Expansive Legal Interpretation and Muslim Judges’ Approach to Polygamy in Indonesia

Abstract

Similar to other Muslim-majority countries, Indonesia has undertaken legislative changes in the domain of family law, including on polygamy. In practice, however, these legal reforms continue to be challenged by a number of judges, specifically those regarding polygamy. This paper looks at the extent to which judges meet husbands’ proposals for polygamy. It investigates judges’ legal interpretation of the legal grounds specified for polygamous marriage and how judges have deployed the notions of maslahah (public good) and mafsadah (harm), with a view to fortifying their legal decisions. It will be argued that the judges’ approach remains shaped by classical Islamic legal doctrine and that they subscribe to free and supplementary legal interpretation, or ijtihad, as well as contemporary notions of maslahah, resulting in conservative legal decisions that uphold gender asymmetries. It is also found that, even though many women may choose to share husbands rather than to be divorced, judges seem to ignore the fact that the practice of polygamy is detrimental to the dissolution of the marriage through wife-petitioned divorce.