146 islam, politics and change
given in the decisions issued by the court of Tangerang include religious
observance (ibadah)¹⁸ in two cases, wives’ failure to satisfy the sexual
desire of their husbands in two cases, and the husband’s high mobility
in one case, all five of the petitions, plus two petitions in the court of
Serang, were basically approved in order to fulfill the high sexual desire
of the petitioners (husbands).¹⁹
To give an example, a housing contractor (with one wife) who had
been living in Serang for a year for his work while his wife and four
children had stayed behind in Bandung, had asked the court of Serang to
allow a polygamous marriage after he had met a woman in Serang and
had fallen in love with her. To avoid extra-marital sexual intercourse
(zina) he wanted to marry her. The reason he advanced was that his
wife could not fulfill his sexual needs as she was living far away. The
judges agreed on the condition that his wife gave her consent and that the
husband had sufficient financial resources. The judgment also stated that
it was feared that the husband would be tempted into extra-marital sexual
intercourse unless his request were granted. The reason put forward by
the husband is not specified in the law. He simply stated that his wife had
figures Butt remarks that, given Indonesia’s large population, the numbers seem
quite small. Nonetheless, he suggests that the proportion of approvals may sup-
port his and other researchers’ claims of a relatively permissive approach by
judges to polygamy, with which I agree. See Simon Butt, ‘Islam, the State and the
Constitutional Court in Indonesia’,Pacific Rim Law and Policy Journal, 19 (2),
2010, 291. For details on the number of polygamy applications and approvals
in those years seeMenguak Sisi Gelap Poligami, hukumonline, 23 Decem-
ber 2006, http://www.hukumonline.com/berita/baca/hol15941/menguak-sisi-gelap- poligami (accessed June 2011);SyaratPoligami akan Diperkuat, hukumonline,
19 February 2009, http://www.hukumonline.com/berita/baca/hol21230/syarat-poligami
-akan-diperketat (accessed June 2011).
Muhammad Insa, an Indonesian Muslim who considers polygamy a religious
observance (ibadah) to be upheld by Muslims, challenged the stipulations on
polygamy in the Law of Marriage and the Kompilasi. He protested that these were
in violation of the right of religious freedom and petitioned for judicial review by
the Constitutional Court rather than applying for polygamy at the religious court.
He argued that polygamy is a matter of ibadah and the state has to allow Muslims
to practise it. Arguing that the rules on polygamy do not violate people’s rights,
the Constitutional Court dismissed Insa’s application. For a further discussion
on this issue see Faye Yik-Wei Chan, ‘Religious Freedom vs. Women’s Rights in
Indonesia: The Case of Muhammad Insa’,Archipel83, Paris, 2012, 113–145. See
also Butt, ‘Islam, the State, and the Constitutional Court in Indonesia’, 2010.
Some of these judgments are identified as Decisions No. 280/Pdt.G/2009/PA. Srg,
No. 526/Pdt.G/2009/PA.Srg, No. 322/Pdt.G/2009/PA.Srg, No. 211/Pdt.G/2008/
PA.Tng, and No. 164/Pdt.G/2008/PA.Tng.