An Interview with Asnifrianti Damanik, S.H.
The issue of marriage has become an interesting issue to discuss from different point of views. Marriage involves the effort of building commitment to unite a couple to live happily and peacefully together. The Muslim scholars (ulama) also consider the importance of this issue. The books of Islamic Jurisprudence (fiqh) always explicate a chapter on Munakahat (marriage) which contains a number of teachings about what and how the marriage is. Besides, the practices of marriage that occur in our society usually use the regulation of the state which is expected to be obeyed by its citizens.
To discuss this issue, Swara Rahima has interviewed Asnifrianti Damanik, SH., a female activist and marriage counselor from APIK Legal Aid Institute (Indonesian Women’s Association for Justice) Jakarta. Asnifrianti was born on March 26, 1968, and the alumnus of the Faculty of Law, University of North Sumatra Medan. She started her career as a teacher at Islamic Junior High School and got married to a man from Aceh. Mrs. Asni, her nickname, has been very active in NGO (Non-Government Organization) since 1996. Now, beside working in APIK, she is very busy as a legal consultant at Komnas Perempuan (National Commission on Violence against Women) and as an advocate in the BK Law Office. Amidst her busy schedule, Mrs. Asni spared her time to have an interview with AD. Kusumaningtyas from Swara Rahima. Here it is:
How is your opinion in regard to marriage in general?
Marriage, according to me, is an agreement between man and woman. They agree to unite through marriage bond to achieve common goals. Everyone who gets married definitely has a goal. So they commit themselves to achieve that goal. Concisely, when they decide to carry out a marriage bond, there is a purpose. Whatever the goal is, it must be mutually agreed together.
Then, what is the definition of “marriage” in the applicable law in Indonesia?
In Indonesia, the definition of marriage applied refers to the Marriage Law of article 2 verse 1. It is stated that marriage is an inner binding between a man and a woman to achieve a happiness based on the belief in the One and only God.
How is the issue of marriage viewed from the diversity of a legal system in Indonesia?
With reference to the aforesaid definition of marriage, the inner and outer binding between man and woman are considered legitimate if conducted in accordance with the religion and belief respectively. If it is conducted against the provisions enacted in the marriage law or if it is inappropriate with the respective religion and belief, then it is illegitimate. Once, it is legally justified by the religion or belief then they follow the administrative procedures of the state; their marriage is registered and therefore protected by law.
Practically, how is legitimate according to religion and then registered by the state?
Legitimate according to religion means based on the respective belief. For example in Islam, it must conform to the marriage law in Islam. It is legitimate based on religion and there is an obligation for the couple to fulfill administration requirement, and importantly to easily manage any consequence arising from marriage. When they have a problem, it can be processed under the law of the state, for the Muslims in KUA (the Office of Religious Affairs) while for non-Muslim in the Office of Civil Registration.
So, in this case, the role of the state is merely on the matter of registration?
Yes, it is mostly in regard to administration matter. The state does not determine whether the marriage is legitimate or not. It is determined by the belief and faith of the couple in their religion. As the implication of registration of marriage by the state, married couples have legal force if there is any problem needs to be settled legally. Otherwise, the couple cannot process it, because their marriage is not registered in the administration of the State.
How is the principle of marriage in that law?
It is stated that the marriage must be monogamy but still opens the possibility of “conditional polygamy”. If the principle is monogamy, it means that one man has one wife and vice versa one woman has one husband. But the possibility of practicing polygamy in the sense that a man may have more than one wife must meet some difficult conditions. Those conditions among others are the wife has no descendant (the marriage is not blessed with the presence of child, -Red.); the wife has perpetual illness or having physical disability so that she could not do her duty as a wife; and any husband who wants to practice polygamy must get approval from his wife and also from the court, and he is supposed to act fairly to the wives.
Polygamy is considered legitimate if it meets the conditions prescribed by the marriage law. But, it possibly causes “deviation”. For example, there is a practice called sirri marriage (unregistered marriage). It is one of the bad impacts because of this obscurity. How is your view in regard to this?
In the enacted law, it is actually quite clear that they are allowed to practice polygamy based on certain and obvious condition. The problem is many people who practice polygamy under the hand (secretly) do not fit the requirements since they get permission from the court, not from the wife. The wife is only requested for the consent. Suppose that she does not agree but if the conditions have been fulfilled according to the court, then the court may give permission to the husband for polygamy. The fact is many practices of polygamy do not follow the proper rules and requirements as pescribed by the Marriage Law.
What about “sirri marriage”?
According to religion (Islam), sirri marriage or “marriage under the hand”, is a legal marriage but it is not registered in the administration recognized by the law of the state. It means that the marriage is not registered to the state or not recorded by the official authority. Nevertheless, sirri marriage is very risky especially in the present day where honesty is hardly found. If the husband commits betrayal or dishonesty, the wife in such marriage will be a victim.
How is the relationship between polygamy and “sirri marriage”?
The relation between polygamy and sirri marriage is that sirri marriage can only be conducted between a man and a woman who are not under a legitimate marriage bond. If the woman is under legitimate marriage, she is not supposed to get married to any other man. If violating, she was considered adultery. On the contrary, the man who is under the marriage bond, he can perform sirri marriage but not regarded as doing adultery because it is religiously considered legitimate.
Both “sirri marriage” and polygamy bring negative effect for the woman. If we refer to the Marriage Law, can both of them be regarded violating the law?
It is not against the law in Indonesia but violating human rights. The marriage law is really unfair, often discriminate against women. In the case of polygamy, women (wives) do not have equal rights with the men (husbands). When the husband and wife do not have a descendant, the husband is allowed for polygamy. Still, the wife cannot propose for polyandry (having more than one husband, -Red.) though both are having the same excuses to get descendant. In such case, there is discrimination between man and woman. The reasons used in the matter of polyandry is a worry that her descendant is not known who the biological father is. But, to know the biological father according to a medical science now is not difficult. So what happens is that if the husband is obviously incapable of giving descendant and medical test proves it, the wife cannot do anything. On the contrary, for the husbands, they can get married with another woman (polygamy), if the wife has a fertility problem.
There are a lot of flaws in the Marriage Law No. 1/1974. Any flaw which is crucial and has a big implication for the emergence of violence against women?
Referring to the definition of marriage that marriage is an outer and inner binding. In the Book of Civil Law (Kitab Undang-Undang Hukum Perdata) article 1338, it is stated that the relationship needs some conditions; each party should have the ability or capability to act before the law; they also have to make an agreement approved together and not against the law. They have an equal position of right and obligation. I often say, when a man and a woman get married, their position is equal, both in the rights and obligations. But when they have been tied up with marriage bond, the woman’s position is under the man’s. The man becomes the head of the family, while the woman will be a housewife with her respective rights and obligations. The obligation of the husband is to give livelihood and the wife must take care of domestic affairs. This unequal position then opens an opportunity for violence against women. The woman, with the aforesaid given roles, will always have an unequal position and she will always be given a domestic role. The problem appears when she has to take part in public affairs and must get approval from her husband, as he is the head of the family. When she does not get permission, her husband can propose for divorce because the wife is regarded not doing her duty. In the next article, it is said that if one of the parties could not carry out the obligation, then the other party can sue for divorce. What we can see from such case is that the wife, in the lower position, possibly receives physical, psychological, sexual and economic violence.
What should the woman do facing such situation?
A woman should anticipate if her rights are repressed. I would rather advise a woman, especially unmarried woman at the moment of marriage, to pay attention to the marriage law. What I can see so far when I meet anybody who has been married for a long time, they do not know well about the marriage law. They do not understand. I suggest every woman know the marriage law so they can understand their own rights and obligations. After reading that law, they can adjust to her partner. Importantly to know, in our regulation, a certain agreement between husband and wife will be legally binding and valid. For example, they say the purpose of our marriage is not like this and so on. It can be mutually agreed and can be made in the agreement. Usually, it is called prenuptial agreement. The agreement makes the position of woman and man equal, both in rights and obligations which are approved together. It also can be changed, if they agree to change.
Then, how about the married women?
If they have been married based on mutual love, I suggest them to communicate each other. Ask the husband to discuss if something is unfair. Perhaps, the relation seems really burdensome. In the law No. 1/1974, it is stated that the husband has obligation to earn a living. Unfortunately, many husbands do not have a job. It becomes a burden for the woman if she has to bear that obligation. In this case, necessarily the obligation of the wife is just to help for economic activity for both interest (maslahah) and that obligation can be discussed by them. If the marriage is under the hands (sirri marriage), she needs to check whether the husband has marriage bond with other woman or not. If not, she needs to register her marital status quickly.
Eventually, what is your advice and criticism against the current Marriage Law and which parts need to be revised?
There are a lot of things need to be completed, among others, the scope. First is the scope of that law should be extended, not only on the matter of registration of marriage. The law needs reinforcement. So far, it has no legal force. Second is regarding the principle. I solely agree on the principle of monogamy, not polygamy. In my opinion, God created a human being, man and woman, regardless of their sex difference. He only concerns on the personal virtue (akhlakul karimah). We just need to refer to it for the purpose of giving equal rights, to ensure equality between the right of men and women in marriage. The principle of monogamy needs reinforcement, without giving any chance for polygamy despite by conditional. Third, it is necessary to strengthen the equal rights between man and woman. Let the couple determine their agreement in regard to the rights and obligations. They themselves need to set what becomes their rights and obligations. Fourth, it is necessary to give a penalty in case of violation, especially for the husband if he could not fulfill his obligation to earn a living. Fifth, it is also necessary to emphasize that man and woman have the same obligations in term of nurturing the children. Apart from any other problems, those are the main points need to be criticized related to the Marriage Law.