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Jakarta Post

Children have right to marry: Supreme Court

  • Nurul Fitri Ramadhani and Marguerite Afra Sapiie

    The Jakarta Post

Jakarta   /   Fri, November 23, 2018   /   09:29 am
Children have right to marry: Supreme Court The 1974 Marriage Law sets the marriageable age for women at 16 and for men at 19, even though the 2002 Child Protection Law defines children as anyone “under the age of 18”. (Shutterstock/File)

A Supreme Court justice and spokesman has said the court could not prohibit people from getting married, including minors who wish to be exempted from the national regulation regarding the minimum age of marriage. 

The 1974 Marriage Law sets the marriageable age for women at 16 and for men at 19, even though the 2002 Child Protection Law defines children as anyone “under the age of 18”. 

Religious courts, however, have been granting minors as young as 15 years old dispensation to be legally married, especially in regions where child marriage is considered the norm.

The court’s discretion to give dispensation is stipulated in Article 7 of the Marriage Law.

“Each individual has the right to get married. That’s a human right. We can’t prohibit them as long as they are not violating any laws,” Supreme Court justice and spokesman Suhadi told The Jakarta Post on Thursday. “If the children wish [to marry] then you can’t prohibit them.” 

Concerns about child marriage have been raised once again after a girl in Indramayu, West Java, who got married at 15, died about two years into her marriage allegedly as a result of domestic abuse.

Read also: 'She could have been saved': Indramayu child bride dead after alleged abuse

The girl was legally married to her husband, then 16, at a local religious court. Their families decided to marry them off out of concern they might have premarital sex, so they requested that the Indramayu religious court grant their children a marriage dispensation.

Secretary-general of the Indonesian Women Coalition’s (KPI) West Java chapter Dariwinih criticized Suhadi’s statement, saying that children could not be legally held responsible for their choices.

“The dispensation request is made by the parents. Children are prohibited from getting married, as their reproductive organs, particularly girls, are not ready. We recommend that the government abolish the policy of legalizing child marriages,” she said. 

While activists have been fighting campaigns against child marriage, religious courts have been permissive in giving marriage permits to minors. 

In 2016, the Indonesian Coalition to End Child Marriage (Koalisi 18+) conducted a study on marriage permits at religious courts in the three regencies with the highest number of child marriages: Mamuju in West Sulawesi, Tuban in East Java and Bogor in West Java. The study found that the judges approved 97.6 percent of a total 377 marriage permit requests filed at the courts. 

UNICEF data from 2017 ranked Indonesia as having the second most cases of child marriage of all ASEAN countries. 

Data from Statistics Indonesia (BPS) in 2016 showed that 17 percent of Indonesians got married before 18 years old, 1.12 percent of whom were under 15 when they tied the knot.

A researcher from the University of Indonesia’s Judicial Watch Society (MaPPI), Dio Ashar Wicaksana, said judges should have gender perspective when reviewing marriage permit requests. “[Child marriages] can also happen when the girls are forced to get married. Most of the time, our patriarchal culture leaves women with no choice. The judges must also consider that.”

Suhadi acknowledged that the court had released a circular advising justices to consider the psychological and physical impacts of their rulings on women, but justices usually cite cultural norms when considering marriage permit requests. 

“There are still many regions that tolerate early marriages. That can be one of the considerations of the judges in giving approval,” Suhadi said.

This article was originally published in The Jakarta Post's print edition on Nov. 23, 2018, with the title "Children have right to marry: Court".