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Jakarta Post

Masruchah: Secret marriage not an Islamic tradition

The Religious Affairs Ministry recently submitted the religious court on marriage bill to the State Secretariat for the President to endorse

Kurniawan Hari (The Jakarta Post)
JAKARTA
Sun, March 8, 2009

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Masruchah: Secret marriage not an Islamic tradition

The Religious Affairs Ministry recently submitted the religious court on marriage bill to the State Secretariat for the President to endorse.

Once the President endorses the draft bill, the House of Representatives still needs to approve it before it becomes law.

If the bill is passed into law, the practice of nikah siri (unregistered marriage) will be banned and men will have to comply with certain requirements if they want to take a second wife.

Widely practiced in Indonesia, nikah siri and polygamy are often detrimental to women and children.

To get more insight into the issue, The Jakarta Post talked with Masruchah, thIndonesian Women's Coalition secretary-general. Masruchah, an expert on the issue, says the draft bill has an antidiscrimination agenda. Below is an excerpt of the interview:

What is your opinion about the draft bill that bans nikah siri?

I agree with it. Under existing laws, all marriages must be registered at the civil registry office. When a marriage is kept secret, a woman cannot seek legal help from the state if she is subjected to domestic violence or experiences other marital problems.

It is proven that nikah siri is mostly detrimental to women and children. If a husband beats his wife, faces economic hardship or gets a divorce in an undeclared marriage, his wife is not protected by any state laws.

I agree with the idea that nikah siri must be banned. As far as I know, many women are stuck in nikah siri. Nikah siri is not only widespread in religious communities but also among young women in order to avoid adultery.

There are many cases of nikah siri among students. We found instances of nikah siri among students in Yogyakarta. We urged local administration to ban nikah siri and polygamy as both are detrimental to all the women involved, the first and second wife as well as the children.

What do you mean by detrimental?

Marriage is about commitment: commitment from both parties to the marriage, husband and wife. If a marriage is not declared, and the state does not have any record of the marriage, then neither party in the marriage can be protected by the state. Who will protect victims if there is a problem?

If the man leaves his wife, who will look after her? How about the children's rights? In nikah siri, the husband can walk away from his wife overnight, leaving the children from that marriage without any rights, since they have no legal birth documents.

How about the issue of polygamy?

Yes, I agree with the idea that a husband must seek *written* permission from his first wife if he wants to take a second one. The goal of a marriage is to build a family that will eventually bring sakinah, mawadah and rahmah (happiness, prosperity and peace). That is the ultimate goal in a marriage that a husband and his wife have agreed on.

The couple getting married makes a promise known as tamliq or ibahah, declaring that husband and wife belong to each other. Although it depends on the interpretation, the promise must not be perceived simply as a physical possession over the body of the spouse.

Some husbands think they can possess their wives as soon as they give them a mahar (marital gift). It should not be that way.

Ibahah is a based on an Islamic concept that means dialog, discussion or interaction. I can have my husband's body and he can have mine. But body in this context means wealth, property and a shared goal. The aim is to create a happy family through dialog and musyawarah (deliberation).

Very often, polygamy occurs without the first wife's consent. Anyway, what kind of woman would agree to her husband having a second wife?

Of course none would, since it would entail the first wife agreeing to share her husband's love, time and attention with another woman.

There are cases where husbands take a second wife without their first wives' knowledge. If the first wife ever finds out about the second marriage, there is bound to be a fight. Second wives are no better off either as their husbands tend to favor nikah siri when taking them as an extra wife.

I don't think there is any legal basis for polygamy. Polygamy in Indonesia is more the product of different interpretations of law. By law, a husband can take a second wife if the first one cannot perform her spousal functions.

What does "function" mean? That a wife cannot give birth or that she can no longer have sexual relations with her husband? If "function" means the latter, it's a very selfish interpretation from the husband.

Can a wife take a second husband if hers cannot perform his duties? I think women normally disagree with the idea of nikah siri, polygamy or polyandry.

How do you see the move to deliberate this draft bill?

I think the government is trying to give more protection to women and discourage domestic violence. In Islam, a marriage is governed by the principle of justice and not violence. I believe the Religious Affairs Ministry has learned from real cases. That nikah siri and polygamy are detrimental to women is an undeniable fact.

Can you tell us about the research you have carried out on this issue?

We have come across many cases of polygamy and nikah siri. The Indonesian Women's Coalition is an organization made up of many people with different backgrounds and interests, including housewives.

I believe housewives who have lived in nikah siri or polygamy have experiences worth sharing.

I think this social problem (relating to nikah siri and polygamy) needs to be addressed. Based on our assessment, nikah siri and polygamy eventually lead to social or family conflicts.

Some see this draft bill as the state intervening into family affairs. What do you think?

I don't think this bill amounts to state intervention. In fact, I think violence against women and children must be avoided at all costs for the sake of justice and peace. We also have a law against domestic violence.

This bill is an attempt to provide more protection for women when problems arise as a result of nikah siri or polygamy. I believe the draft bill promotes justice.

Why is the government only taking action now?

I think the government has been active for a while now, especially when it passed the domestic violence and discrimination laws. If these laws didn't exist, discrimination against women and children would continue. These laws serve as an umbrella act *for the proposed bill*.

We also have a Constitution that prohibits discrimination and promotes human rights. This bill is part of the push to prevent violence and discrimination.

Why now? This is a good time to take action, with growing religious fervor in several regions. There are also an increasing number of social problems. I believe that people have the common sense to discuss this issue, including the legislators and officials at the Religious Affairs Ministry.

Some people want the draft bill to be incorporated into the marriage law; what do you think?

I think that is only one of many strategies. Should we wait for a revision of the marriage law or create another? We have been waiting since the 1970s for a revision of the marriage law because it is too old.

Are you invited to take part in the discussions on the bill?

Not really. If we are invited to take part in the discussion, I think we would inform the debate with real cases. We have done research on this issue and can share this information.

Polygamy is associated with violence and violation of rights. Nikah siri dehumanizes women and treats them as commodities. There is no legal protection under nikah siri: a husband can leave his wife if he no longer feels comfortable with her. Since there is no legal protection under nikah siri, I think it is in a way like human trafficking.

Nikah siri is a legitimate practice based on religion. But of course, its legitimacy depends on clerics. In the Islamic tradition, marriages should be made public. That is why Islam has walimatul ursy, a kind of modest ceremony that follows a wedding. This is usually the way a marriage is made public.

Because the nature of nikah siri is secret, it is therefore not in line with the spirit of Islam.

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