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2011, on the basis of the Receipt File of Request File Number

233 /PAN.MK/ 2011 and registered with Number 38 /PUU-IX/2011 on the date

20 June 2011 outlines the following items:

A. Constitution of the Constitutional Court That under the provisions of Article 24C paragraph (1) of the Basic Law

Year 1945 (next abbreviated UUD 1945) juncto Article 10 paragraph (1) letter a Invite-

Invite Number 24 Year 2003 on The Constitutional Court (later called the Act

24/2003), one of the Court ' s authority is to prosecute at the first level

and the last of which is final to test the Act against the Invite-

Invite Basic.

That this application is submitted to the Court to test the explanation

Article 39 of the paragraph (2) The letter f Act No. 1 1974 on Marriage

(later called Act 1/1974), as long as the phrase "between husband and wife continues

and a dispute ..." against the 1945 Constitution.

By therefore, the Court is authorized to examine, prosecute and

cut off the applicant.

B. The Legal Position (Legal Standing) the applicant the applicant is an individual citizen of Indonesia who is harmed in the right

constitutionality, as guaranteed in Article 28D of the paragraph (1) of the 1945 Constitution and

Article 28H paragraph (2) of the 1945 Constitution, in respect of the article (s). with the description of Article

39 verse (2) letter f Act 1/1974, along the phrase "Between husband and wife continued

there is a dispute and a quarrel ...".

The applicant is the wife of a man, named Bambang Trihatmojo bin HM.

Suharto, on Saturday, 24 October 1981, was listed

at the Setiabudi District Religious Affairs Office, South Jakarta. In accordance with

quote Akte Nikah Number 692/182/X/1981 dated October 24, 1981.

That from the marriage of the petitioner with the male Bambang Trihatmojo bin HM.

The Suharto has three (three) children, that is:

1. Gendis Siti Hatmanti, woman, born in Jakarta, on 26 September 1982;

2. Bambang Panji Adhikumoro, man, was born in Jakarta, on 22 June 1986;

3. Bambang Aditya Trihatmanto, man born in Jakarta, on 23 May 1990.

That the applicant with her husband as husband has chosen the place

the last joint residence on Tanjung Jalan Number 23, Kelurahan Gondangdia,

Menteng District, Central Jakarta.

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That initially the applicant's household life with her husband

was perceived to be quite good, serasi, and harmonious, but since 2002 it began to arise

strife and quarrels, beginning at the time known husbands were in existence relationship

dark (backstreet) with another woman, named Mayangsari.

The petitioner's husband no longer loves the applicant and his children. At the time

The applicant advised him, he behaved harshly and cruel, acapkali hit the applicant

and the children. Quarrels and discord have indeed possessed the household

The applicant but the cause of the quarrel is the husband who acapkali and forgets

self, not the real applicant still loving the husband and attempting

saving the household.

However the petitioner's husband, Bambang Trihatmodjo no longer loves the applicant,

no longer gave his birth and inner living, even since 2002, he

left the place of residence together on the road Cape Number 23, Central Jakarta

and chose to live together with Mayangsari.

On On May 21, 2007, the applicant's husband included a divorce lawsuit (talak)

against the applicant at the Central Jakarta Religious Court, arguing in between

himself and the applicant "there was often disputes and quarrels", causing

The petitioner and her household are hopeless.

The divorce suit was made by her at the time of the Mayangsari.

The applicant, as a wife, attempted to save her household, Not

getting divorced but during the prolonged divorce process, body

the court ultimately cut off the divorce (talak) of Bambang Trihatmodjo's marriage

with the applicant, with the reason between the applicant and her husband often going on

strife and quarrels, causing the household to be with no

hopes of life again, as indicated in the Description of Article 39

paragraph (2) of the letter f Act 1/1974.

There is a causal relationship (causal verband) between the loss of rights

the applicant's constitutional right, legal certainty, and

justice with the provisions of Article 39 of the paragraph (2) of the letter f Act 1/1974 which

is mohoned for testing in this case.

C. Subject matter

The explanation of Article 39 of the paragraph (2) of the Act of 1/1974 which is being honed for testing

The Act, reads:

2. The reasons for which the divorce can be made basis are:

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a. ... dst;

f. Between husband and wife and constant disputes and quarrels ...

The provisions of Article 39 of the paragraph (2) of the letter f Act 1/1974 referred to

are seen as harming the constitutional right of the applicant, as guaranteed the constitution

in:

Article 28D paragraph (1) of the 1945 Constitution reads: "Everyone is entitled to the recognition, guarantee

protection, and fair legal certainty as well as the equal treatment of

the law", and Article 28H paragraph (2) of the 1945 Constitution which reads: " Everyone has the right

gets the ease and special treatment to acquire opportunity and

equal benefits to achieve equality and justice ".

The explanation of Article 39 of the paragraph (2) of the letter of Act 1/1974 which was later outlined

in Section 116, the letter f Compilation of Islamic Law (hereafter called KHI), contains

one of the reasons for the divorce: "Between husband and wife and over and over again

strife and quarrels ..." without setting the normative law that

when there is a dispute and a conjugal fight, it is not,

there may be a personae of the cause of the dispute and the house squabble

the stairs. Most wives are sacrificed in disputes and quarrels

the household, in the time the husband is a personae cause of the dispute and

the quarrel. For example, the husband is in a dark affair (backstreet) with

another woman, then leaves the place of the residence together. Disputes and

quarrels between the two would be inescapable but "the rule of law" is not

guarantees protection, legal certainty, and justice for the sacrificed wife,

who later broke up for divorce (talak) anyway. his marriage by the court body, with

legal considerations: there is no hope of being rukun again in the household

(onheelbare tweespalt).

In Burgerlijk Wetboek (= BW. Ned. India), not listed

disputes and constant husband-wife quarrels as an excuse

divorce. Section 209 BW. Ned. India (1848) set out the reasons for divorce:

1. Zinah;

2. leaving the place of residence together in bad faith;

3. was sentenced to a prison criminal 5 years or more, after marriage;

4. the odds or severe mistreatment by one against the other, or

otherwise, that could harm the soul or result in the wounds that

is dangerous

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The Islamic Sharia also does not contain disputes and husband quarrels-

wife as for divorce (talak), except:

1. Wife of fornication;

2. The wife of musyuz has been advised of repeatedly; or

3. Drunk wife, gambler, or committing a crime to disturb

the calm and the household kerukinies (Mandani, 2011:29).

Islam protects and guarantees the position of wife. " Take care of your wife

according to her partner, if you hate her, don't drop it immediately

the tape. Perhaps you hate the things God has made

a great virtue in it (S. An-Nisa: 19.) Isteri cannot be treated

arbitrary by her husband, including if he does not want to be divorced (talak) because

still loves his family, especially because as his wife and his children ' s mother, he

is innocent. The wife is entitled to a hospital and mawaddah.

Every marital norm can set the onheelbare thing

tweespalt, as with incasu in the body stem of Article 39 of the paragraph (2) Act 1/1974 which

formulating "... between husband and wife will not be able to live as a husband's husband"

but may not be accompanied by the rule of new law norms against his Body Bar section,

such as the in casu in explanation of Article 39 verse (2), the letter f Act 1/1974 that

formulae the phrase: " Between husband and wife continue continuous disputes and

quarrels ... ", causing obscurity of the Body Bar norm that

explained, as not allowed in vide Attachment Act

Number 10 Year 2004 about The establishment of the Law-Invitation Act

(subsequently called Law 10/2004). The explanation of Article 39 of the verse (2) of the letter f UU

1/1974 does not regulate the case of personae of the cause of the dispute and the husband's quarrel

the constant and continuous wife. Most wives are wronged in their constitutional rights,

for example in the case of a husband in a dark affair (backstreet) with a woman

another, while leaving the place of residence together and living with her lover.

Explanation of the Act, commonly called memorie van toelichting, is in

outside the skeleton of the Body Bar, generally consisting of the General Description and

The explanation of the chapter in accordance with the section. The Act (= body bar), promulred

(afkondiging) in the State Sheet, while the explanation of the Act is contained

in the Additional Sheet of State. When there is a vagueness or

contradictest the Body Bar text with an explanation then the Body Bar text

streamlines the explanation of the Act.

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Residents (burgers) are only tied to the Act (wet, Gezet). They

not having to know all the explanations and all the talk and discussion

about the Act referred to, quoting Rapport Wetgevingstechniek, 1948.

The explanation of Article 39 of the verse (2) of the letter f Act 1/1974 does not only harm the right

the constitutional applicant, with regard to the guarantee of protection of certainty and

justice but also harms the constitutional right of wife in the country This is, as

in casu in Section 28D paragraph (1) UUD 1945 and Article 28H paragraph (2) UUD

1945.

Based on the entire application description above, the applicant pleads to

The Constitutional Court to examine and discontinue this plea as follows:

1. Accept and grant a request for the whole;

2. Stating the explanation of Article 39 of the verse (2) of the letter of Act 1/1974, the phrase "

" between husband and wife and constant disputes and quarrels ... "

contrary to the 1945 Constitution;

3. Stating the explanation of Article 39 of the verse (2) of the letter of Act 1/1974, the phrase "

" between husband and wife and constant disputes and quarrels ... "

does not have a binding legal force;

4. Ordering the revocation of the explanation of Article 39 of the verse (2) of the letter f

Act 1/1974, along the phrase "Between husband and wife continued to occur

disputes and quarrels ..." in the Additional Sheet of State and

ordered a loading of the verdict on this request in the State Sheet

Republic of Indonesia;

[2.2] weighed that to prove its control, the applicant

submitted the evidence of the letter/writing that had been marked Proof P-1 to

with the Proof P-7 as follows:

1. Proof P-1: Photocopy A Copy Of The Central Jakarta Religious Court

Number 249 /Pdt.G/2007/PAJP;

2. Evidence P-2: Photocopied Copy High Court DKI Jakarta Number

48 /Pdt.G/2008/PTA.JK;

3. Evidence P-3: Photocopy of the Republic of the Supreme Court of Cassation

Indonesia Number 184 K/AG/2009;

4. Proof P-4: Photocopying Copies Of The Review Ruling

The Great Republic Of Indonesia Number 67 PK/AG/2010;

5. Evidence P-5: Photocopy of the Nikah Letter;

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6. Evidence P-6: Photocopy Card Population and Family Card;

7. Evidence P-7: Photocopied Act No. 1 of 1974 on

Marriage;

In addition, the applicant submitted 5 (five) experts who delivered the caption under oath in the trial date of 10

August 2011, date 11 October 2011, and October 25, 2011, which

posits the following:

1. Bismar Siregar, S.H.

Act No. 19 of 1964 (later called Act 19/1964)

has been replaced with Law No. 14 of 1970 on the Terms

The Code of Justice Power (subsequently called Act 14/1970), It should be more

unequivocal, not after an independent state of the law

national. Because in such a law except through the Invite-

Invite, it is reminded of the legal certainty that if there has been an Act

that should not be changed, it is interred by anyone as well. Although the Act 19/1964

has been replaced by Act 14/1970, according to experts there is no need for demands, although

in fact according to the parties concerned with legal certainty, there is a provision

that the Government has the right to interfere in its path the judicial if the judiciary is

for the purposes of the final determination impeding or experiencing obstacles.

However, there is not yet something to be consigned

by the Government, as it all goes well. I swear, "For the sake of

." And if there's anything less, it's still still. It is not for the sake of

the law, but for the sake of justice based on the Almighty God. Armor

for the sake of legal certainty must be replaced with the sake of justice based on

The Almighty God. When this is indeed a benchmark, it feels and

imagined in the human self the meaning of the Almighty God is in

the punishment.

There is a difference of opinion among those still

conservatives, following the legacy of the law first, in which they priorite

legal certainty rather than legal justice. The connection of the Armor is not semerta-

semerta exists, but is derived from the Constitution of 1945 and Pancasila, purportedly in the name

the justice of the divinity is listed in Article 29 of the paragraph (1) of the 1945 Constitution,

then quoted as Pancasila. But the Pancasila isn't until now.

8

manifested in reality. It is therefore said to be a legal revolution.

It was supposed to be today to be abolished and that no one is now held

when necessary. That's the meaning of the revolution about the law. After 66 years

The Act exists in our midst, can we still feel the soul and spirit of

The Almighty God in the verdict of every judge? It is not to be recognized as not

recognized, if not recognized means already, point, end, or finished, but if not

then the verdict will be set to consider a divorce settlement

between a named Bambang Tri Suharto. Then he dropped the talak

to Siti Halimah after a decade of their fostering life

the household. Therefore, the question comes after the request of the cassation

Bambang was examined and tried by a Supreme Court judge, stating that

the actions or the relationship between Bambang and Halimah is not appropriate to

the kerukunan, by the Therefore Bambang is entitled to drop the talak for

the divorce. So blessed is the victory, so

grieves who got the defeat even as opposed to

the justice based on the Almighty God. But it should be

reverted to the will of God, in the will of God it must be

hold firm, ask me what is behind this disaster.

There is a guideline in Letter An-Nisa verse 58, " if you

enforce "The laws of the law, fair and fair." And without being overloaded

attached is also the foreword from Arswendo in the book Letter to

The leader who is a collection of writings from the Expert as quoted as

follows, " but also asks why we can only pity and memmute when water

the eyes have been drained and as if it were in a dead end. Also asked further

is there a sense of solidarity over the bad luck itself is pursed, as we

have lost the spirit of shaking hands or lost a way to

smile? "

There are some classic cases that It is associated that remains an actual relevanus,

Not even until now.

The death penalty for a man mutilating an engineer who

helped him, gave the job, and housed when the man was broken up

The job. The victim was cut, chopped, separated, inserted in plastic,

and dumped in a separate place. Expert death penalty

invites polemics: do we not have Pancasila attitude?

9

The severing of severe punishment for Acan family rapists. The expert proposes

a heinous sentence for the perpetrator of the rapist and not as written in

the Act is 12 years old. That is because the perpetrator tamed the honor,

including the "stuff", the future, the happiness that should also be given

the meaning.

The severing penalty for marijuana dealers-when an Expert served in Medan, who

sentenced the prosecution to 12 months ' charges and

15 months, but was eventually broken up with for 10 years and 15 years.

The legal verdict of marriage between Catholic religious adheres that is not

records a government or civil record. The marriage was

legitimate, because it passed the Pastor, and the Pastor married in the name of God.

So that needs to be laid out is the procedure.

Or the vision forward as if it was capable of seeing what would happen at three

The next twenty years when the moral depravity that is formed in rape

is not simply cursed by the mouth but must also be conquered through

punishment. All of that was done, thirty years ago, probably still would

be regrettable in the thirty years to come.

The straightest path is to remain straight without compromise, without

swerking because there is a patok, is Very simple. The expert said, " Which

simple it is trusting to the One Above. If you believe in

The above, there is no more fear and restlessness for tomorrow. Believe

to Him, that ' s what guides me ". It is the source of the "power" for the sake of justice based on the Almighty God. " For justice,

not for the sake of the law, not for the sake of the conco, not for bribery, not for the sake of office.

The same basic color is aba in the letters that are

the gentle and resolute whisperer. There was sincerity in his letters, there

humility, there was courage to remind everything without

being asked. Even if it doesn't work out, it doesn't make any pain. Also not

making a broken heart, still to be done because that's the best, that's

responsibility, which is still done without office, without material rewards.

When there was a cultural event, he gave that welcome.

greeted with a standing ovation, for the start and end was not

with Islamic and Christian greetings alone, but all. With

eloquent, with clear sentences, also when citing unzeable verses

10

excess.

Courage is also constancy in finding Him On Top,

as the Prophet Natan, in the Book of the Old Testament. Natan is a prophet who

very close to King David, a great influence, the Natan also praised it,

encouraging, but also rebuking when David played the serong. Natan

advised David to build a kenisah, but at once told him to stop,

because it was his duty to be finished by his son, Solomon. It needs to be ears

the kings are able to hear it. Nor is the Expert (Bismar "Natan"

Siregar).

Dicontohkan also quoting the caliph Umar bin Abdul Aziz

that he did not want to ride the gold train but chose to walk, refusing

staying at the palace to be close to the people, still wanting to hear suffering

The people, directly involved with their impartial justice problem.

The reason he does is for fear of God, because there will be a liability

answers to be given later.

For the Expert is not It's just a story of the past, but it's also a power and power in this age. Any time. When the temptation

the luxury or the salary of the mumpung, keeps the leader from the people who

trusted him.

When an Expert says, the ear has ears to hear.

The real sound is either lost or cryptic or tainted. When an expert

writes a letter, it should be implied. Surely this is a wisdom,

also of his own advice. That his blessings were never in vain, unobliterated.

Based on the Pancasila Tap MPR Number II/MPR/1993, " Asas KeFaith

and Ketaqwaan against God Almighty, that all efforts and

national development activities are imbued, movement, and controlled by

faith and fortitude towards Almighty God as a sublime value

which is the spiritual, moral and ethical foundation in the framework of development

national as the Pancasila experience (Asas National Development of Item C).

" Rohaniah and mental, i.e. faith and fortitude towards God Yang

Maha Esa is an invaluable driving force for

the filling of the nation ' s aspirations. Also the nation's belief and belief in

the truth of the philosophy of pancasila as the only principle in life

society, nation, is a capital mental attitude that can carry

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the nation is headed for its ideals ".

2. Marzuki Darusman, S.H.

Based on Article 39 of the paragraph (2) Act 1/1974, to perform

the divorce must be met with one of 8 (eight) items of reason, i.e., if incorrect

one party performs/or if it occurs, intisari, things as follows:

a. Certain actions (fornication and so on),

b. leaving husband/wife,

c. prison sentence,

d. Cruelty/persecution,

e. Body defect,

f. Constant discord,

g. Talak violation,

h. conversion to religion.

Orientation of legal thought explanation Article 39 verse (2) Act 1/1974 on

essentially sit the notion of marriage more as an

form of contractual relationship/bonding rather than understanding About

marriage as a soft/institution.

Special on Explanation of Article 39 paragraph (2) letter f Act 1/1974, which

states, "Between husband and wife constant dispute and

quarrels and no hope will be life rukun again in the house ladder "

there are problematic facets in relation to some of the rights

humans covered in 2 (two) of the Constitution of 1945 are:

1. Article 28D paragraph (1):

a. protection guarantee

b. legal certainty

2. Article 28H verse (2):

a. equal rights

b. justice rights.

The problematic terms are as follows:

1. The issue in relation to the protection of protection

The formulation of Article 39 verse (2) of the letter f Act 1/1974 does not point to the cause-

causes of the source of discord. This formula allows

various or aneka causes that can be in (wrong) use for

resulting in a quarrel in such a way that " no

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hopes will be life rukun again in the household ".

2. Problems with regard to the legal certainty of law

The issue of this issue is directly sourced to unfurled the guarantee

protection as described above. There is no guarantee

protection, resulting in the absence of any legal protection of protection laws

for the parties to the victims in marriage. Only if there is clarity

guarantees of protection for the parties in marriage, then the right to certainty

the protection laws for them can be enforced

3. The problem in relation to the equation

The formulation of Article 39 verse (2) of the letter f Act 1/1974 is essentially giving

the same formal position between husband and wife, as the parties

in marriage. However, this formula does not meet the demands of the conditions

the universal norm between men and women in reality. In

the reality of community life, in general the position of female parties

tends to be weaker in marital relations. This means that the formula

does not meet the demands of the rights of equality as a human right that

the constitutionality set up in Article 28H of the paragraph (2) of the 1945 Constitution.

4. Problem in relation to the right of justice

The issue of the issue does not comply with the fulfilment of a talian rights

with the right of justice, sourced not to the right of equality

in Article 39 of paragraph (2) letter f Act 1/1974 It's described above. The right

equation is a rational and constitutive basis for its embodied

justice.

The explanation of Article 39 of the verse (2) of the letter of Act 1/1974, potentially for abuse.

In general, a divorce that uses the reasoning as stated in

The explanation of Article 39 verse (2) of the letter f Act 1/1974 was caused by things that

fitri can trigger the state "between husband and wife constantly happening

disputes and quarrels".

The issue that may arise primarily is the result of

an act of one party (generally male) in a relationship

with a third party not acceptable to the other party (in general

(female). In practice, this is what causes the Explanation

Article 39 of the verse (2) of the letter f Act 1/1974 this restricts the protection of the country to/

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on the human rights of the citizens. If the state does not do protection against

citizens as required by the constitution, then the country can

be said to violate human rights.

3. Dr. Makarim Wibisono

According to the expert, the provisions of Article 39 of the paragraph (2) Act 1/1974 that

outlines the reasons that can be the basis for divorce, the letter

f, which reads " Between husband and wife persisting There was a dispute and

quarrels " contradictory to the concept of human rights. The core of the concept

human rights are like a metal currency. On the one hand, the concept

rests that all people, so born from her mother's womb are the same, and

makes no difference. On the other hand therefore, the concept does not justify

any form of discrimination in any form either due to ethnicity, race, gender,

education, wealth, color, religion, employment, and a person's physical condition.

The concept of Article 39 paragraph (2) Act 1/1974 harms the people

women and wives for not giving justice to him and

reflecting the absence of equal rights for women and wife

with the right of a husband. Husbands can easily divorce their wives

for the constant cause of disputes (and quarrels, because

those provisions do not ask or require clarity on who

the trigger or what it is To be a ' cause primed. This is an unfair thing.

Anyone a woman or wife who builds a household with

a sublime source of love and affection, will not be able to

accept if her husband cheats on her and is in a relationship dark relations with

Other Idaman Women (WIL). So the source of the dispute and the quarrel was

because of the scandal with the third party. Are women and wives

it must accept a third party for strife and quarrels not

happen? In this case women and wives are not protected at all by

provisions of Article 39 paragraph (2) Act 1/1974. Such provisions do not

provide legal certainty to women and wives at the time of

ahead of those conjugal relations.

Otherwise, the Constitution is clear and the gamblang upheld the principle-

universal principles and align with the concept of human rights. Article 28D clause

(1) of the 1945 Constitution mentions that (1) any herright of the imitation,

the guarantee, protection and certainty of fair laws and the same treat

14

in the presence of the law. " In article 28H (2) of the Constitution of 1945 even

emphasizes the raison d' etre of its "... to achieve equality and justice".

Thus there has been a clash of norms; on one side of the Constitution

in this case the Constitution of 1945 Uphold the principle of equality, justice, and rights

man, and in others the explanation of Article 39 of the paragraph (2) Act 1/1974 advocating

the principle of difference of rights between husband and wife. This is very contrary to

the rule of law because the explanation of a section of the Act should

reflect the same norm as that of the article. And the nature of that explanation

is only explanatory rather than the introductory of the new norm.

Because the 1945 Constitution is the legal source of all the Invite-

Invite in Indonesia then it better be this thing Straighten it out. Explanation of the Article

39 verse (2) letter a, letter b, letter c, letter d, and letter e are very adequate,

sufficient and already in accordance with the principles of the refinement, fairness, and rights

human rights.

4. Prof. Dr. Musdah His Majesty Islam is believed to be a religion that brings grace to the universe,

(rahmatan lil 'alamin) and promised liberation for mustadh' afin (group-

group that experienced marginalization in the society), including at

it is a female. Because of this, Islamic teachings are laden with values-

the value of the equation that is al-musawah, the value of brotherhood (al-ikho ') and

freedom (al-hurriyah). Unfortunately such values and ideals when

interacts in human culture experience a great deal of distortion, as

reads in various religious interpretations, including commentaries associated with the problem

marriage and the divorce;

Islam as a religion undergoes a number of rules related to relations

among human beings called muamalah. In it there are rules

specifically related to conjugal relations in marriage called

munakahat. In the context of the muamalah, Islam confirms men and

women are both creatures of God, both of whom are in the context of their marriage. potentially to be khalifatul

'ardh, otherwise both of them could potentially be fasadun fil' ardh. Both

were promised the reward for the good they did, but also punishment and

the sin of the crime And the only thing that they do. Islam really-

really acknowledges there is a biological difference between men and women. Will

15

but their rights and obligations as human beings and as servants it is

equal, both are equal equal partners, both in life

the family and in the community life, the nation, and the country;

The Islamic teachings have two important aspects, the vertical aspect and the aspect

horizontally. The vertical aspect describes the human obligation to God who

is called habluminallah, while the horizontal aspect regulates the relationship in

among fellow humans, it is called the habluminannas.

The importance of this horizontal aspect, so that the Koran and the Prophet's hadith are with

the teachings of the acomodative to the values of humanity, e.g. the teachings

on the importance of the husband-wife prevailing arif and wise in life

family. The husband of God should be able to make sure that he is the best to do so. Husbands should not

divorce his wife transiently, let alone deliberately make

be able to incur a wife's discomfort, resulting in an inexhaustible conflict of conflict

and the inexhaustible perbickering. These two (wives) are expected

can live rukun, love each other forever, and complement each other forever, as

part of worship to God SWT.

The Koran addresses the marriage issue in detail in many verses. In

Expert research, no less than 104 verses of the Koran talk about marriage,

either using a an-marriage vocabulary either repeated 23 times or

3. The musawahprinciple, complement each other and protects;

4. muasyarah bil ma'rufprinciple, polite and good manners in

sexual relations and in humanitarian relations;

16

5. The monogamy principle.

The Koran is in many verses, always spreading the bonds of marriage

with an outstanding phrase that is mitsaqon gholidza, an

a commitment so strong a sacred covenant in the Between the two men-

men and women were equal and love and love. Because

it is, the parties are obligated to keep the sanctity and agility of the agreement

that is. Islam is strong enough to encourage wives to always keep

the marriage commitment and caring for the love of love for a langgeng

forever. However, often the reality in real life is not as beautiful as

the normative rules outlined, that is why Islam opens the door for

divorce, albeit with very strict rules.

The historical data revealed that prior to the arrival of the Messenger of God

SAW, the woman had no right to sue the talak, unless the husband gave

rights, it was also very rare. Then with the arrival of Islam, a very, very, very radical change

. Islam limits the rights of the husband as it does

at the time of jahiliah's. Furthermore, it gives the wife the right to sue

talak based on logical considerations in accordance with religious teachings. Islam guarantees the right

khuluk for wives whose values are equal to the right of husband, even Islam

changing the position of the wife of a helpless object into a subject of having

strength;

In the Arabic period jahiliah husband dropping talak is considered a regular and

is very common, husbands have unrestricted talak rights and are performed

transiently. The behavior of jahiliah causes no sense of humanity

and there is no justice for the husband in treating the wife because the wife

is just a sex object. The condition of jahiliah was radically altered by the Prophet,

The Prophet proclaimed that God's most joyless act was

enacting slaves, instead of the most hated act

God. However, it is impossible to abolish the Arab Jahiliyah's customs

at once. As a result, the Prophet allowed a talak, with a note

of all attempts to reconcile, it is no longer possible;

The Islamic Reformation in divorce is granting divorce rights to

wife, despite maintaining the rights of the rights to the rights of the Islamic State. talak in the hands of a husband, but he should not

use that right transiently, this is the most important note in

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in Islamic reform. Islam allows the talak, but it remains stated as

God's most hated deeds because it will create infamy,

especially for the child and family. So, divorce is a good thing,

but hated. Hence divorce should be done only in conditions

that is absolutely forced. In addition, dropping the talak is not the right

mena-mena of either party, but there is a must involve the person

third to find a way out that may be taken. With the phrase

another, Islam treats women much better, far more humane, and

far more equitable, especially in the context of divorce.

In many classic books as in Al-Umm As-Syafie

explains, "Divorce is deciding the husband's husband relationship that

is done by the husband using the word talak or similar to that," there is a lot

explanation for this. However, it is noted that the Quranic verses

related to divorce, as well as Hadith the Prophet did not explain in detail

about the reasons that a husband may use to divorce his wife or wife

is suing a husband for divorce.

The texts of the Quran and Hadis explain much more about the obligations

husband does good and fair to wife, both before or after

divorce. An explanation of the provision gives a living to the child and

the post-divorce wife is also an explanation of the types of talak and its implications,

an explanation of the terms of the idah for the wife and also the explanation of

A possible header for husband and wife after the divorce occurred.

There is a deep impression that in terms of divorce most verses

and Hadith it contains messages of religious morals to keep my attitude and behavior

wise and well-mannered, It's a lot more addressed to husbands. Because of the context

Arab society when it is, even today, still dominated by

the culture of patriarchy, the husband is thought to have subordinate positions within the family,

superior position, otherwise the wife is subordinate to and imperior;

Although the Quran and Hadis do not specify in detail about the reasons

the divorce, but a Pakar of Islamic Law named Al-Sarakhsi the author of the book

Al-Mabsut explains that the fact of the cause occurrence of divorce is between

another is talak, khuluk, ila ', and zihar. While according to Imam Malik and Imam

Syafi'i, yes a cause is a khuluk, there is a khiyar, there is fasakh, there

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syiqaq, there is nusyuz, ila ', and zihar. Al-Sarakhsi nevertheless underscores

the legal status of the divorce, as an act which may be performed only

in an emergency, either on the initiative of a husband, nor on the initiative of a wife.

In contrast to the Koran and Hadis Nabi, the Indonesian Invitation

which experts mean Law No. 1 of 1974 on Marriage,

in its explanation mention 8 reasons for the severing of marriage, whether

with a divorce or a divorce.

In the Act in Malaysia in particular in the state of Perak and

Pahang, it says divorce occurs if there are 5 reasons, which is husband

impotent, the Malaysian term is dead. Crazy husband, suffering from leprosy disease

(vertiligo) or suffering from a venomous venereal disease during a wife is not

willingly with the condition. Third, there is the marital consent permit of the wife

that is rendered unlawfully, either due to coercion, forgetfulness,

imperfection of reason, or other reasons in accordance with the syarias.

The fourth, at times Unworthy marital marital marriage

for her to mate. The fifth, or the other legitimate reasons for the facade

according to the syariat.

Of the 5 reasons the breakup of the marriage was carried out by the Act

Malaysia it was, very different to the reason indicated in the Invite-

Inviting Indonesian Marriage. That is, despite the equally state

of the majority of Islam, the reason for divorce in the second Act

the country is very different. This indicates that the reason for divorce

which was set in Act 1/1974, was solely the result of the interpretation of the

makers of the Act. The reason is not found

is explicit in the sacred texts of religion, as the previous experts explained.

However, making an intelligence in Islamic law it is very, very

is possible. Abu Hasan Al-Mawardi and Ibn Taimiyah, for example

stated that the Government in Islamic law had a duty to protect

its citizens from various forms of discrimination, exploitation and treatment that

adversely affected Create a rule that can cause the peace and the peace. As ulil amr, the Government has 2 functions

main, that is (Expert using Arabic) and (Expert using language

Arabs) maintain religion and regulate world affairs.

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In the execution of both functions it is mandatory to be adhered to its citizens throughout

not to invite to the exchange and not to bring the later land.

In the context of the implementation of both functions it is the Government It is justified in making

a law in the field of stratum. The tactic is

a set of rules that the Government makes in order to support the treatment

the teachings of the Quran and the circumcision, although it has not been formulated by the cleric

before.

Now that a number of divorce cases are felt to be very detriin to the people

women, both as wives and as citizens, and that is generally

based on the reasons indicated in the Marriage Act.

For example in Article 39 of the Act of 1/1974 that the divorce occurred

because between husband and wife persists disputes, and

quarrels, and there is no hope of living in the household any more,

then it ' s appropriate that the Marriage Act was reviewed, at most

not The terms of the divorce were removed. The reason, provision

contains discriminatory elements, and disadvantages the wife, as well as not in line

with the principle of the constitution, and the fulfillment of human rights being

the cornerstone of legal reform in Indonesia, and which Surely, the explanation is not

has a strong base in Islamic teaching. Thus the changes to the Article

39 Act 1/1974 need to be done.

The proposal of this change is clearly aimed at empowering women

and embodied a thorough protection against women ' s rights

as Completely human. As is stated in the constitution, and also

legislation, as well as the Sedo Conference. Indonesia has already ratified

this conference with Act No. 8 of 1985. Through the change

it is also expected that Indonesian Muslims can promote the teachings of Islam that

is friendly to women and also as well as grace for the universe.

5. Sinta Nuriya Abdurrahman Wahid

According to the Expert that the marriage had a very sacred purpose

and noble, that is:

1. Marriage can create inner peace, compassion, and

equality between husband and wife. It is so in the Quran.

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Letter Ar-Ruum paragraph 21, "Wamin aayaatihi an khalaqa lakum min anfusikum

azwaajan litaskunuu ilayhaa waja'ala baynakum mawaddatan warahmatan inna

fii dzaalika laaayaatin liqawmin yatafakkaruun", meaning " And among the signs of God's grandeur, He made you a couple of the same kind

so you feel calm with him and He makes love and love

dear among you, In this case there are signs for

people who think ".

2. By marriage, the survival of the human child can be maintained

and the child born has either a nasab line or a lineage

which is clear. Therefore, the marriage in Islam must be tied in

a very strong bond or one called miitsaaqan ghaliizh

as in the Letter An-Nisa verse 21;

Given the purpose of the marriage so sublime and the urgency, then

Islam is so maintaining that marriage can be preserved by any spouse

husband-wife. It can be seen from the prophet's hadiths saying "Aghdolul

halala indallahi at thalaq," Meaning the most hated halal thing by God

is dropping the talak. It shows that a husband is obliged to try

distancing himself from dropping the talak. Husbands are only justified dropping

talak if forced and there is no other way to avoid it. On this basis

a majority of fukaha including Imam Hanafiah and Hambali argue that

the husband is forbidden to drop the talak unless it is emergency or forced to.

The measure determines the emergency is based on the syarah, not because

solely lust. This opinion is based on the hadith which

states"Laknatallahu kullatawaqin witslaqin," means "God condemnates the husband

who the cicip again likes to do the wife." However, Sayyid Sabiq said

that the talak is forbidden if there is no need for it. Because the talak without

is accompanied by a clear reason for the cause of the land and

obliterates the health. The same opinion is delivered by Sheikh Raction

The author of the Book of Al Maqsud.

Of the above opinions can be drawn a conclusion as

following.

1) Talak may be carried out throughout to bring health care for all

related parties are husband-wife and children. Because of how it is

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not only conjugal wives will bear the aftermath of the divorce, but

children will also be victims of divorce. Meaning that the divorce was

done as a relief effort, not legitimacy

to satisfy lust;

2) Although the right to talak exists on a husband, but must remain

pay attention to the rights of interest and the human dignity of a wife.

Because it is the primary mission of the overthrow of Islam to the world that

explains the egalitarian relationship between husband and wife. This can be seen in

The Quran, Al-Fathir, An-Naba, An-Nisa, Yasin, Ash-Syura,

Az-Zukhruf, Al-Baqarah, and An-Najm;

3) Because the husband has absolute right to do talak, then there needs to be

restrictions and Strict requirements as a control for that right

not used carelessly by a husband;

4) In doing talak, should still pay attention to the rights of the people

women as wives. That is, talak cannot be done transiently-

mena for no apparent reason and by ignoring the rights of women

as wives.

As an attempt to control the use of talak rights

male people, And some of the experts in the interpretation of the verses

The Quran and Hadith, among them Imam Malik and Imam Shafi'i,

states that the cause of the talak is the sighat talak,

khulu ', khiyar, fasakh, syiqaq, nusyuz, ila', and zihar. The views of the expert clerics

This fiction are then further derivative by the Indonesian Government through the Act

1/1974, in particular in the Explanation of Article 39 of the verse (2) there are 8 (eight) reasons

the severance of marriage, either with a divorce or a divorce, that is:

a. If either party does fornication or becomes an alcoholic, the customary,

gambler, and the other is difficult to heal;

b. Either party leaves the other for 2 consecutive years without

the other party's permission, and for no legitimate reason, or because of anything else outside

his ability;

c. Either side gets a five-year prison sentence or a penalty

which is heavier after the marriage takes place;

d. Either party commits an atrocity or severe persecution that

endangers against the other;

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e. Either party gets a body defect or illness that results in

not being able to exercise liability as a husband or wife;

f. Between husband and wife constantly disputes, and quarrels,

and there is no hope of life in the household anymore;

g. Husband infringes the right of the talak;

h. Conversion of religion or apostasy leads to disconnection

within the household.

Related to it, there needs to be a depth of depth to

The explanation of Article 39 of the verse (2) letter f Act 1/1974 throughout the phrase ' "between husband

and a constant wife of strife and quarrels";

The clerics differ in the dispute over this issue,

that is:

The first group states that disputes and quarrels can

be the reason for the fall of the lalak due to strife and bickering

reneging on the goal of marriage to form a family of sakinah, macontainer,

warohmah as mentioned in the Koran Ar-Ruum Quran verse 21;

The second group argues, discord and bickering at all is not

Could be the reason for the fall. The opinion of the second group is

majority opinion of the fukaha, including the Madzahibul cleric

Arba'ah, namely Hanafi, Maliki, Syafi'i, and Hambali;

From the view of the clerics, scholars argue that the phrase "between

husband and wife persists disputes and quarrels", preferably

not being used as the reason for the fall of the talak, because:

1. First, if the phrase is accepted without any explanation for the cause

a dispute and a quarrel, then it will open the odds

the fall of the talak. A man who has grown tired of his wife will be able to find a cause that can cause friction to be able to be able to

drop the talak to his partner. If this is the case, then the sacraality

marriage as a solid agreement or mitsaqon gholidzon will be

defeated by a human ego that can provoke a dispute

and bickering. In other words, a 'cicier' man and divorcd

his wife would have gained the legitimacy of the nerves to do the marriage-divorce

how to make disputes and quarrels;

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2. Second, if this phrase is accepted, it eliminates the rights

constitutionally any spouse who wants to retain its marriage.

Meaning, this phrase ignores the efforts of every husband-wife who wants to

continue. fight for her survival according to a religious order

because the position of the couple becomes the same as the husband-wife position that

becomes the cause of fights and quarrels. If this is the case, then Islam

does not provide protection against people seeking to run

the good in a marriage, as this phrase is contrary to

makhositul conditions, which is the purpose of which it is fixed. a law, even as well

contrary to Article 28D paragraph (1) and Article 28H paragraph (2) of the 1945 Constitution,

then it must be rejected.

[2.3] A draw that against the applicant's plea,

The government at the hearing of the 10th of August 2011 delivered the caption

oral and written words outlining things as follows:

I. The subject of the applicant

of the entire applicant ' s plea description, at its core stated as

following:

a. that the applicant is the wife of a man named Bambang Trihatmojo bin

HM. Suharto was recorded in the marriage certificate No. 692/182/X/1981 dated

24 October 1981, and has been blessed with 3 (three) children, namely Gendis Siti

Hatmanti, Bambang Panji Adhikumoro, and Bambang Aditya Trihatmanto;

b. that at first the household life between the applicant and her husband

was perceived to be quite good, serasi and harmonious, but since 2002 started

disputes and quarrels, beginning dikala are known to husband

The petitioners are in. a dark affair (backstreet) with another woman

named Mayangsari and until this time has lived together;

c. that since then the petitioner's husband no longer loves the applicant and child-

his son, even the petitioner. advising her then husband behave

rough and cruel, even acapkali hit victims and children, and husbands

often kalap and forget themselves, hence quarrels and disputes have

possessing a household life between the petitioner's husband and the petitioner;

d. that on May 21, 2007, the applicant ' s husband entered a lawsuit

divorce (talak) against the applicant at the Central Jakarta Religious Court, with

24

the reasons between the applicant's husband and the applicant "frequent disputes and

quarrels" that caused the household no longer hope

will be living in the space again;

e. In short, the judicial institution ultimately breaks off the divorce (talak) between

the petitioner's husband (Bambang Trihatmodjo) with the applicant for the reason

between the applicant and her husband there is often a dispute and a quarrel

that causes The household is hopeless.

As it is in the description of Article 39 of the paragraph (2) letter f Invite-

Invite Number 1 Year 1974 about Marriage (then Act

1/1974), which he considered. contrary to the right of protection of protection,

the certainty of law and justice.

II. The Legal Standing (Legal Standing) of the applicant

In accordance with the provisions of Article 51 of the paragraph (1) Act Number 24

of 2003 on the Constitutional Court as amended by

Act No. 8 of the Year 2011 about the Change of the Act

Number 24 of 2003 on the Constitutional Court (subsequently called the MK Act),

stating that the applicant is the party who considers the rights and/or

the constitutional authority is harmed by the The Act, which is:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is still alive and in accordance with

the development of the society and the principle of the unity state of the Republic of Indonesia

which is set in promulg;

c. the public or private legal entity; or

d. country institutions.

The above provisions are expressed in its explanation, that what

with "constitutional rights" is the rights provided in the Act

Basic Year 1945 (subsequently called UUD 1945).

Thus, in order for someone or a party to be accepted

as the applicant who has a legal position (legal standing) in

an Act testing application against the Constitution of 1945, then

first must explain and prove:

a. qualifiers in the a quo as referred to in Article 51

paragraph (1) of the MK Act;

25

b. the rights and/or its constitutional authority in the qualifying referred to which

is deemed to have been harmed by the enactment of the tested Act;

c. the rights and/or constitutional authority of the applicant as a result

expiring The Act is moveed for testing.

Further the Constitutional Court since the Decree No. 006 PUU-III/2005

and the Number 11 /PUU-V/2007, as well as subsequent rulings, have

provided the understanding and limitation. The cumulative amount of rights loss

and/or constitutional authority Arising out of the applicable

Act 51 paragraph (1) of the MK Act, must meet 5 (five)

terms that are:

a. the constitutional right of the applicant given by the Act

Basic Year 1945;

b. that the applicant ' s constitutional right is considered by the applicant to have

an aggrieved Act of an Act tested;

c. that the intended constitutional loss is specific

(special) and actual or at least as potential as by reasoning

a reasonable one is certain to occur;

d. Due (causal verband) between the loss and

the enactment of the legislation is being moveed to be tested;

e. It is possible that by the request of a request then

the constitutional loss postured will not or no longer occur.

Over those matters above, according to the Government needs to be questioned

the applicant ' s interest whether it is appropriate as a party that considers the right

and/or its constitutional authority is harmed by the enactment of the provisions

The explanation of Article 39 of the paragraph (2) of the Act of 1/1974. Also whether there is a loss

the constitutional applicant referred to be specific (special) and actual or

at least as potential as reasonable reasoning can be assured

will occur, and whether there is any relationship of cause (causal verband) between

the loss and the expiring Act is to be tested.

According to the Government, the question of the applicant as such is on the subject

The above request is pertintable with the application of the law in order

practice, i.e. divorce between The applicant with her husband, and against

the divorce lawsuit has been severed by judicial institutions ranging from the Court

Religion, the High Court of Religious Affairs, and the Supreme Court, with Amar Putermination

26

granted the divorce lawsuit filed by the plaintib (in this case by

the petitioner's husband itself).

The government may provide an affirmation that against any process

The divorce lawsuit, the applicant has used the entire channel of effort

the laws available, from the start of the appeal, up to the casings. Thus

according to the Government is the untimely domestic question of the applicant

with her husband leading to divorce in regard to as a loss

the constitutional.

Further according to the Government, the presumption of loss

constitutionality by the applicant experienced by the applicant is not located

causal relationship (causal verband) between the provisions is moveed for

tested with the chapters in the 1945 Constitution made the basis/footing

its pronunciation, because the pasal-pasaI a quo in UUD 1945 is conditio

sine quanon against any person who has met the terms of the Certain

to build a household and develop its offspring.

In other words, the case of the applicant is not related to

the constitutionality issue of the enforcement of the matter of charge norm of the Act

a quo, but rather related to implementation of the application of norms by enforing

The law which indeed must be taken one decision over any claim that

is submitted to the justice institution.

Based on those above, the Government argues the applicant

in this request does not meet the qualifications as a party that has

legal standing (legal standing) as Intended by the provisions

Article 51 of the paragraph (1) of the MK Act, nor on the basis of the Supreme Court ruling

The former Constitution.

Therefore, according to the Government is appropriate if Your Majesty

Chairman/Assembly of the Court of Justice The constitution wisely states that the applicant is not acceptable (niet ontvankelijk verklaard).

However, if Your Majesty the Chairman/Assembly of the Constitution

opts another, following we convey the Government explanation, as follows:

III. A Government Explanation Of The Material Requested By The Applicant.

Before the Government provides a detailed explanation/argumentation against

the postulate and presumption of the applicant above, it can be conveyed things

27

as follows:

A. In general the Law No. 1 of 1974 on Marriage does not conflict with the Basic Law of 1945.

Marriage is a form of constitutional rights embodiment

citizens of the country to be respected (to espect), protected (to protect) by any

people in order of a community of people, nation-to-be. and the country

as set forth in the Constitution of 1945, expressed expressly in Article

28B paragraph (1) of the Constitution of 1945: "Everyone has the right to form a family and

continue the descent through legitimate marriage", so that any person who

has fulfilled the terms to perform The marriage as in

specify in Act 1/1974 guaranteed its rights and the state has an obligation

to facilitate that marriage. Thus, a marriage performed by a man

and a woman of her true love must be harmonious, langgeng, and immortal,

so it has become a common obligation for husband and wife to

maintains and maintains a sacachy, mawaddah, and

warrohmah household. Nevertheless, the state is also obligated to facilitate if

the marriage is declared langgeng and timeless, but because of a cause and

certain reasons require that the marriage should be ended, through

The judicial institution of the authority is granted. From the description above, the 1945 Constitution has provided protection

and fair treatment of any person to foster and

develop the household, and also be given way out (law exit)

If the marriage is untenable as long as it can be.

B. Explanation Of The Norm Charge Materials is being honed for Testing

By The Petitioner. Against the application of the Explanation Explanation of Article 39 paragraph (2) of the letter f Act

1/1974 stating: The explanation of Article 39 of the verse (2) of the letter f Act 1/1974:

The reasons that can be made basis for divorce are:

a) One of the parties committing fornication or being a drunk, customary, gambler and another

so hard to heal;

28

b) One of the parties leaves another for 2 (two) consecutive years

with no other party permission for no valid reason or because of other things

beyond its will;

c) One of the parties is given a prison sentence of 5 (five) of the year or sentence

the heavier after the marriage took place;

d) One of the parties committed an atrocity or severe persecution

endangering against other parties;

e) One of the parties gets a disability body or disease resulting

cannot execute its obligations as husband-isteri;

f) Between husband and wife continues to dispute and

quarrel and not there is hope that there will be a life of rukun again in the house

ladder.The provisions above by the applicant are considered to be contrary to

provisions of Article 28D paragraph (1) and Section 28H paragraph (2) of the 1945 Constitution.

represents the following:

Article 28D paragraph (1) of the Constitution 1945: Any herhak of recognition, assurance, protection, and certainty

fair law as well as equal treatment before the law.

Article 28H paragraph (2) Constitution of 1945:

Each person entitled to a special ease and treatment for

obtain the same opportunities and benefits in order to achieve the equation and

justice.

Against the Presumption of the applicant above, the Government can

provide an explanation as follows: 1. Marriage in Religious Language is called mitsaqon gholidzon which is an

strong agreement. Marriage is a sacred agreement between the two

the sexting insan into one whole.

The marriage is meant to form a family life that

eternal, whole, harmonious, happy, and the same. Prosperity based on the Godhead Which

Maha Esa. It means that marriage is a form of servitude

to God the SWT. For that in marriage is required

understanding, understanding, awareness forbuilding a family

which is sakinah, mawaddah, and warrohmah. This is in accordance with the philosophy

marriage as set out in Article 1 of the Act 1/1974 that states:"