Ratio Decidendi of The Supreme Court Verdict Number 1400/K/Pdt/1986 about Interfaith Marriage in Islamic Law Perspective

Abstract

Ratio Decidendi of The Supreme Court Verdict Number 1400/K/Pdt/1986 conceptually gives meaning to the dogmatic changes of interfaith marriage especially to Indonesian Islam people. This verdict became a jurisprudence in the ratio decidendi that stated that interfaith marriage is not governed by the marriage law. In legal practice we recognize the Non-Liquet principle, which means that the court could not reject any cases given to them because of the obscureness or the absence of the law itself. This research is an empiric and normatic research, with legal approach and case approach. Ratio decidendi of the Supreme Court verdict number 1400/K/Pdt/1986 is not in accordance with the fact that Indonesia’s law system is civil law system. The marriage law does not explicitly govern interfaith marriage, but in article 2 paragraph (1) of the marriage law stated that the legal requirement of a marriage is restored to religious norms of those who want to marry. On this Supreme Court Verdict, those who want to marry are Christian and Islam whose religious norms on those two religions prohibit interfaith marriage. In accordance with the Res Judicata pro Veritate Habetur principle that is universally valid, this Supreme Court Verdict remains true. Judges are advised to remain guided by the legal system adopted by Indonesia (civil law) and put the legislation as the primary legal sources, so that disparity of law verdict could be avoided.