Introduction
The bureaucratization of Islam in Indonesia has its roots in the early years of the independent state (post-1945), in particular through the establishment of the Ministry of Religious Affairs in 1946. Kathryn Robinson argues that this moment “was the first in a series of strategies by the state to ‘capture’ Islam, rather than have Islam capture the state.”Footnote 1 Sezgin and Künkler argue that governments are often interested in managing religion for the sake of nation-building.Footnote 2
The bureaucratization of Muslim marriages through the process of marriage registration is a major component in the bureaucratization of Islam. The government uses well-known rhetoric to justify this bureaucratization project, namely to protect the rights of vulnerable citizens—especially women and children—and to ensure public order.Footnote 3 The bureaucratization of Indonesian Muslim marriages was considered a significant move—particularly by women activists and women's organizations—to emancipate family lawFootnote 4 from the “anti-egalitarian provisions of Islam.”Footnote 5
Drawing on one year of fieldwork conducted in 2016 in Jakarta, Indonesia, this article concentrates on the most recent attempts of the government to bureaucratize Muslim marriages—in particular relating to the increasing presence of online nikah siri (secret marriage) agencies—and the responses towards these efforts. Scholars such as Eisenstadt, Gouldner, Janowitz, Wright, and Delany have emphasized the ambivalent societal responses towards state bureaucratization projects.Footnote 6 In independent Indonesia's history, too, a tension can be observed between those who support and those who oppose the process of bureaucratization of Muslim marriages at the level of state governance.
Following Eisenstadt's suggested lens, this study focuses on the context that has given rise to the current process of the bureaucratization of Muslim marriage. Eisenstadt argues, “the conditions determining the effects of bureaucracy's political neutrality vary in different countries, and one of the main problems facing the comparative study of bureaucratic organization is to elucidate these situations.”Footnote 7 Those who believe in the importance of state registration of Muslim marriage emphasize that it is an integral part of social reform. However, it has also been seen as creating problems when it only serves the interests of the majority and stands in the way of minority religious understandings, particularly some conservative Muslims who believe that marriage within the Muslim community should be dealt with by Islamic scholars (ʿ ulamāʾ) and not the state. This article, therefore, argues that unregistered marriage has been the real test of the bureaucratization of religion in Indonesia. The government's effort to demonstrate its Islamic credentials by accommodating the people's religion has led it to assume an ambiguous position on the issue of unregistered marriages.
Types of Unregistered Marriages
Secret marriage has been practiced by Indonesian Muslims for decades. Secret marriages are a particular kind of unregistered marriages.Footnote 8 Notably, the number of unregistered marriages in Indonesia remains high. According to the nongovernmental organization Empowerment for Female Headed Households,Footnote 9 the number of Indonesians who conducted nikah siri in 2012 reached 25 percent of the total marriages.Footnote 10
Secret marriages are understood by many Muslims in Indonesia as a form of marriage that is permitted in Islam but not officially recognized by the state. Unlike official marriages, secret marriages are not registered with the Office of Religious Affairs (in the case of Muslims) or the Office of Civil Registry (where Indonesia's recognized minorities—Christians, Hindus, Buddhists, and Confucianists—register their marriages).Footnote 11 Since March 2015, Indonesia has been stirred by news regarding the growing practice of online secret marriages. Observers and critics have blamed the weak enforcement of the Indonesian Marriage Law for enabling the flourishing of online secret marriage.
The existing presence of unregistered marriages has contributed to the infamous image of Indonesia's bureaucratic administration. Muslim marriage registration has been one of the targeted domains of bureaucratic reform within the Ministry of Religious Affairs. Through Presidential Regulation Number 81 of 2010, the Ministry of Empowerment of State Apparatus and Bureaucratic Reforms launched the Grand Design of Bureaucratic Reform 2010–2025, aimed at improving the Indonesian government to a world class standard of professionalism. Muslim marriage registration, however, is still considered a serious problem, especially due to the presence of Indonesian Muslims who still opt for unregistered marriage. Internal and external pressures have created ambivalent perceptions towards the bureaucratization of Muslim marriages in Indonesia. Eisenstadt mentions that to ensure a bureaucracy can perform efficiently, “Its members must have some professional orientations and standards and be immune to various inside and outside pressures.”Footnote 12 The discussion of the bureaucratization of Muslim marriages in Indonesia reflects the presence of ambivalent attitudes within the government when dealing with internal and external pressures.
Unregistered marriages take place for several reasons, and not all unregistered marriagesFootnote 13 are secret. Examples include child and early marriages, which are often unregistered although not necessarily secret. These are often conducted as religious marriages, as opposed to registered marriages.Footnote 14 If an underage couple has conducted religious marriages and wants to proceed with registration, they will have to receive permission from their parents, who must lodge a written application to the religious court to obtain dispensation. Parents’ consent is mandatory for underage marriages in Indonesia's family law (both Islamic and civil family law).
Another example is temporary marriage (nikah mut'ah or nikāḥ al-mutʿa) practiced only among Shi'ite Muslims, a creed that does not officially exist in the eyes of Indonesian law, which treats all Muslims de jure as Sunni. Therefore, temporary marriage cannot officially be registered because it also does not exist in the eyes of Indonesian law.Footnote 15
Secret Marriage (Nikah Siri)
The level of secrecy among secret marriages can differ from one case to another, depending on to whom these marriages are secret.Footnote 16 One common type is marriage without the bride's guardian (pernikahan tanpa wali). This is conducted when the bride's guardian does not agree with his daughter's choice or the couple do not want to involve their families, especially their parents, in their marriage. These marriages are usually conducted by special agencies, such as an illegal registrar, two witnesses, and a substitute guardian provided by the agencies or illegal registrars.
A second type of nikah siri is a secret usually maintained by immediate family, close friends, and the religious leader who is responsible for the ceremony of a marriage contract. This second type is usually conducted by young couples who want to go beyond conventional dating but are not ready to marry officially and make their union public. Therefore, this type of nikah siri is seen as a bridge before a couple officially registers their marriage. This decision is generally considered a solution to the parental dilemma of wanting to postpone the official marriage of their offspring while simultaneously wanting to prevent the offspring from engaging in immoral acts, such as premarital sex (zina). A couple who are still continuing their studies and are not ready to start a family, for example, often choose this option.
A third type of nikah siri is the loosest type, meaning that it is widely known in the local community and is considered to be nikah siri merely in the sense that it is not registered. This kind of nikah siri is usually undertaken by older people or those who are destitute and living in rural and poor urban areas. Mostly, it occurs to avoid the cost of marriage registration, or out of ignorance about the law, that is, the obligation to register the marriage with the state.
A fourth type of nikah siri has a higher level of secrecy and is used by some civil servants who want to practice polygyny even though polygyny has been forbidden for civil servants since 1983 (unless they can produce permission from superiors,Footnote 17 as well as the first wife).Footnote 18 So in order to circumvent the law, some civil servants engage in secret marriage with a second or third wife.Footnote 19
Indeed, the most hotly debated issue regarding siri marriage in Indonesia relates to the secret marriages of government elites.Footnote 20 The most recent case of such marriage under public scrutiny occurred in 2012, when an active Garut Regent, Aceng Fikri, married a seventeen-year-old girl in an unregistered Islamic ceremony and divorced her four days later via text message. The case became a national issue and warranted the attention of Indonesia's president, who asked the home minister, Gamawan Fauzi, to investigate the case. Fikri was found guilty of breaching some laws, especially Marriage Law No. 1 of 1974, art. 2 (2), which states, “Every marriage is required to be registered according to the applicable regulations.”Footnote 21 As a public figure, Fikri was widely considered to have tainted his reputation in the eyes of his community, both by marrying a girl who had just turned seventeen years (one year above the minimum marriage age) as a second wife without registering the marriage, and by divorcing her disgracefully via text message.
Unregistered Divorce
It is important to note that unregistered marriages are sometimes the result of unregistered divorces. A divorced person is required to provide a letter of divorce during the registration of his or her second marriage. Failure to acquire this letter has prompted many couples to pursue unregistered marriages. In addition, some couples believe that at some point in the future they can register their existing unregistered marriage through a court procedure, itsbat nikah, a request for confirmation of existing unregistered marriage. Ibu Hanisa, a fifty-year-old divorcée who recently remarried, for example, said,
We have not registered our second marriage, Mbak [sister]. I asked my [new] husband, but he said it is okay for the time being because both of us do not have divorce letters [from our previous marriages]. We believe that one day we can register our marriage, especially because we saw on TV currently there have been some nongovernmental organizations that can help people like us to get itsbat nikah.Footnote 22
As indicated by Ibu Hanisa, couples who conduct itsbat nikah Footnote 23 (confirming an existing unregistered marriage) do so because they have not yet registered their marriage. Itsbat nikah is regulated by the Compilation of Islamic Law (Kompilasi Hukum Islam), art. 7, no. 2, which states that “in the case of marriage that cannot be formalized with a marriage certificate, the couple can propose itsbat nikah in a religious court.”Footnote 24 There are numerous causes behind the decision not to register marriage in the first place, although most are due to having secret marriage or child marriage. In addition, there have been a large number of cases in which couples conduct itsbat nikah to confirm their rights, especially before divorcing their siri marriage spouses.Footnote 25
The trend of itsbat nikah began flourishing in the year 2012, after the emergence of mass itsbat nikah organized by nongovernmental organizations. Widely known as itsbat massal, this is a free service, usually over one day, provided by the religious court to accommodate the confirmation of Muslim marriages for couples who meet the requirements to have itsbat nikah. As mentioned in the Compilation of Islamic Law, art. 7, no. 3, “The ‘Itsbat Nikah’ which can be claimed to the Islamic Court is restricted to the case of; a. a marital status for the purpose of divorce; b. loss of the Marriage Document; c. an ambiguity about the validation of one of the conditions in the marriage; d. a marriage [conducted] before the issuance of Law No. 1 of 1974 and; e. a marriage [conducted] by those who have no impediment to marriage according to Law No. 1 of [1974].”Footnote 26 The practice of itsbat nikah by public figures—especially actresses, actors, and singersFootnote 27—has also contributed to the popularity of itsbat nikah.
Bureaucratization: History of Action and Actors
Broadly speaking there are four groups with opposing or contradictory views involved in the process of establishing legal rights and obligations regarding Muslim marriages: the government or state, religious leaders, women's rights activists, and legal activists.
Government: State Laws
The first of the Indonesian government laws relating to marriage were introduced during the time of state formation, in the 1940s. The debate regarding marriage registration resulted in the birth of Law No. 22 of 1946 requiring all Indonesians, regardless of faith, to register their marriages, reconciliations, and divorces.Footnote 28 The plan of the early post-Independence governments was to develop one civil law applicable to all Indonesians, irrespective of religious identity.
In this section, I examine in some detail two major pieces of legislation: the 1974 Marriage Law and the 1991 Compilation of Islamic Law. I follow this with a brief outline of the most recent laws relating to Muslim marriages and the government's moves toward sanctions.
The 1974 Marriage Law
During the New Order regime (1966–1998), President Soeharto introduced a unified (civil) marriage law, Law No. 1 of 1974, known as the first Indonesian Marriage Law, consisting of 14 chapters and 67 articles. Based on art. 2, no. 2, Muslims have a legal obligation to conclude their marriage in the presence of a marriage registrar. The article states, “Every marriage is required to be registered according to the applicable regulations.”
The formation of the 1974 Marriage Law in Indonesia signaled an effort by the government to bureaucratize religious marriages. According to Cammack, Young, and Heaton, before the 1974 Marriage Law was promulgated, Muslim marriages were administered by “unamended rules of Islamic law … . Prior to 1974 there had been no legislative interference with the substance of Islamic marriage rules.”Footnote 29 The 1974 Marriage Law, which can be regarded as part of the bureaucratization of religion, indeed serves the government's post-Independence project to unify diverse particularistic laws and customs followed by the population by introducing this legal centralism.Footnote 30
In view of Eisenstadt'sFootnote 31 insistence on the importance of examining the conditions that shape the development of bureaucratization, it needs to be emphasized that the conditions leading to the birth of the 1974 Marriage Law were rich in political nuance. The New Order, particularly from the 1970s onward, had been persistent in marginalizing diverse expressions of Muslim politics to strengthen its hegemony.Footnote 32 Therefore, the draft law produced in 1973, a civil draft law that would have applied to all Indonesians equally irrespective of religious identity, was severely criticized by Muslims who believed that the bill was aimed at marginalizing Islam, Islamic law, religious courts, and Muslim interests, especially given that some contents violated aspects of Islamic law.Footnote 33 The divergence between this bureaucratization effort and the voices of its opponents demonstrates how state religion was not at that time in line with the people's religion, which also mirrors what Richard Antoun mentions as being the ambivalent relationship between state religion and people's religion.Footnote 34 Three examples in which this divergence can be seen from the draft law are the issues relating to intermarriage legislation, polygyny, and the position of the Islamic court.
In the case of intermarriage legislation, article 11 of the draft law relating to interreligious marriage, stated, “Differences of nationality, ethnic group, country of origin, place of origin, religion, belief, and descent are not an impediment to marriage.”Footnote 35 Some Muslim communities suspected that this was part of a Christianization project.Footnote 36 Societal opposition resulted in a revision of the bill, including the annulment of the intermarriage legalization.Footnote 37 The second main area of divergence was the strict regulations surrounding polygyny, which was also criticized by the ʿ ulamāʾ, who argued that the regulations contradicted Islamic teachings because they believed that it is permissible in Islam.Footnote 38 The ʿ ulamāʾ were in favor of retaining polygyny. Finally, the bill was criticized due to the assumption that it was aimed at marginalizing the role of Islamic courts and institutions over civil administration and general courts, especially in relation to the civil registration of marriage.Footnote 39
The law that was finally passed in 1974 differentiated between civil marriage (for all the recognized religious minorities) on the one hand and Muslim marriage on the other. It stipulated the same criteria for Muslim marriage that applied to non-Muslim marriage but made a distinction between marriages that were valid and those that were legal.
The major issue that remains significant to this day is the issue of the validity and legality of marriage. This is a major tension that the government continues to face. For a marriage to be valid, it needs be officiated by an ‘alim (Muslim authority). However, for a marriage to be legal, it must be registered with a marriage registrar or state-appointed penghulu (Pegawai Pencatat Nikah). Siri marriages are often valid if officiated by an ‘alim, but they are only legal once they are registered—at which point they cease to be siri (secret).
The Compilation of Islamic Law
On June 10, 1991, Indonesia witnessed a new phase of the bureaucratization of Islamic law through the birth of the Compilation of Islamic Law, regulating marriage, inheritance, and endowments, via Presidential Instruction No. 1 of 1991.Footnote 40 The Compilation of Islamic Law served as a guide for religious courts in Indonesia. However, the context behind the enactment of the law related to the political conditions at the time. Many Muslims believe that this was the winning point of their long struggle to enforce Islamic law in Indonesia. According to Bowen,Footnote 41 the Compilation of Islamic Law is also part of the nationalization of Islamic law and the process of Islamization, along with the earlier presence of Islamic courts, and a sign of the increasing importance of Islam in Indonesia. The birth of the Compilation of Islamic Law can be regarded as the effort of the state, specifically the New Order government, to amend its relationship with Islam, as earlier the New Order had treated Islam with “hostility, manipulation, and marginalisation.”Footnote 42 This demonstrates a change in the government's attitude.
As a state-issued guideline on the interpretation and application of Islamic law in the country's Islamic courts, the Compilation of Islamic Law signaled a strong effort of the authoritarian government to bureaucratize Muslim marriage. The very condition of the country at that time had made this growth and development of bureaucratization of Muslim marriages conducive. The political nuance behind the birth of the Compilation of Islamic Law is resonant with Eisenstadt's view on the relationship between bureaucracy and power. Eisenstadt says, “Thus we find that in societies, or sectors thereof, where any given group establishes a power monopoly over parts of its environment, this group may use the bureaucracy as an instrument of pure power and manipulation, distort its autonomous roles and professional orientation.”Footnote 43
The discussion of marriage registration in the Compilation of Islamic Law, reaffirms earlier 1974 regulations: art. 5, no. 1, for example, states, “To guarantee the order of marriage for Muslims, every marriage must be registered”; and art. 5, no. 2, states, “The Registration of marriages as stated in point (1) conducted by the Marriage Registrar as stipulated in Law No. 22 of 1946 jo [juncto or in conjunction with] Law No. 32 of 1954.”
Recent Legislation
Most recently, the regulation has been reaffirmed in Undang-Undang Republik Indonesia [UU] [Law of the Republic of Indonesia] No. 23/2006, art. 3 juncto (in conjunction with) art. 1, no 17, on population administration, which states that marriage is one of a number of important events that have to be reported.Footnote 44 Based on UU No. 23/2006, art. 90, no. 1(b), the administrative fine for those who do not report their marriages within a maximum of sixty days of the marriage date (or thirty days from their return to Indonesia if married outside of Indonesia) is maximum 1 million rupiah (USD 75). However, it should be noted failure to register a marriage is not considered a criminal offense.
Government: State Sanctions
Despite these laws, however, siri marriages are prevalent due to a number of “supportive conditions.” The government's ambivalence towards imposing sanctions is illustrated by siri marriages conducted by two different types of marriage registrars.
First, there are cases in which licensed penghulu or marriage registrars (Pegawai Pencatat Nikah), who are civil servants of the Ministry of Religious Affairs—working at the Office of Religious Affairs (Kantor Urusan Agama, or KUA), the office that registers Muslim marriages—marry couples in siri marriage.Footnote 45 In other words, the very officials—state-appointed penghulu whose function it is to officiate marriages—are not implementing the law, and worse, are violating it by marrying couples in siri marriage. The sanctions for such a practice are heavy. The Inspectorate General has implemented diverse sanctions ranging from reprimands and demotions, to termination of employment.
However, if those who marry a siri couple are penghulu liar (literally “wild registrar” or “unregistered registrar”—that is, they are not licensed penghulu), they cannot be sanctioned. Couples who have this kind of unregistered marriage are not prosecuted. The minister of religion, Lukman Hakim Saifuddin, admitted that the government cannot undertake prosecution or sanctions, except the administrative sanction mentioned above, against offenders because a marriage that is valid from a religious point of view cannot be considered a criminal offense.Footnote 46
The discussion of marriage registration in Indonesia often ends in deadlock because failing to register a marriage is not considered a criminal offense. However, there have been some recent efforts undertaken to prevent frequent occurrence of unregistered marriage, such as a proposed bill, Material Law of Religious Court in Marriage (Rancangan Undang-undang Hukum Materiil Peradilan Agama Bidang Perkawinan). Article 143 of the proposed bill states: “Anyone[Footnote 47] with the intention to conduct marriage not in front of the Marriage Registrar as mentioned in art. 5, no. (1) shall be subject to a fine of not more than 6,000,000 (six million rupiah [USD 455]) or sentenced to a maximum of 6 (six) months.”Footnote 48 The illegal marriage registrar that is involved in this practice will be sentenced to a maximum of three years of imprisonment.
Although this proposed bill can be regarded as progress in the eyes of progressive Muslims and women's rights activists, to date the bill has not been passed as law. The status of the proposed bill has caused many to criticize the government for what they perceive as a slow movement in responding to rules relating to unregistered marriages.
Opponents and Proponents: Religious Leaders, Women's Rights Activists, and Legal Activists
The plan to turn the proposed bill, mentioned above, into law has generated significant protests from the opponents of the bill, who are mostly conservative religious leaders. They argue that the bill is against the sharīʿa. In other words, it forbids something that is permissible by God. They argue that a marriage is valid as long as the contract follows religious requirements. They also argue that it is not realistic to forbid siri marriage when free sex and adultery is often regarded as a human right and those who are involved are not sanctioned.
On the other hand, the proponents of this bill, mostly women's rights activists, argue that nikah siri will harm women and the children born from these unregistered marriages, because the government cannot guarantee their rights. The proponents also argue that this kind of marriage can create fitnah (in this context it refers to negative assumptions) within communities.
Women's rights and legal activists have argued that unregistered marriage can result in placing women in vulnerable situations. Van Huis and Wirastri outline how Indonesian women's organizations, such as the National Commission on Violence against Women,Footnote 49 the Legal Aid Institute for Women,Footnote 50 Muslimat NU,Footnote 51 and RahimaFootnote 52 underscore the negative side of unregistered marriage for women as well as their children.Footnote 53 Unregistered marriage breaches the Act of the Protection of Women and Children.Footnote 54
Online Nikah Siri
Online nikah siri evolved from the development of sophisticated media technology and the fact that more Muslims are becoming tech-savvy. The business of online nikah siri has become increasingly popular, particularly given the rise in smartphone use, mobile data plans, and low internet costs, which have enabled more users to participate online. Although, there is no reliable evidence on the number of online nikah siri agencies, the increased presence of these agencies have been noted by media outlets in Indonesia,Footnote 55 becoming headlines in some Islamic magazines and Islamic based newspapers. The practice began generating media attention in March 2015, although a number of pioneers in the industry established their businesses in 2013.Footnote 56 In addition, those who started online nikah siri businesses are not new to the industry. Ustadz Rahmad (pseudonym), a fifty-seven-year-old man, for example, says,
My service is not new, Mbak Eva [sister Eva]. I have helped people since long ago. Initially, it was just a nikah siri service. I started this online nikah siri service because of the demand. Today's people are using the internet in their daily lives, including in arranging their nikah siri.Footnote 57
Others offering online nikah siri services express similar points of view. Owners of agencies relating to online nikah siri have taken advantage of the boom in the use of the internet, especially social media in Indonesia, and they have utilized this opportunity to develop and advertise their businesses.Footnote 58
When the issue of online nikah siri became prominent, the supporters of this nikah argued that the form of marriage does not violate religious teachings. Indeed, supporters express the belief that this form of marriage helps to discourage sex outside marriage (zina).
There are two types of online nikah siri. The first, akad or ʿaqd (marriage contract), is conducted face to face between the guardian of the bride, provided by the business operators, and the groom. However, business operators have actively promoted their businesses online. Although the advertisement that they have on their websites mainly focuses on the service of online nikah siri, outsiders often see it as a Muslim dating site. This kind of assumption is not totally misleading, given that some agencies also provide the service of finding Muslim partners.
The second practice of online nikah siri occurs when the marriage contract is conducted entirely online with the help of media, particularly Skype, video calls, and teleconferencing.Footnote 59 The prospective bride and groom do not have to meet the illegal marriage registrar of the online nikah siri business. Rather they merely contact the online siri marriage service after which everything is organized by the service.
Both of these practices present significant problems. In relation to the first kind of marriage, a problem lies in the issue of the guardian of the bride (wali nikah).Footnote 60 In the case of online nikah siri the guardian is most likely not to be the father of the bride (not wali nasab). Rather, the agencies or illegal registrars provide the guardian. Usually, the guardian is an employee of the agency who they claim to be a wali hakim. Wali hakim is appointed by the government and works in the name of the government institution, not the individual. Therefore, the claim by the online nikah siri business operators that they use a wali hakim is misleading. At this point in time, this kind of practice is considered illegal in Indonesia, based on Compilation of Islamic Law, art. 20, no. 2, which states that wali nikah (a marriage guardian for the bride) consists only of wali nasab or wali hakim.
The second problem lies in the fact that the penghulu—the person in charge of the marriage ceremony—considered as a penghulu liar, might be an ustadz gadungan (illegal ustadz, someone who claims to be an Islamic authority, but is not).Footnote 61 At this point, the motivation of these businesses becomes evident, especially given that the cost of this type of marriage is relatively high in comparison to conventional marriage, with the cost running at about 2.5 million rupiah (USD 189). In contrast, a marriage conducted in the Office of Religious Affairs is free of charge, and when conducted outside the office or on a weekend, the fee is 600,000 rupiah (USD 45).
The government, through the Directorate General of Guidance of the Muslim Community (Direktorat Jendral Bimbingan Masyarakat Islam), known as the Ditjen BIMAS Islam, has taken steps to fight against the practice of online nikah siri. The Directorate General has ordered the Ministry of Communication and Information Technology to block websites offering online nikah siri services. Nevertheless, to date a number of services are still accessible. The contact numbers for online nikah siri remain readily available on the internet and the phone numbers remain active.
Eisenstadt argues that “the establishment of new independent states with new power centers, as well as mounting governmental regulation in recent years, also draw attention to the problem of bureaucratization.”Footnote 62 In Indonesia, the problem of bureaucratization of Muslim marriages is also encountered when the government strives to apply its regulation, as discussed above—the introduction of the 1974 Marriage Law and the 1991 Compilation of Islamic Law—to the most current governmental effort to counter the increasing number of online nikah siri. A significant problem concerning online nikah siri that the Directorate General faces is the presence of fake marriage books (buku nikah palsu). Pirated marriage books are usually produced because Indonesians may be reluctant to register their marriages on their own, leading married couples to utilize the services of brokers (calo) to register their marriages with ease. There have been a number of reasons why couples prefer to have fake marriage books. According to Lilih Rahmawati from the Directorate General, the main reason is to avoid the bureaucracy involved in registering marriage at the Office of Religious Affairs. Lilih says, “They want to have a shortcut, so they prefer to buy a fake marriage book.”Footnote 63 Buying a fake marriage book is particularly common for those who want to have an illegal polygynous marriage.Footnote 64 If the broker is reliable then an authentic marriage book will be provided, however if the broker is unreliable then a pirated marriage book will often be provided.
The Story of a Penghulu: “Saya Membantu Orang” (I Help People)
Ustadz Ali (pseudonym) started his nikah siri businessFootnote 65 in Jakarta in 2000. With a strong religious background, Ustadz Ali graduated from the Department of Islamic Law, State Islamic University, Syarif Hidayatullah Jakarta. Besides Ustadz Ali, other owners of agencies or illegal registrars (penghulu) are also religiously educated, graduating from madrasah (Islamic schools) and pesantren (Islamic boarding schools). During the interview Ustadz Ali emphasized several times that he intends to help others through his business activities, “Saya membantu orang, Mbak Eva” (I only help people, Sister Eva).Footnote 66 He has had clients not only from Indonesia but also from Jordan, Malaysia, Singapore, and Brunei. According to Ustadz Ali, most of his clients are men who want to conduct polygynous marriage. In the majority of Muslim countries, the main motivation behind siri marriage is polygyny.Footnote 67 Annelies Moors, in her study of unregistered marriage in some Muslim majority countries in the Middle East, mentions that polygynous marriages may be unregistered in order to keep them a secret from the first wife.Footnote 68 In Indonesia, this fact has been mentioned frequently by government officials of the Directorate General of Guidance for the Muslim Community.
When questioned about his views on those who oppose him, Ustadz Ali pointed at the position of Indonesian feminists. He said,
You know Mbak Eva, those who oppose us, especially Ratna Sarumpaet (an Indonesian feminist), are working with non-Muslims, particularly Jews. They want to do harm to Islam. Therefore, these NGO activists, who often receive funds from Western countries, keep saying “pity those who have experienced unregistered marriages.” For me, Mbak Eva, this kind of marriage is a private matter.Footnote 69
Ustadz Ali believes that his actions serve to positively benefit the couples, including women. He added,
Each time, I help them. I tell the women that they have to be prepared to be the second, third, or fourth wife. This means that they have to be prepared for the possibility that the husband will prioritize the first wife. I tell them that if they are not ready to be the second, third, or fourth wife then I will not help them.Footnote 70
Ustadz Ali's advice to prospective brides—which he often repeated during the interview—is that the second, third, or fourth wives should understand that the first wife may always be prioritized by the husband, does not sound Islamic. Polygyny in Islam emphasizes the equal treatment of all wives, regardless of their position as first, second, third, or fourth. This is, in particular, based on the main teachings of the Qurʾān 4:3, “but if you have reason to fear that you might not be able to treat them with equal fairness, then [only] one”Footnote 71 A husband in a polygynous marriage should be able to uphold true justice for all of his wives, regardless of their positions.Footnote 72 Ustadz Ali's statement also demonstrates that most women who utilize his services are positioned as the second, third, or fourth wife. He also admitted that most of the men who performed unregistered marriage either already have or want to have a polygynous marriage without telling their first wife. Ustadz Ali said that he also warns the male clients prior to conducting the marriage. He stated,
I also say to the men: you have to be ready materially and immaterially (lahir dan bathin). If you are not ready to please and take care of your wives, I will not help you.Footnote 73
The duration of this kind of marriage, according to Ustadz Ali, is not usually long; the main reason being that often the new wife is not ready to face the pressure of being a second, third, or fourth wife. The ustadz also argued that, prior to marriage, he warns women about the risk of having an unregistered marriage, which could leave women and possible offspring without legal rights in the case of divorce.
A leaflet distributed by the Legal Aid Institute for Women in Jakarta (Lembaga Bantuan Hukum Asosiasi Perempuan Indonesia untuk Keadilan) also explains that in unregistered marriages, the wives
cannot enforce rights attributed to a legal marriage, such as nafkah (livelihood) during the marriage, marital property in case of divorce, or inheritance in case of death of the husband. Secondly, due to the unclear status of their marriage they often have to face the stigma of being a “dishonourable woman.” Thirdly, children resulting from unregistered marriages will be considered the legal children of their mother only and as a result they only have a civil relationship with their mother and her family.Footnote 74
When Ustadz Ali was asked whether he is aware that his business might be seen as breaching family law in Indonesia, he responded,
I am marrying them religiously. What is important to note is I do not issue a statement letter,[Footnote 75] because this kind of letter is dangerous. Religiously this kind of marriage is valid. In my opinion, what I have been doing is merely helping them. This is the way the government should fight against prostitution. I think it is also important to introduce this option to prostitutes and encourage Muslim men to marry them. This will be more useful for them, so they do not have to sell themselves.Footnote 76
Ustadz Ali's response and position demonstrates one voice among diverse voices of the people's religion. His explanation shows the expression of an individual who espouses a worldview different from that of the government and its bureaucracy.
Ustadz Ali emphasized that he does not offer dating agency (biro jodoh) services and does not marry people of different religious traditions. He also highlighted that the technical procedure of this marriage is Islamic. He said that during the offline akad, he usually requests the bride to remain in another room or wear a cadar (face veil), so that the groom cannot see his bride prior to the marriage contract being finalized.
A seemingly non-Islamic aspect of Ustadz Ali's business can be seen from the way he appoints a wali (legal guardian) for the bride. Ustadz Ali provides a wali from his staff. As discussed above, this kind of practice is considered by many Islamic scholars as violating an Islamic teaching on requirements for choosing a wali. Most of Ustadz Ali's clients discover his services from the internet or are referred from within his clients’ friendship networks. The witnesses of marriage and wali are generally friends of the couple. Despite media attention, Ustadz Ali's business is still operating successfully, and he believes this is because his intention is to help his fellow Muslims.
The Story of Nadya
Nadya, a thirty-three-year-old woman, was an online siri marriage client. Nadya, who works in a karaoke lounge in Jakarta, admitted that she was not the only person in her circle of friends who has practiced online siri marriage. Nadya married a man who was a long-standing customer of the lounge via online siri in order to prevent her from committing zina. Additionally her husband-to-be, Yanto, did not want to marry her legally through conventional marriage because he was already married and did not want to seek the consent of his first wife. Yanto said, “I could not marry her legally, Mbak Eva, because I am sure that my wife will not let me marry again and the court will not issue a permission for me.” As a consequence, Nadya and Yanto chose to get married online. The fact that women who conduct online siri marriage often work in karaoke lounges and bars has given birth to strong prejudice toward this kind of marriage, with the prevailing opinion that online nikah siri is akin to “undercover” prostitution. Women's rights activist Dina, thirty-three years old, states,
It is very sad to face the fact that many people use religion for their own benefit. What is the difference between prostitution and this kind of marriage? Some couples even met because they were initially staff and customer. It is undercover prostitution!Footnote 77
The concept of zina, which has been used as the main motivation for those who want to conduct online siri marriage, has been questioned by those who oppose the practice. Many critics argue that this kind of motivation is merely used to camouflage the main motivation, namely sexual pleasure.
It is noteworthy, however, that those in the business of online nikah siri practice openly in their surroundings. Muslim communities in Indonesia seem reluctant to control such a practice, given that the penghulu who is responsible for the marriage is usually called an ustadz (religious teacher), which signifies someone who is honored in his community. They are usually known in their local areas as having certain “religious capital,” to borrow Pierre Bourdieu's concept, which implies that they are well-versed in Islamic knowledge, especially in Islamic law.
Bureaucratization: A Real Test for the Indonesian Government
Online nikah siri which has recently been covered by the media and has become a hotly debated topic, has caused tension for the Indonesian government, especially for the Directorate General of Guidance for the Muslim Community of the Ministry of Religion, whose responsibility encompasses Muslim marriages.
The current challenges cover two levels. First, following Eisenstadt'sFootnote 78 view on bureaucracy and bureaucratization, the challenge relates to the context of the environment: the tension between people with businesses in the online nikah siri industry, conservative religious leaders, women's groups, legal activists, and the Indonesian government—who aim to bureaucratize in order to maintain social order.
Responding to the currently hotly debated issues relating to unregistered nikah siri and online nikah siri, the Directorate General has communicated its position, namely that marriage registration is a must. Therefore, online nikah siri has to be banned. During an interview on the phenomenon of online nikah siri, the director general of BIMAS, M. Machasin, emphasized,
Marriage is a religious matter. If it is carried out according to the terms and conditions, then the marriage is still valid. The main reason often mentioned [by those who conduct online nikah siri] is because the person involved does not want to complicate her/himself by having their marriage registered in the KUA. However, it must be noted that we live in a society. There are rights and obligations which must be protected. Marriage is not just about the relationship between two people, but also about social order that requires the presence of the state.Footnote 79
Machasin's emphasis on social order is a typical rhetoric used by bureaucrats to socialize their bureaucratic apparatus (see the introduction of this volume). However, this kind of government position, namely mentioning the validity of nikah siri from a religious perspective while at the same time trying to introduce a new bureaucracy is seen by many, especially women's rights activists, as ambiguous and weak. Echoing Machasin, Lilih Rahmawati says,
Marriage is the right of citizens, meaning that the government cannot be too regulatory and forceful in the following of certain rules, especially given that, in terms of nikah siri, there is no rule relating to its prohibition.Footnote 80
This dilemma can also be easily found among other government elites, particularly when a statement is launched that is opposed by conservative groups. There is often a tendency to play it safe; that is, there is caution to avoid antagonizing conservative Muslim groups.
This phenomenon relates to the second level that challenges bureaucratization, namely the development of an Islamic resurgence that has swept the country. Both parties, the government and conservative Muslims who support online nikah siri and nikah siri, in general, need to demonstrate that they have the proper religious understanding that unregistered online nikah siri is valid from a religious perspective. Here lies the ambiguity in the government's effort to bureaucratize Muslim marriages. The effort to develop modern Indonesia by introducing various bureaucracies has to face problems of accommodating diverse voices of Islam. The government need to demonstrate their legitimacy and credibility as the guardian of the proper understanding of Islam, which in this context means that they need to admit that marriage with or without registration is valid in the eyes of God. Therefore, what we can see here is the “Islamisation race,” to borrow Liow's term.Footnote 81 The government needs to demonstrate their credibility in front of an increasing number of Indonesian Muslims who are keen to accentuate their piety. The rise of piety that has swept the country, which is in line with the growing number of middle class Muslims, has led the government to be extra careful when facing Muslim groups using “religious language” or when attempting to show understanding of their struggles.
BIMAS has tried to make registering marriages easier through two new initiatives as part of the government effort to maintain legal-bureaucratic Islam. The first is the waiving of fees for marriage registration. Since the issuance of PP No. 48/2014,Footnote 82 marriages performed at the Office of Religious Affairs are free of charge (unless conducted outside office hours, in which case the fee is 600,000 rupiah—about USD 45). This regulation was created in order to lower the number of unregistered marriages in Indonesia, by making it easier for low income couples to register. However, the cost of using an unofficial broker (penghulu liar) to arrange a marriage certificate ranges from 1.5 million to 10 million rupiah (USD 113 to USD 758) and remains an attractive option to many. The main reason for using a marriage broker is the same reason as those who prefer to buy a fake marriage book, namely to avoid the complicated bureaucratic processes in Indonesia. The complex bureaucracy is evident in the obligation to provide letters from the neighborhood head, the hamlet head, the urban village head, and the subdistrict head. In addition, the couple must prepare for an often slow response within the bureaucracy. This line of bureaucracy demonstrates the government's excessive effort to control Muslim marriages.
The second initiative is the establishment of a website through which couples can register their marriage. Through its information management system known as SIMKAH, Indonesia has, for the first time, an online record of the history of its citizen's marriages. Before SIMKAH, staff of the Office of Religious Affairs recorded the marriage of Indonesians by hand and the office had a disorganized roomful of papers regarding marital histories, which were almost always impossible to access efficiently. In addition to enabling a proper record of each citizen's marital history, having SIMKAH also contributes to the prevention of data forgery. The government's target is to have SIMKAH operators in all parts of Indonesia by 2016, but this has not been achieved to date.
As mentioned earlier, the government seems to proceed from the assumption that they cannot convince Muslims that unregistered marriage is unlawful in Islam. In addition, in terms of online nikah siri, many argues that the response from the government has been quite slow. These issues are challenging to overcome because those who conduct these kinds of marriage believe they are doing the right thing from an Islamic point of view and their communities are reluctant to interfere. For example, the Directorate General cannot act if there are no complaints from community members regarding such practices. This is an issue between the effort to bureaucratize Muslim marriages and the Directorate General's eagerness to preserve its credibility as upholding the “proper” understanding of Islam by admitting that online nikah siri is valid. Additionally, at this point, the responsibility for ensuring marriages are registered falls not only into the hands of parents, couples, religious leaders, and society, but also the government. The government's willingness to commit this issue to their agenda and implement regulations will prove to be particularly important but so far has been lacking.
Conclusions
Discussion of online siri marriage is a continuation of the current trajectory of marriage registration in Indonesia. The bureaucratic apparatus which is being deployed by the government to counter the presence of unregistered marriage, particularly online marriage, can be regarded as another episode in the bureaucratization of religion in Indonesia, following the 1974 Marriage Law and the introduction of the 1991 Compilation of Islamic Law.
For the government, the issue of valid versus legal marriage has consistently presented a major problem relating to the bureaucratization of Muslim marriage. The challenges that have accompanied the process of the bureaucratization of Muslim marriage mainly cover two levels. Firstly is the environment, which embodies the tension between the government, diverse voices of Islam, and social groups. Secondly is the context of a rise of religiosity, which has had to be accommodated by the government. In Indonesia, there is currently an Islamization race occurring in society, which can be evidenced in the effort of the Indonesian government to demonstrate Islamic credentials amid an increasing number of Muslims who are eager to upgrade their religiosity and pursue the study of Islamic teachings.
The government is wary of the possibility that strict regulation of marriage could be counterproductive. Islam plays an important role in Indonesian life; it is also noteworthy, however, that Indonesia is not an Islamic state. Therefore, on certain issues, the government's position is ambiguous, as is evident in this article. On the one hand, the government considers nikah siri as illegal. However, it also admits that this marriage is valid in Islam. This ambiguous position reflects the long-term efforts of the government to use a religious approach in order to accommodate the rise of religiosity in the country. Additionally, the government's intention to win the “Islamisation race” is evident in the manner in which the government deals with the diverse demands of local governments to implement sharīʿa.
Acknowledgments
I am grateful to Mirjam Künkler, Tomas Larsson, Annelies Moors, and all the reviewers for their invaluable feedback. I am also indebted to Nur Choerul Rizal, my research assistant, for his generous assistance. Research for this project is partially funded by European Research Council Advanced Grant for “Problematizing ‘Muslim Marriages’: Ambiguities and Contestations” (grant number 2013-AdG-324180), the Faculty of Humanities and Social Sciences, and the Office of the Vice-Provost, Victoria University of Wellington.
