Marriage Law in Indonesia: Deconstructing the Concept of Women’s Rights Within Islam

[This is the ninth in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. These notes are NOT a transcript, but a lightly edited presentation of  my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of participants (other than mine) in the general discussion have been omitted by request of the conference director.]

“Marriage Law in Indonesia: Deconstructing the Concept of Women’s Rights Within Islam”

Shahirah Mahmood, University of Wisconsin – Madison

I want to show there are changes in the hermeneutic arguments with respect to polygamy [sic; Ms. Mahmoud uses the word “polygamy” in lieu of “polygyny” because she feels it is taken to mean marriage to multiple wives the general public]. Because Indonesia is neither a secular nor theocratic state, religion permeates the public space. Six religions are recognized by the state (Judaism, Christianity, Islam, Hinduism, Buddhism, and indigenous Indonesian religions). Muhammadiyyah (Qur’an and hadith) and Nahdlatul Ulama (NU, traditionalists) are the principal Islamic organizations. Marriage is at the juncture of public and private concerns. Women’s organizations are acting for reforms in ways that are new and puzzling. The want equal treatment in individual rights, but celebrate the differences. They oppose polygamy, out of court divorce, and non-support after divorce. Yet, they want men to be heads of households and responsible for women. How do they reconcile this?

They prefer the politics of alliance to the politics of autonomy. A cultural conception links women’s subjectivities to their motherhood roles and duties. An ethical-legal model of marital justice promotes women’s rights as mother’s rights to physical and emotional protection.

After independence, women lobbied for a marriage law. Previously a blend of customary and Shafi law covered marriage, but it was not codified. In 1959 the parliament debated two bills. The Soemari Bill (representing secular groups) would ban polygamy and the Ministry of Religious Affairs bill (representing the religious groups) would regulate it. A period of authoritarian rule followed.

The Soemari bill provided equal protection of men and women, of which monogamy was an example. Mothers as nurturer and fathers as providers is the mode of marriage, which is monogamous. But what about the rights of unmarried women? What of the rights of the children of unmarried women? Motherhood became a strategic feminist strategy. Both the religious and secular feminist groups articulated this motherhood model. Although secular, Mrs. Soemari quoted Qur’an in support of her position. Is it possible for a man to divide his affection between two or more women? The Muslim groups also treated “polygamy” as a permitted exception to a preferred monogamous model. When Suharto was in power 1966-98, he accommodated Islamic piety as long as it was subservient to an expanded bureaucracy.

Muslimat NU assembled in their 14th congress in 2000 separate from the NU meetings. “Polygamy” is permitted but conditional and discouraged by Qur’an and a hadith by Abu Hurairah. Four reasons have been offered to justify it in particular cases: the wife too ill to perform duties, the man is hypersexual, the wife is barren, or the husband is able to provide equal treatment to all wives; but in the case 2 (and case 3?) the wife must be eligible to seek divorce. Muslimah NU rejected the argument of men’s hypersexuality since the Qur’an says marriage defends from immorality and fasting is the fallback. Should a wife not relent to the husband’s decision she could choose to divorce him. This places happiness, welfare, and freedom above children. Their understanding has evolved since the 1950s.  The tools for contextual analysis of Islamic doctrine were not available to the women’s groups in the 1950s.  They now accept polygyny only under circumstances of personal emergencies.

 

Respondents.

Sarra Tlili, University of Florida. I will say negative things about modernity tomorrow, but I will say something positive now. In these ways it is provoking positive change, especially with regard to women’s issues: Equal in religion and equal in society. You did not mention in your presentation concerns that women not lose their femininity and men their masculinity.  The first wife of al-Mansur imposed as-sadaq al-qayrawâni upon him, that he could not take other wives or concubines. Polygyny was there for a reason, and if it comes back it will be for a reason. We know many women in polygynous marriages are there by choice. To Chris, there is a distinction between sadaqa and zakat. In Qur’an they are used interchangeably but not in the fiqh. I am bothered by the shaming of the recipient. It is empowering financially while crushing psychologically.

Samy Ayoub, University of Arizona. Why did polygyny become the battlefield when it is on the margins of society? Also why discuss polygyny in terms of male lust? There are more pertinent social issues. Also does the claim that without protection women are vulnerable mean that women were left vulnerable throughout the pre-modern period?

Mahmood. The Dutch introduced the marriage ordinance act that prohibited polygamy after the Anglo-Dutch treaty of 1824, when they also restricted the number of people who can go to Hajj. Polygamy became one of the highly politicized issues under the policy of quashing political Islam. In Java the practice of polygamy was high, with some men marrying more than four women.

General Discussion.

[Name withheld]. I don’t argue for polygyny, but how would you treat the issue that because of war and other things polygyny is an Islamic socio-sexual necessity?

[Name withheld]. Aisyiyiah, the other organization I studied, actually talks about the historical reasons for  polygamy. They argue that when such situations arise we can invoke darûrah (necessity) social and darûrah individual. The deputy chair of Muhammadiya said publicly that the principle of marriage is monogamy.  He said the men of Muhammadiya are not afraid of our wives, we are afraid of being unjust.

[Name withheld]. This is proposed state law debated. What is the current law?

[Name withheld]. Monogamy is the principle of marriage and four reasons for women to seek divorce and the grounds for seeking a second wife. Only financial equity is required, not emotional.

[Name withheld]. The word justice is invoked all the time. We assume everyone knows what justice is and that we all agree on it. Yet no one has defined justice, its objectives, or what is to be achieved. Then the only concept is the one advanced by Western society. Are we replacing one oppressive institution patriarchy with another, the nation-state? This march of modernity is bringing a Christian ideal of marriage even as the West moves away from monogamous marriage. Thirty years from now will we hear presentations on why gay marriage is fine and monogamy is not good in Islam?

[Name withheld]. The culture of motherhood was in Islam and then substantiated through the ethical legal model in Indonesia. Most of the Muhammadiyya members supported Suharto because he did not encroach on hajj and Islamic schools. Their numbers increased. But two reformist thinkers, Abdurahman Wahid of NU and Nurcholish Madjid of Muhammadiyah, talked about the ideas of reformist Islam and transcendental ethics. This is not a capture of female elites, parliamentarians. In passing the anti-DV laws, 30% of cases were men leaving women after marrying them out of court. The Muslim women’s organizations dropped their article on polygamy from the bill. It passed later as a present to the women’s groups from Megawatti as she was leaving office. They are not espousing monogamy as a model. They are wrestling with what women’s rights are. Do they rise above religion and culture? The organizations I follow do not see it this way. They are concerned with how policies affect others in society. Their main principle is bil ma`rûf. They want women’s welfare, her individual agency to choose, but are aware of the impact on future generations and above all to the state.

[Name withheld]. I would like to make a fatwa that everyone should get married but if they cannot get married for financial reasons I think zakat can be given to them.

Imad-ad-Dean Ahmad. We have polygyny in America, notwithstanding its illegality. There was woman who convinced her husband to take a poor friend of hers as a second wife. Soon after, the man admitted he was incapable of caring for both women equally and divorced the first wife.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

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