Criminal Sanction Disparity Between Marriage-Impediment Offences and Cohabitation under Indonesia's New Criminal Code: A Comparative Study of Muslim-Majority Jurisdictions

Abstract

This article examines the disparity between the penalties for marriage-impediment offences under Article 402 and cohabitation under Article 412 of Indonesia's Law Number 1 of 2023 on the Criminal Code. It rejects the shorthand description of Article 402 as an "unauthorized polygamy offence" because criminal liability requires an existing marriage that constitutes a lawful impediment, the offender's knowledge of that impediment, and, in the aggravated form, concealment of it from the other party. Using normative legal research with statutory, conceptual, and functional-comparative approaches, the study compares Indonesia with Saudi Arabia, the United Arab Emirates, the Federal Territories of Malaysia, Pakistan, and Iran through common variables: prior authorization for plural marriage, consequences of non-compliance, the type of non-marital intimate conduct criminalized, prosecution triggers, penalty ranges, protected legal interests, and victim protection. The comparison shows that penalty differences partly reflect distinct protected interests and degrees of culpability, but problems of fair labelling, certainty of offence elements, and proportionality remain. Reform should clarify criminal elements through legislation or lawful judicial interpretation, distinguish the legal complaint required for Article 412 from the provision of information to authorities, avoid compulsory mediation, and strengthen family-law remedies without expanding criminal offences through subordinate regulation.