Regulating Unregistered Polygamous Marriages in Indonesia

An Analysis through the Siyāsah Sharʿiyyah Framework of ʿAbd al-Wahhāb Khallāf

Abstract

Unregistered polygamous marriages (poligami siri) in Indonesia raise complex legal and social issues at the intersection of the permissibility of polygamy in Islamic jurisprudence (fiqh), the need for legal protection, and the authority of the state to maintain public order. This study aims to analyze the legal position of regulations governing unregistered polygamous marriages in Indonesia from the perspective of ʿAbd al-Wahhāb Khallāf’s concept of siyāsah sharʿiyyah, particularly through the concepts of maṣlaḥah mursalah and sadd al-dharā’iʿ. This research employs a normative legal method using statutory and conceptual approaches, based on a literature review of relevant legislation, the works of ʿAbd al-Wahhāb Khallāf, and pertinent Islamic legal scholarship. The analysis is conducted through a qualitative-normative approach by examining positive legal provisions concerning marriage registration and polygamy in relation to the principles of public interest (maṣlaḥah), the prevention of harm (mafsadah), and the authority of the ulil amri (legitimate governing authority). The findings indicate that the mandatory registration of marriage and the requirement to obtain judicial authorization for polygamy may be regarded as manifestations of siyāsah sharʿiyyah, as they are intended to ensure legal certainty, protect the rights of women and children, and prevent adverse social and legal consequences. From the perspective of sadd al-dharā’iʿ, unregistered polygamous marriages conducted without legal registration and judicial oversight have the potential to become a means through which mafsadah arises and may therefore legitimately become the subject of state regulation. Accordingly, ʿAbd al-Wahhāb Khallāf’s thought provides a normative basis for affirming that state regulation of unregistered polygamous marriages does not necessarily conflict with the permissibility of polygamy in Islamic jurisprudence, provided that such regulation is oriented toward the realization of maṣlaḥah, the prevention of harm, and the protection of the rights of affected parties.