Etymologically, a Covert Second Marriage Without Registration (Nikah Siri) is a marriage that is not officially recorded by the state. The term “siri” is derived from the Arabic language, meaning “secret.” Nikah Siri are often interpreted in society as “Underhanded Marriages,” meaning marriages performed with all the requirements and conditions fulfilled, such as the marriage contract (ijab-kabul), the presence of the bride’s guardian, and two witnesses. However, the parties involved (husband, wife, guardian, and witnesses) agree to keep this marriage secret from the public and without involving the Marriage Registrar to record the marriage in official documents by the Office of Religious Affairs (Kantor Urusan Agama – “KUA”) for Muslims or the Civil Registry Office for non-Muslims. Regarding Nikah Siri/Underhanded Marriage, the Indonesian Council of Ulama (Majelis Ulama Indonesia – “MUI”) issued Fatwa Number 10 of 2008 (“Fatwa 10/2008”) which states:
- First: The Underhanded Marriages referred to in this fatwa is “a Marriage that fulfills all the requirements and conditions stipulated in Islamic jurisprudence (fiqh) but without official registration in the competent institution as regulated in the legislation.”
- Second: Legal Provisions:
a. The Underhanded Marriages are valid because they have fulfilled the requirements and conditions of marriage, but they are prohibited if they cause harm.
b. Marriages must be officially recorded by the competent institution as a preventive measure to reject negative impacts (saddan lidz-dzari’ah).
According to Fatwa 10/2008, Nikah Siri are valid if all the requirements and conditions of marriage in Islam are fulfilled, including:
- Both prospective spouses are Muslim or willing to convert to Islam;
- A prospective female spouse who is widowed must show a divorce certificate and has passed the waiting period (iddah) or can make a verbal declaration;
- The prospective male spouse does not already have four wives;
- Both prospective spouses can provide their identity cards (KTP) before the marriage contract (ijab qabul);
- The prospective spouses are not mahram (forbidden) to each other;
- Bringing and showing the dowry or gifts given during the marriage contract;
- Not currently in a state of ihram or umrah pilgrimage.
In addition, Article 2 paragraph (1) of Law Number 1 of 1974 concerning Marriage as amended by Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1975 (“UU Perkawinan”) states that:
“Marriage is valid if conducted according to the law of each religion and belief.”
This is further reinforced by Article 4 of the Compilation of Islamic Law (“KHI”) which states:
“Marriage is valid if conducted according to Islamic law in accordance with Article 2 paragraph (1) of Law No. 1 of 1974 concerning Marriage.”
Thus, marriage is valid if conducted according to the laws of religion and beliefs of the marrying parties. Therefore, the Marriage Law places religious law and belief as the main requirement in conducting marriage and implicitly does not prohibit Nikah Siri, as long as the Nikah Siri is conducted in accordance with the rules of religion and belief. So, if a husband already has a legal and state-recognized wife, and then secretly enters into a Nikah Siri with another woman according to the requirements and conditions of marriage, but without the knowledge and consent of the first wife, then according to religious law, the Nikah Siri is still valid.
However, the UU Perkawinan and HIR require every marriage to be registered as stated in Article 2 paragraph (2) of the Marriage Law in conjunction with Article 5 paragraph (1) of the KHI which states:
Article 2 paragraph (2) of the Marriage Law:
“every marriage must be recorded according to applicable regulations.”
Article 5 paragraph (1) of the KHI:
“in order to ensure the order of marriage for the Muslim community, every marriage must be recorded.”
This registration of marriage is carried out to obtain a “Marriage Certificate” which serves as evidence of the marriage, thereby providing legal status for the wife and children before the state. However, this Marriage Certificate is not a requirement for the validity of marriage but is an obligation for citizens who marry. Therefore, because Nikah Siri are not recorded, there is no Marriage Certificate as evidence of the marriage, so the wife and/or children in Nikah Siri are not recognized by the State. This could potentially lead to the couples involved in Nikah Siri being considered as committing adultery, especially if a man who is legally and religiously married to one woman enters into a Nikah Siri with another woman. This could potentially be prosecuted under Article 284 of the Indonesian Criminal Code (“KUHP”), which states:
- Threatened with imprisonment for a maximum of nine months:
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- a. A married man who commits adultery (overspel), knowing that Article 27 of the Civil Code (BW) applies to him.
b. A married woman who commits adultery, knowing that Article 27 of the Civil Code (BW) applies to her.
2. a. A man who participates in the act, knowing that the person who participates is guilty and already married.
b. married woman who participates in the act, knowing that the person who participates is guilty and already married, and Article 27 of the Civil Code (BW) applies to her.
2. Prosecution shall only be conducted upon the complaint of the polluted husband/wife, and if Article 27 of the Civil Code (BW) applies to them, within a period of three months followed by a request for divorce or separation due to that reason as well.
3. Articles 72, 73, and 75 do not apply to this complaint.
4. The complaint can be withdrawn as long as the examination in the court session has not started.
5. If Article 27 of the Civil Code applies to the husband-wife, the complaint is not considered as long as the marriage has not been dissolved due to divorce or before a decision declaring separation of bed and board becomes final.
Although, UU Perkawinan basically provides opportunities for a husband to have more than one wife, permission must be obtained from the Court as stipulated in Article 4 of the UU Perkawinan, which states:
- In the event a husband will marry more than one wife, as mentioned in Article 3 paragraph (2) of this Law, he is obliged to submit an application to the Court in the area where he resides.
- The Court referred to in paragraph (1) of this article only grants permission to a husband who will marry more than one wife if:
a. The wife(s) agrees;
b. There is certainty that the husband can guarantee the needs of the wives and their children;
c. There is a guarantee that the husband will treat the wives and their children fairly.
Furthermore, Article 5 paragraph (1) of the UU Perkawinan stipulates further regarding the conditions that must be met to apply for permission from the Court, as follows:
- To apply to the Court, as referred to in Article 4 paragraph (1) of this Law, the following conditions must be met:
a. The consent of the wife/wives;
b. The certainty that the husband can guarantee the needs pf the wives and their children;
c. The guarantee that the husband will treat the wives and their children fairly.
Therefore, a husband who enters into a Nikah Siri without the knowledge and permission of his legal wife, even though the Nikah Siri meets the requirements and conditions of marriage or can be said to be valid according to religion, may potentially be charged with the offense as regulated in Article 279 of KUHP, which states:
- Threatened with imprisonment for a maximum of five years:
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- Anyone who enters into a marriageknowing that their existing marriage or marriages are legitimate obstacles to it
- Anyone who enters into a marriage knowing that the marriage or marriages of the other party are obstacles to it.
2. If the act is done as stipulated in paragraph 1 subparagraph 1, hiding from others that the existing marriage is a legitimate obstacle to it, is threatened with imprisonment for a maximum of seven years.
Therefore, the husband who secretly enters into a Nikah Siri without the knowledge and consent of the legal wife may potentially be charged with a criminal offense as regulated in Article 279 paragraph (1) sub-paragraph 1 of KUHP and/or Article 284 paragraph (1) sub-paragraph a of KUHP. However, it should be noted that the criminal charges as described above are complaint offense. Therefore, there must be a complaint from the legal wife, only then can the husband who secretly enters into a Nikah Siri without the knowledge and consent of the legal wife be charged with a criminal offense as described above.
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