Articles 403 and 404 of the Criminal Code: Protecting Women from Secret Polygamy and Unregistered Marriages

These two articles have become the center of attention because they touch on practices that have often been seen as being in the realm of civil law, namely secret polygamy and unregistered marriages. On the one hand, some consider that criminal regulation in this area goes too far into private matters. However, on the other hand, these rules can also be read as a form of state alignment with those who are most vulnerable to harm, namely women.

The Polemic of Articles 403 and 404 of the Criminal Code

Articles 403 and 404 of the Criminal Code basically regulate two different things, but in social practice the two often meet in the same problem. Article 403 highlights the actions of a person who contracts a marriage without notifying the other party of a legal impediment, which then causes the marriage to be declared invalid. Meanwhile, Article 404 relates to the obligation to report important events, including marriage, to the authorized official.

If read separately, the two articles appear to stand alone. However, in reality in society, the two are often closely related. It is not uncommon for polygamy to be carried out secretly without the knowledge of the legal wife, and then continued through the practice of unregistered marriage so that it does not have to go through the official registration process. At this point, the problem is no longer just a private matter, but has the potential to cause concrete harm to certain parties.

Public reaction to the enactment of these articles has been varied. Some parties support it because they see it as a necessary instrument of legal protection. However, others reject it on the grounds that marriage is a civil event so the settlement should also be pursued through civil channels, not criminal. Views like this, including those voiced by the Indonesian Ulema Council, show that the debate over these two articles is not just about norms, but also about how the state views the boundary between private space and criminal law intervention.

In addition, it cannot be denied that in practice unregistered marriage is not always carried out to hide something. There are certain situations when someone faces administrative obstacles or problems accessing documents. However, the problem becomes different when unregistered marriage is used as a way to cover up polygamy carried out secretly. In such a context, unregistered marriage is no longer just a matter of administration, but can become a means of avoiding legal and social responsibility.

Protection of Women in Marriage Law

In the debate regarding Articles 403 and 404 of the Criminal Code, women are the party that needs the most attention. When a husband practices polygamy without informing his wife, the first loss is clearly experienced by the legal wife. However, the losses do not stop there. Other women who are married under religious law (nikah siri) are also in a vulnerable position because the marital relationship they are in does not have adequate legal certainty. In situations like this, two women at once can become victims of the same practice.

In fact, the direction of protection is also in line with Law Number 1 of 1974 concerning Marriage. The law affirms that every marriage must be registered according to the prevailing laws and regulations. In the case of polygamy, the law also places the court as the institution authorized to grant permission if a husband wishes to have more than one wife. Thus, the criminal regulations in the new Criminal Code do not stand alone, but are related to the legal framework of marriage which from the beginning requires transparency, registration, and legal control.

Indeed, there is a view that polygamy can be carried out without the wife's permission as long as it does not violate the legal requirements of marriage and the husband is able to act fairly. However, the issue does not stop at whether it is legally valid or not normatively. What deserves attention is the fact that polygamy without consent and without transparency actually presents a real injustice to women. When another marriage is carried out secretly, women are placed in a weak position, both emotionally, socially, and legally.

The facts on the ground also show that the practice of unregistered polygamy (poligami siri) is not a small matter. In data revealed by the Religious Court of Pasuruan City, out of 1,183 divorce cases handled throughout 2025, there were 48 cases triggered by the presence of other women in marital bonds that were not legally valid according to the state. According to the Head of the Religious Court of Pasuruan City, the majority of these practices were carried out through unregistered marriages (nikah siri). This data shows that secret polygamy not only causes moral polemics, but also has a direct impact on household rifts and real losses for women.

Therefore, the presence of Articles 403 and 404 of the Criminal Code can be understood as a form of state protection of women's rights in marriage. This rule does not prohibit polygamy absolutely, but affirms that marriage should not be carried out secretly and without proper registration. Permission, transparency, and registration are important elements to ensure legal certainty and prevent women from becoming victims of unequal marriage practices.

Support for this spirit of protection also comes from Komnas Perempuan (National Commission on Violence Against Women). The view that emphasizes the importance of marriage registration shows that legal administration is not just a formality, but an instrument of rights protection. Without registration, women risk losing the legal basis to claim their rights, both related to marital status, livelihood, the position of children, and protection when disputes occur.

In the end, the urgency of Articles 403 and 404 of the Criminal Code lies in the effort to close the loopholes that have allowed the practice of secret polygamy and unregistered marriages (nikah siri) to harm women. In that context, criminalization is not solely intended as punishment, but also as a warning that marriage should not be carried out in a way that sacrifices the rights of other parties. The state needs to be present not to interfere excessively in private matters, but to ensure that women do not continue to bear the consequences of unfair marital relationships.

From the perspective of protecting rights, the existence of these articles actually demonstrates that the state is trying to place women as legal subjects whose dignity and interests must be protected. Thus, the polemic that arises should not only be read as a debate about criminal or civil law, but also as a debate about the extent to which the law wants to stand on the side of women who have often been victims in the practice of non-transparent marriages.