single status either widows
or widowers because of the significant comparison between marriage and divorce
so that it will cause population problems , social and economic conditions,
which will result in a population recession.
The current
condition with the high rate of divorce compared to divorce divorces shows a
phenomenon that positions women very much dominate in the occurrence of
divorce, while in the Shari'a the wife asks for
divorce is already very hated, let alone suing for divorce, psychologically it
is already moral degradation of men as husbands results in high rates of
depression and divorce victims in marginalized men and it is possible that in
the end the population of women will be higher and women will n looking for a
partner more so that a man who is successful and established will actually be
his choice. While polygamy is not easy, in positive law it must meet strict
requirements and heavy licensing while in the Shari'a
polygamy is allowed with one condition, namely fairness.
Polygamy within
5 years of cases in religious courts has no progress and even tends to be very
little compared to the events of marriage and divorce, as if polygamy is a big
problem in family law and must be suppressed with the greatest severity in our
positive law and in view of a serious crime equated with criminal law. Hidayat (2018) show that polygamy is needed by men for
various reasons and is religiously allowed. If this condition continues, it
will result in a high number of underhanded polygamists so that it will contribute to the reason for
increasing the level of divorce due to being an extramarital affair and
polygamy is considered a crime.
The practice of
polygamy in the community, underhand marriage is a problem. which is very
urgent so that the author needs to examine the factors that cause underhand
polygamy, dig in depth about the motives of the perpetrators of polygamy and
their views according to Maqoshid sharia.
based on rational argumentation, namely considering the maslahah
and mafsadah it causes. Whoever views the maslahah aspect, will tend to allow it as according to the
opinion of the classical scholars, while those who view the mafsadah
aspect will choose to forbid the opinion of some contemporary scholars.
Meanwhile, fuqaha' who are doubtful about the comparison of maslahah
and mafsadah choose to suspend their opinion (tawaqquf) This study
examines and considers according to maqoshid sharia,
namely the aspects of benefit and harm.
The author seeks to reconstruct the condition of the existence of
polygamy in positive law/ legislation and in the compilation of Islamic law and
its relevance to Maqoshid sharia The urgency in reconstructing
the polygamy law is to provide legal certainty and justice for all people
without exception and can solve problems in accordance with Maqoshid sharia.
More specifically, the problem that becomes urgent in polygamy is
regarding the article on the permit for polygamy through the decision of the
Religious Court. The emergence of problems -
problems include:
1)
Polygamous
perpetrators prefer to do it secretly which in the end the second wife tries to
get an illegal marriage certificate and this is a problem in every area and
becomes a criminal problem
2)
The number of
wife lawsuits, especially due to husbands who are bankrupt or economically
established wives, this has an impact on the high number of well-established
widows and widowers who are economically disadvantaged, especially because
there are many regulations that strengthen the role of women such as the Law on
Sexual Violence Crimes �Gender equality and become a problem economics globally
3)
Polygamy causes
problems including unwanted implications and tarnishing the noble image of
polygamous marriages which is the basis of public opinion that views
polygamy as incompatible with human rights Even though polygamous couples who follow the
regulations The determination of marriage according to
material and formal law does not encounter problems as faced by unhealthy
polygamous couples. Their households are harmonious and happy as well as
monogamous married couples
METHOD
The research used a qualitative method, which is to
describe carefully objectively and systematically compile what is in the field
with an action research approach by examining a particular group that the
author examines as ethnicity which is the object of research and the author
himself is involved in the ethnicity being studied. This research uses field
data (Empirical Research), namely by collecting data from books, journals and
laws as primary data taken and data taken from the Subang district religious
court, KUA and other officers such as lebe and data
taken of the perpetrators of polygamy as an object of research (ethnic) which
the author examines. Data Analysis The research that the author uses is a
comparative analysis method, which is comparing objectively with objects and
systematically compiling what is in the field by examining a certain group that
the author examines as ethnicity which is the object of research and other
objects that are equivalent in practice and law in order to to
strengthen the theory that the author built.
RESULTS AND DISCUSSION
A.
The Legal
Position of Polygamy
Etymologically "polygamy" comes from two
Greek words, namely "poly", which means many and "gamein" which means marriage (Syahfitri & Fahlia, n.d.). Therefore, according to the linguistic meaning, the
meaning of polygamy is not distinguished whether a man marries many women or a
woman marries many men or it can mean that the same number of male and female
pairs enter into marriage transactions, all of which can be called polygamy.
In a socio-anthropological review, what is called
polygamy does not differentiate the meaning, whether a man marries many women
or conversely a woman marries many men. Here polygamy has two meanings:
1) Polyandry, namely marriage between a woman and
several men.
2) Polygyny, namely marriage between a man and several
women (Mustofa, 2018).
Polygamy according to the Big Indonesian Dictionary
is a marriage bond in which one party has or marries several members of the
opposite sex at the same time (Meiditya, 2018). In terms of polygamy, it means, the act of a man
collecting in his dependents two to four wives and not more than four (Sanan,
2003).
Polygamy in Islamic terminology means the act of a
man collecting in his dependents two to four wives, and no more than four (Hafidzi,
2017). Polygamy in this sense shows that those who want
to have more than one wife must have contractual ties according to Islamic law
and in accordance with state rules (Sanan,
2003).
B.
History of
polygamy
The concept of polygamy (ta'addud
al-zaujāt) in fiqh is
generally understood as a husband at the same time who gathers two to four
wives. Polygamy can not be known with certainty the
origin of its emergence. Since thousands of years ago, before the arrival of
Islam, polygamy had become a tradition that was considered normal (Umar,
2014).
The practice of polygamy carried out by the Prophet
Muhammad. very much different from polygamy that is happening today. Therefore,
to be able to clearly understand the intent and purpose of the Prophet's
practice of polygamy, it can be seen from the problems or reasons why he
practiced polygamy. Among them:
First, the Messenger of Allah was sent to spread
love and compassion to the whole world by Allah swt.
In line with the word of God in QS. al-Anbiyā
(21):107 (Means that We did not send you, but to (be)
a mercy for the universe).
Second, the Messenger of Allah was sent to be a
role model for mankind. This is explained in QS. al-Ahzab
(33):21
Third, the Messenger of Allah was sent to protect
and raise the dignity of women, orphans, slaves, and other oppressed people.
This is in QS. al-Nisa 127
Fourth, the Prophet ordered his people to settle
down to form a prosperous, happy family and grow a strong Islamic generation in
the future. Not solely to channel their sexual nature (Cahyani, 2018).
Fifth, with the many revelations that were revealed
to the Messenger of Allah. it is necessary to study so that the meaning
contained is clear and exemplified in accordance with the meaning of the
content. By knowing the implied meaning, it is clear the reasons behind the
practice of polygamy by the Prophet.
The practice of polygamy of the Prophet Muhammad.
clearly not based on a biological need, or simply for procreation. In the
Prophet's marriage, polygamy that he did by marrying an elderly woman except Aisyah, and also polygamy was carried out not in normal
conditions or situations, but in situations of jihad war, struggle and devotion
whose main purpose enforce Islamic teachings (Cahyani, 2018). The polygamy practiced by the Prophet was even
more than four wives, in the Qur'an also explicitly provides specifics and
restrictions on polygamy of the Prophet, so as not to be imitated by Muslims
carelessly (Wahyuninto, 2018).
Based on this kind of holistic discussion, we can
understand the practice of polygamyRasulullah more
proportionally. By knowing the history of polygamy carried out by the Prophet
Muhammad. along with the reasons and objectives that have noble principles,
clearly very much different from the polygamy that develops in people's lives
in general, which forgets the element of justice in it as the main requirement
in carrying out polygamy but prioritizes the fulfillment
of biological desires (Hariyanto, 2016).
C.
The provisions
of Polygamy in the 1974 UUP
Article 3
(2) The court may give permission to a husband to
have more than one wife if the parties
����� concerned
want.
Article 4
(1)
In the event
that a husband will have more than one wife, as referred to in Article 3 �
paragraph (2) of this Law, he is obliged to submit
an application to the Court in the area where he resides.
(2)
The court
referred to in paragraph (1) of this article only gives permission to a husband
who will have more than one wife if:
a)
the wife cannot
carry out her obligations as a wife;
b)
the wife has a
disability or an incurable disease;
c)
wife cannot
bear children.
Article 5
(1)
To be able to
submit an application to the Court as referred to in Article 4 paragraph (1) ��
of this Law, the following requirements must be
met:
a)
there is the
consent of the wife/wives;
b)
there is
certainty that the husband is able to provide for the necessities of life for
his wives and children.
c)
there is a
guarantee that husbands will treat their wives and children fairly (Nomor, 1 C.E.).
D.
The basic
provisions of Polygamy in KHI
Article 55 of KHI:
(1)
Have more than
one wife at the same time, limited only to four wives.
(2)
The main
requirement is to have more than one wife, the husband must treat his wife and
children fairly.
(3)
If the main
conditions referred to in paragraph (2) cannot be fulfilled, the husband is
prohibited from having more than one wife.
Article 56 of
KHI:
(1)
A husband who
wants to have more than one wife must obtain permission from the Religious
Court.
(2)
The application
for the permit referred to in paragraph 1 is carried out according to the
procedure as regulated in Chapter VIIIPP No.9 of 1975
(3)
Marriages with
a second, third or fourth wife without permission from the Religious Courts do
not have legal force.
Article 57 of KHI
(1)
The wife cannot
carry out her obligations as a wife.
(2)
The wife has a
disability or an incurable disease.
(3)
The wife cannot
bear children.
Article 58 of KHI
(1)
In addition to
the main requirements as stated in Article 55 paragraph (2), in order to obtain
a Religious Court permit, the conditions specified in Article 5 of Law No.1 of
1974 are also met, namely:
a)
There is the
consent of his wife/ wives.
b)
There is
certainty that the husband is able to guarantee the necessities of life for his
wife and children.
c)
There is a guarantee
that husbands will treat their wives and children fairly. The consent of his
wife/ wives is not required if it is impossible for his wife/wife to ask for
her consent and cannot be a party to the agreement, or if there is no news from
his wife for at least 2 (two) years, or for other reasons that require an
assessment from the wife on court judge
(1)
Without
prejudice to the provisions of article 41 letter b of Government Regulation No.
9 of 1975, the wife's or wives' consent can be given in writing or orally, but
even if there is written consent, this agreement is confirmed with the wife's
verbal consent at a court hearing Religion.
(2)
The consent
referred to in paragraph (1) letter a is not required for a husband if it is
impossible for his wife and wives to ask for their consent and cannot become a
party to the agreement or if there is no news from his wife or wives for at
least 2 years or for other reasons that need to be judged by the judge.
Article 59 of KHI
In the event that the wife does not want to give
consent, and the application for permission to marry more than one person is
based on one of the reasons stipulated in Article 55 paragraphs (2) and 57, the
Religious Courts may determine the granting of permission after examining and
hearing the wife who (Nomor, 1 C.E.).
Since the time of the Messenger of Allah, the
Companions, Tabi'in, the period of ijtihad and after
that, most of the Muslims understand the two akhkam
verses, namely the surah- Nis�' verses 3 and 129 are
as follows (Hartama
et al., 2016):
(1) ��The command
of Allah SWT, "then marry (other) women you like", is understood by fi'il amar (command word) fankih� as an ib�hah command
(permissible), not obligatory. This option indicates that you have the right to
more than one, but it is recommended that you keep one if you cannot. Linguists
and commentators also agree that the verse has a permissible limit (Hafidzi,
2017).
(2) ��The
principle of justice is not only seen from the readiness and ability from an
economic point of view (subsistence), but is able to fulfill
and please his wives and not behave unjustly. If this is the case, then it is
better to have only one wife. As Allah says, "Then if you are afraid that
you will not do justice, then (marry) only one, or the slaves you have" (Yanggo
& Subhan, 2006).
(3) ��The
understanding of the fair conditions is that if there is a concern that they
cannot act fairly in fulfilling the rights of wives who marry more than one,
then the principle of monogamy is mandatory. If he continues to force himself,
then he is a sinner even though his marriage is still valid (Al-Qasir,
2004).
The view of Jumhur
Ulama', which explains that verse 3 in Surah An-Nisa'
above came down after the Uhud war, when many Islamic fighters (mujahideen)
died on the battlefield. As a consequence, many orphans and widows are left
behind by their fathers and husbands. As a result, many orphans are neglected
in their lives, education, and future (Khoiruddin, 1996).
In addition, the contemporary Indonesian
commentator M. Quraish Shihab explains that the verse
above does not require polygamy or recommend it, he only talks about the
permissibility of polygamy, which is a small door that can only be passed by
people who really need it and with conditions that are not light. Thus, the
discussion of polygamy in the view of the Qur'an should not be viewed in terms
of ideals, or good and bad (Asiyah et al.,
2019). However, it must be viewed from the point of view
of legal stipulation in various conditions that may occur (Shihab,
2002). It is allowed because of the relief or in the
language called rukhsah. In line with this, Sayyid Qutb explained that the
leniency allowed in religion is always synonymous with things that are very
urgent. This also applies to the law that allows polygamy accompanied by
certain conditions such as fairness in providing a living and others (Purwanto,
2019).
E.
Maqosyid sharia
Maqashid Sharia in
Legal Establishment Responding to the pros and cons of the regulation of
polygamy permits in the UUP, the theory used in studying this problem is the
theory of maqashid syar'iyyah
(teleological Islamic law) which examines Islamic law based on certain
objectives to be pursued. achieved by the shari'ah,
namely for the benefit of mankind (limashalih al-'ibad). This theory was coined by al-Juweni
which was later developed by his famous pupil, Imam al-Ghazali, and then the
development of the peak of this theory was carried out by Imam ash-Syatibi (Yudian, 2006).
These philosophers of Islamic law agree that there
are five main interests regarding human beings that must be protected, and the
protection of these five core values is the goal of Islamic law.
Ash-Syatibi divides maqashid
or mashalih into three, namely mashalih
daruri (primary interest), haaji
(secondary interest), and tahsini (tersir). It is called primary benefit because this maqashid or mashalih cannot be
avoided to support the benefit of the hereafter and the world. The five primary
interests are: (1) protection of religiosity (hifdzud-din),
protection of human life/spirit (hifdz-nafs),
protection of reason (hifdzul-'aql),
protection of family/descendants or social (hifdzun- nasl), and protection of assets (hifdzul-mal)
(Anwar, 2007).
Based on the description of the regulation on
polygamy permits as described above, it can be understood that these
regulations, both through the UUP and KHI, refer to the purpose of marriage,
namely forming a family or a happy and eternal household based on the One
Godhead, or in the KHI formulation, which is sakinah,
mawaddah and rahmah. This
goal is in line with the objectives to be achieved from a legal stipulation
which in Islamic legal literature is known as maqashid
al-syari'ah, as described above that one of the five
main interests (mashlahah dlaruriyah)
is the interest of protecting the family/ descendants ( hifzun
nasl).
Hifdz ad din including sirri
marriages are not registered at the Office of Religious Affairs. According to
Islamic law, the marriage is considered valid by some because it has met the
criteria for the validity of the marriage, namely the consent, qabul, two brides, guardians and two witnesses. Siri
marriage is still often used as an alternative to anticipate promiscuity
between non-mahram men and women who are psychologically, morally and
materially, not ready to marry formally (Widodo & Fitria, 2010).
Hifdz nasl To get offspring
because a barren wife cannot give birth to children. Or because the wife is too
old and has broken her period. In choosing a wife, Islam likes women who can
give birth to children rather than those who are sterile, even though their
physical characteristics are more attractive. This is explained by the Prophet
with his words which mean, "Black women who have seeds are better than
beautiful women who are barren (Mustofa, 2018). The right to get equal opportunities in the field
of education (according to the principle of hifdz
al-'aql/ guarding reason) hifdz
nasl (maintenance of offspring) or in other terms
called hifdz al-'irdh
(maintenance of honor) all of which are included in
the category of dharuriy (Budiman, 2018).
Hifd and nafs the purpose of
marriage that is sakinah, mawaddah
and rahmah, should require careful preparation.
mature, and that maturity can be formed with the maturity of the soul. This
effort can also be said as a form of realizing maqasid
ash-syari'ah, hifdz an-nafs (protecting, protecting the soul) (Chakim, 2014). Hifd al mal property is
not everything, but it is not denied without wealth as a living, it is not
allowed in polygamy and as the main condition (Azmilhuda, 2016).
CONCLUSION
In Reinforcing Problems in Polygamy in Indonesia, which is
a form of marriage, this is justified both in the perspective of Maqosid Syariah and in Positive Law. That
polygamy is a part of marriage, it is based on the regulation on polygamy
permits, it can be understood that the regulation, both through the UUP and
KHI, refers to the purpose of marriage, namely to form a happy and eternal
family or household based on the One Godhead, or in the KHI formulation, sakinah, mawaddah and mercy.
These objectives are in line with the objectives to be achieved from a legal
determination.
The importance of understanding the theory of maqoshid Syariah to solve various legal problems, especially
regarding the terms and permits for polygamy, has been justified in Indonesia
for the renewal of marriage law in Indonesia by incorporating Islamic legal
values into national legalization, both marriage laws and Islamic
law compilati
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LEGAL RECONSTRUCTION AND POLYGAMY
PROBLEMS IN SHARIA MAQASHID AND POSITIVE LAW PERSPECTIVES