Right to Marry a Person of any Race / Right to Raise a Family

Indonesia: Petition of child bride survivors (2018)

Three child bride survivors and their lawyer from the Indonesian Coalition to End Child Marriage (Koalisi 18+) filed a judicial review petition before the Constitutional Court of Indonesia to challenge the constitutionality of Article 7 of the 1974 Marriage Law, which sets the minimum age requirement for women to marry at 16.

In a hearing presided over by Chief Justice Anwar Usman, the court argued that the rule was a form of gender-based discrimination since the minimum age for requirement for  men to marry was 19, and therefore contradicted the 1945 Constitution.

The court, however, refused to grant the plaintiffs' demand to raise the minimum age for women to marry to that of the age for men, arguing that it was the authority of lawmakers and the court did not want to make a decision that could prevent any future law revisions.  

"[The court] orders lawmakers to revise the 1974 Marriage Law, particularly in regard to the minimum age for women to marry, within a maximum three years," Anwar read out the ruling on Thursday.

Justice Saldi Isra said the provision in article would remain valid until the deadline of three years. Should there be no revision prior to the deadline, the minimum age requirement would be harmonized with the 2002 Child Protection Law, which defines a child as someone below 18 years old.
Justice I Dewa Gede Palguna said that those at the age of 16 were still categorized children under the Child Protection Law, meaning that those who married at 16 were considered as being involved in child marriage, which had negative impact and threatening children's welfare.

"Not only in terms of negative impact on health, there are possibilities of child exploitation and the increase of threats of violence against children in underage marriage," Palguna said, adding that child marriage also threatened children's rights to education.



On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo) filed a petition with the Regional Trial Court for the cancellation of entry of marriage in the Civil Registry of San Juan, Metro Manila, by virtue of a judgment of divorce rendered by a Japanese court. The Philippine court ruled that the petition could not be granted because under Philippine civil law, Filipinos married to non-Filipinos cannot file a petition for divorce in court because they have not right to divorce.

The Supreme Court, on appeal from a decision of the Court of Appeals, reversed the decision of the lower court and ruled that the law cannot be interpreted in ways that discriminate against Filipinos.

“To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after a foreign divorce decree that is effective in the country where it was rendered, is no longer married to the Filipino spouse. The provision is a corrective measure to address an anomaly where the Filipino spouse is tied to the marriage while the foreign spouse is free to marry under the laws of his or her country. 42 Whether the Filipino spouse initiated the foreign divorce proceeding or not, a favorable decree dissolving the marriage bond and capacitating his or her alien spouse to remarry will have the same result: the Filipino spouse will effectively be without a husband or wife. A Filipino who initiated a foreign divorce proceeding is in the same place and in like circumstance as a Filipino who is at the receiving end of an alien initiated proceeding. Therefore, the subject provision should not make a distinction. In both instance, it is extended as a means to recognize the residual effect of the foreign divorce decree on Filipinos whose marital ties to their alien spouses are severed by operation of the latter's national law.”

The declared State policy that marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State, should not be read in total isolation but must be harmonized with other constitutional provisions. Aside from strengthening the solidarity of the Filipino family, the State is equally mandated to actively promote its total development. 79 It is also obligated to defend, among others, the right of children to special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development. 80 To our mind, the State cannot effectively enforce these obligations if we limit the application of Paragraph 2 of Article 26 only to those foreign divorce initiated by the alien spouse. It is not amiss to point that the women and children are almost always the helpless victims of all forms of domestic abuse and violence.

Moreover, in protecting and strengthening the Filipino family as a basic autonomous social institution, the Court must not lose sight of the constitutional mandate to value the dignity of every human person, guarantee full respect for human rights, and ensure the fundamental equality before the law of women and men.


Shayara Bano was married for 15 years. In 2016, her husband divorced her through talaq–e-bidat (triple talaq). This is an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘talaq’ (Arabic for divorce) three times at once in oral, written or, more recently, electronic form. Ms Bano argued before the Supreme Court of India that three practices – triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) – were unconstitutional. Specifically, she claimed that they violated several fundamental rights under the Constitution of India (Constitution) namely, Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). Her petition underscored how protection against these practices has profound consequences for ensuring a life of dignity. Further, it asserted that failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants.

In this case, the Court focused solely on the practice of triple talaq. In August 2017, the Court, by a majority of 3:2, set aside the practice of triple talaq. Of the justices who voted against the practice, two held it to be unconstitutional while the third relied on case precedents to reiterate that such practice was impermissible under Islamic law.

The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937. The Court clarified that “…an action that is arbitrary, must necessarily involve negation of equality” and determined, as triple talaq provides that “…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it”, this arbitrariness violates Article 14. The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1) all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as they are inconsistent with the fundamental rights set out in the Constitution. The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic scholarship, concluded that it is not essential to the practice of Islam.


In 2013, Petitioner Chia-Wei Chi’s application for marriage registration was rejected by the Household Registration Office at Wan-Hua District of Taipei City. After exhausting the ordinary judicial remedies, Chi filed a petition to this Court in August 2015. He claimed that Articles 972, 973, 980, and 982 of the Civil Code, prohibiting same-sex marriage, violate the Constitution. Another Petitioner, the Taipei City Government, petitioned to this Court in November 2015, claiming that the Marriage Chapter of the Civil Code is in violation of the Constitution. This Court decided to consolidate these two petitions and heard oral arguments on March 24, 2017.

The Constitutional Court ruling:

  The provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the purpose of living a common life. The said provisions, to the extent of such failure, are in violation of constitution’s guarantees of both the people’s freedom of marriage under Article 22 and the people’s right to equality under Article 7. The authorities concerned shall amend or enact the laws as appropriate, in accordance with the ruling of this Interpretation, within two years from the announcement of this Interpretation. It is within the discretion of the authorities concerned to determine the formality for achieving the equal protection of the freedom of marriage. If the authorities concerned fail to amend or enact the laws as appropriate within the said two years, two persons of the same sex who intend to create the said permanent union shall be allowed to have their marriage registration effectuated at the authorities in charge of household registration, by submitting a written document signed by two or more witnesses in accordance with the said Marriage Chapter.


The UDHR was cited in an attempt to convince the Supreme Court of Nauru that a right to marry a non-Nauruan woman should be incorporated into the Nauru Constitutional Bill of Rights. The Supreme Court rejected this attempt, however.


The Fiji Supreme Court referred to various international human rights instruments when it ruled on domestic family law issues.

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