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ublic concern was recently raised over the issue of nikah siri (unregistered marriages) after a businessman, Aris Wahyudi, the owner of nikahsirri.com, was arrested. His website facilitated nikah siri and he even advertised a “virgin auction.”

Aris’ actions triggered condemnation by authorities and the public, and finally the police declared him a suspect for contravening the Pornography Law and Electronic Information and Transactions Law.

The word siri originates from the Arabic sirrun, which means quietly or exclusively, or as-sirriyyu, secretly. Thus nikah siri means a marriage held quietly/exclusively/secretly.

However, the phrase is understood in Indonesia as any marriage that is unregistered with an official marriage registrar. In the Javanese culture, such marriages are called nikah kampung (village marriage).

Unregistered marriages have prevailed both in rural and urban society until today. The prevalence of such marriages is heavily influenced by various factors such as the teachings of classical Islamic jurisprudence that Islamic marriages do not require registration by government officials. Then there is a man’s intention to marry another woman without having to request the consent of his first wife.

The issue of unregistered marriages has been an enduring point of debate since the passing of the 1974 Marriage Law. In particular Article 2 has led to ambiguous interpretation. For those who interpret it narrowly, a marriage is valid without registration, while for those who interpret it comprehensively, a valid marriage must be in line with religious law and should be registered with a marriage registrar.

Evidence of registration appears in the issuing of a birth certificate, while for children born of unregistered marriages, the birth certificate will only list the mother.

Article 2 constitutes the maximum effort of the state to create legal uniformity amid Indonesia’s competing legal traditions. The state can only create legal uniformity on the procedures of marriage, which is registration, and not on the substantive aspect, which is the validity of marriage. Legal uniformity on the substantive aspect failed because of strong resistance from Muslim representatives at the time of deliberation of the marriage bill way back in 1973.

The substantive aspect concerning the validity of marriage is, therefore, subject to religious laws, including Islamic law. Interpretation of Islamic law on the validity of marriage should not be rigid, but dynamic, that should change in accordance with context and time, as the product of human thought.

Marriage in the Quran is considered as mitsaqan ghalidzan or a strong bond, as cited in the Surah An-Nisa (Women, Al Quran 4: 21). Although the marriage has a solid bond, the Quran does not stipulate registration, unlike a debt contract, as cited in Al-Baqarah (the Cow, 2: 282).

Thus we need to understand the social and cultural context of Arabia at the time of the revelation of the Quran, which was a tribal society. A tribe comprised several clans bound by blood ties, and a clan consisted of several families, with each family living in tents.

In such conditions, the communal society displayed strong togetherness with tribal leaders responsible for the protection of every member.

After marriage, tribe members tended to settle in particular regions, because of the limited means of transportation and livelihoods requiring little mobility. In such a situation, the community played an important role in controlling the marital status of each member.

Community members could become witnesses to all marriages. This is why the Prophet Muhammad recommends Muslims to hold a public wedding ceremony “if only with a single goat.” The main aim is to enable the marriage being witnessed by members of society.

In such a community, marriage registration was not necessary for the community, and it is this background that may have affected classical scholars in formulating principles and conditions of marriage.

However, today’s families are nuclear families with high mobility in transportation and advanced progress in communication. The community has lost its role of controlling the marital bonds of its members.

In addition, the concept of the nation-state in the post-colonial era has also given the state the authority to protect citizens’ rights by regulating population administration, including marriage registration.

Thus marriage registration is a must to provide legal protection for those who get married and the children born from such unions. Therefore, marriage registration should become part of marriage principles that impact the validity of marriage.

The objectives of sharia include protecting the teaching of religion, one’s mind and soul, offspring and wealth. Protecting children includes the order to protect lineages, to take care of children, to conduct their custody with preparation and good education, to save them from being lost and separated — and the registration of marriage could meet all these objectives.
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The writer is a judge at Bima Religious Court, West Nusa Tenggara.