140 islam, politics and change
When looking at legislation on polygamy introduced in Muslim
countries, two trends emerge. The first is for polygamy to be entirely
abolished and considered a crime; and the second is for it to be permitted
but, in order to avoid the abuse of its practice, to be governed by
strict regulations.⁴ In the latter case polygamy requires the court’s
permission and is dependent on husbands meeting certain requirements
and conditions. By including these restrictive conditions, Qurʾanic
standards of ‘equal justice’ are no longer a matter for the moral conscience
of the individual, but rather a legal matter to be decided by the court.
Indonesia has taken the second approach, allowing polygamy. Articles
55, 56 and 57 of the Kompilasi thoroughly administer polygamy and list
the required conditions and qualifications. These articles insist that a
polygamous marriage can be solemnised only if all these conditions
are fulfilled, and only if one of the reasons mentioned in the legisla-
tion allowing it exists. Failure to fulfill the requirements results in its
prohibition. Above all, the approval of the court is absolutely essential
and this means that such a marriage can be legally recognised only if
it is approved by the court. However, Articles 58(3) and 59 abolish the
necessity for the wife’s consent. Article 58(3) regulates the condition
when wives are absent and their whereabouts are unknown, preventing
them from being involved in the case. It states that the consent of a wife
or wives does not have to be taken into account if she or they could not
be consulted, or if her or their whereabouts have not been known for two
years, or if other conditions prevent her or them from being involved
in the case that is being reviewed by the judge.⁵ Further, Article 59 lays
down rules for situations where husbands have presented grounds for
divorce, but wives have refused to give their consent. In such instances,
the courts have superior authority. It states that:
In cases where wives are reluctant to give her or their consent and
the husbands’ proposal for polygamy has met one of the specified
reasons as ruled in Art. 55 (2), the religious court has the right to make
a decision on the proposal, after they have heard the wives’ argument
and clarifications in court.⁶ For a detailed discussion of the legal reform on polygamy in a number of Muslim
countries see Jan Michiel Otto (ed.),Sharia Incorporated: A Comparative Overview
of the Legal Systems of Twelve Muslim Countries in Past and Present(Leiden:
Leiden University Press, 2010). See also John L. Esposito,Women in Muslim
Family Law(New York: Syracuse University Press, 1982), 92.
Article 58 of the Kompilasi.
Article 59 of the Kompilasi.