Poligami Tanpa Izin Istri dalam Perspektif Fikih dan Undang-Undang Nomor 1 Tahun 1974 Tentang Perkawinan

Abstract

Polygamy is a marriage that has more than one wife at the same time, limited to only four people. This is based on the Koran surah an-Nisa' (4) : 3 and an-Nisa' (4) : 129 as well as the hadith of the Prophet. In the KHI and the Marriage Law, which essentially states that polygamy carried out without the consent of the wife and the court is considered invalid and results in legal action. The subject of discussion in this research is, First, regarding the regulation of polygamy in Islamic jurisprudence, KHI and Law Number 1 of 1974 concerning Marriage. Second, the legal consequences of polygamy carried out without the wife's permission. and Third, legal considerations and fiqh reviews of legal considerations in the provisions for polygamy permits. This research is library research, with a type of normative research, which is descriptive-analytic in nature. This research approach examines the provisions in fiqh, KHI, and the Marriage Law. This research describes and analyzes existing problems related to polygamy carried out without the wife's permission according to Islamic jurisprudence and laws and regulations in Indonesia. According to Islamic jurisprudence, polygamy is permissible provided it is able to act fairly. In Shafi'iyyah circles, this ability is not recommended and is not required even though it is legally permitted. Polygamy in Indonesian law is permitted with the condition that you must obtain permission from the wife and the Religious Court. Polygamy carried out without the permission of the wife and the Religious Court has no legal force and has legal consequences for a wife's position in the marriage being weakened. In legal considerations in decision No. 2246/Pdt.G/2023/PA.Bgl the applicant has fulfilled the cumulative and alternative requirements for polygamy in accordance with KHI provisions. Judging from these legal considerations, the risk of rejecting the Petitioner's application is greater in terms of the harm (damage) caused than the benefits. As the rule of fiqh says, "Preventing mafsadat takes precedence over taking mashlahat".