Women and Justice: Court: Constitutional Court of Indonesia

Domestic Case Law

In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)

Gender discrimination, Harmful traditional practices

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.