sharia-based laws 157
Right to Equality
The laws and regulations on and the practice of polygamy also violate
the articles of cedaw regarding equality. cedaw affirms equality to all
people, men and women, within marriage. Article 16 of cedaw states
that:
Parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations
and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage; (b) The same right freely to
choose a spouse and to enter into marriage only with their free and full
consent.Article 59 of the Kompilasi states that the consent of a wife can be
dispensed with when certain conditions, which often do not concern the
wife, are met. Moreover, even in the case of the absence of any stated
criteria, judges are not required to see whether or not the consent of the
wife is given sincerely. Although almost all of the women interviewed said
that they agreed with the laws that allow polygamy, they also stated that if
their own husband wanted to marry an additional wife they would object.
This suggests that although not many wives would sincerely consent to
their husband’s proposal for polygamy, husbands can in court still obtain
the required consent from their wives. This illustrates an inequality.
In practice, polygamy seems to be considered as a man’s right, leaving
women little choice but to agree. Saying ‘no’ can mean the end of the
marriage on which they are often financially dependent.
In this context, the Law on the Elimination of Domestic Violence (uu
Penghapusan Kekerasan dalam Rumah Tangga No. 23/2004) needs to be
mentioned. It provides detailed rules in relation to domestic violence
and categorises violence into four types: physical, mental, sexual and
neglect (penelantaran) of financial support and childcare.⁴⁵ A polygamous
marriage that results in a wife suffering can be considered as a form of
mental violence. Researchers such as Nurmila and Brenner have pointed
to polygamy having such effects on existing marriages.⁴⁶ Nonetheless, it
See Arts. 5, 6, 7, and 8 of uu pkdrt. See also Ratna Batara Munti,Advokasi
Kebijakan Pro Perempuan: Agenda Politik untuk Kesetaraan dan Demokrasi,
(Jakarta: Yayasan tifa dan pskw Pasca Sarjana ui, 2008).
See, for example, Nina Nurmila,Women, Islam and Everyday Life: Renegotiating
Polygamy in Indonesia(London and New York: Routledge, 2009); Syzanne Bren-
ner, ‘Holy Matrimony? The Print of Politics of Polygamy in Indonesia’, in Andrew
N. Weintraub,Islam and Popular Culture in Indonesia and Malaysia(London