Are Marriage Offenses Criminalized? Understanding the New KUHP Provisions

Prof. Dr. Rumadi Ahmad, M.Ag.
(Professor at the Faculty of Sharia and Law, UIN Syarif Hidayatullah Jakarta;
Senior Advisor to the Minister of Human Rights of the Republic of Indonesia)

After Law No. 1 of 2023 on the Criminal Code (KUHP) officially came into force on January 2, 2026, public debate intensified around criminal provisions related to marriage. This reaction is somewhat surprising, as these provisions drew little controversy during the legislative process. Some critics now argue that marriage-related offenses in the new KUHP contradict Islamic law.

Under the new KUHP, marriage offenses are regulated in Chapter XIV: Crimes Against Lineage and Marriage, comprising Articles 401–405. The most contested provisions are Articles 402, 403, and 404.

Article 402 criminalizes a person who enters into a marriage while knowingly being legally barred from doing so—either due to an existing marriage or because the other party is legally barred. The penalty ranges from up to 4 years and 6 months’ imprisonment or a Category IV fine and increases to up to 6 years’ imprisonment if the existing marriage is deliberately concealed.

The explanatory note clarifies that a “legal impediment” refers to a marriage that can legally prevent or invalidate a subsequent marriage under Indonesia’s marriage law.

Article 403 penalizes anyone who enters into a marriage without informing the other party of a legal impediment, where such impediment later renders the marriage invalid. The maximum penalty is 6 years’ imprisonment or a Category IV fine.

Article 404 targets failure to fulfill legal obligations to report births, marriages, divorces, or deaths to the competent authorities. This offense carries only a Category II fine.

Importantly, these provisions are not entirely new. Marriage offenses already existed in the old Criminal Code under Articles 279 and 280. Articles 402 and 403 of the new KUHP largely replicate those provisions with clearer formulation. The genuinely new element is Article 404, which has sparked concerns about criminalizing nikah siri (unregistered marriage).

Polygamy and Unregistered Marriage: Criminalized?

Articles 402 and 403 essentially punish marriages that are legally prohibited due to existing impediments. Referring to Law No. 1 of 1974 on Marriage, such impediments include prohibited blood relations, marital affinity, breastfeeding relations, and other religious or legal prohibitions (Articles 8 and 9).

While Article 9 prohibits remarriage for someone already married, Article 3(2) allows polygamy with court approval, subject to strict conditions—such as the wife’s inability to fulfill marital obligations, incurable illness, or infertility.

Similarly, the Compilation of Islamic Law (KHI) reinforces these prohibitions, with additional restrictions such as interfaith marriage and marriage during iddah.

Therefore, it is inaccurate to claim that the new KUHP criminalizes polygamy per se. Polygamy becomes criminal only if conducted unlawfully, for example, without court permission or without registration (nikah siri).

Polygamous unregistered marriages may fall under Articles 402 and 403. However, unregistered marriages involving unmarried couples are not subject to imprisonment; they fall under Article 404, which only imposes a fine for failure to register the marriage, as mandated by Article 2(2) of Law No. 1 of 1974 and the Population Administration Law.

Is Marriage Registration Merely Administrative?

Some argue that marriage registration is a civil administrative matter and should not be criminalized. This view is reasonable. Criminal law should function as ultimum remedium, with administrative remedies prioritized.

Indeed, the Population Administration Law allows a 60-day grace period to register marriages conducted without prior registration. For couples acting in good faith, this period should suffice to resolve administrative issues or seek judicial validation (isbat nikah).

If these avenues are ignored, the state is not prohibited from imposing criminal sanctions. Through legal instruments, the government has an obligation to protect the sanctity of marriage and the legal rights of spouses.

Islamic jurisprudence recognizes the principle dar’ al-mafāsid muqaddam ‘alā jalb al-maṣāliḥ—preventing harm takes precedence over pursuing benefit. Marriage without legal protection constitutes a form of harm (mafsadah). What is punished is not the marriage itself, but non-compliance with lawful authority (ulil amri).

Marriage offenses thus fall within siyāsah shar‘iyyah, which aligns with Islamic principles aimed at promoting public welfare and preventing harm. While classical Islamic criminal law may not classify prohibited marriages as criminal acts (jarīmah), modern governance may criminalize them through policy-based legal discretion.

Proportionality Concerns

A legitimate concern arises when comparing penalties. Under the new KUHP, adultery is punishable by up to one year’s imprisonment or a Category II fine and is classified as a complaint-based offense. In contrast, marriage offenses carry penalties of up to 6 years’ imprisonment and are public offenses, requiring no complaint.

This imbalance may create the perception that marriage offenses are treated as more severe than adultery. Ultimately, judicial discretion may mitigate this, but the disparity remains problematic and should be addressed in future legal reforms.

This article was originally published in Media Indonesia on Tuesday, January 13, 2026.