LARANGAN POLIGAMI DALAM TURK MEDENI KANUNU DI TURKI: HETERODOKSI KEAGAMAAN, POLITIK HUKUM, DAN KESETARAAN GENDER

Vian Juanda, NIM.: 22203012047 (2024) LARANGAN POLIGAMI DALAM TURK MEDENI KANUNU DI TURKI: HETERODOKSI KEAGAMAAN, POLITIK HUKUM, DAN KESETARAAN GENDER. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Polygyny in the context of Islamic law is essentially permissible, provided it is conducted fairly. Of particular interest is that Türkiye has become the first Muslim-majority country to completely prohibit polygamy, whether polygyny or polyandry. This prohibition is enshrined in the legal instrument known as the Turkish Civil Code. The penalty for practicing polygamy is stipulated in the Turkish Penal Code, with a two-year criminal sentence. This penalty applies to both those who engage in polygamy and those who marry someone already married. Enforcement of this penalty can only occur when the aggrieved party files a complaint (private prosecution). The prohibition of polygamy in Türkiye has been discussed by scholars within the context of conventional Islamic law. Unlike previous research, this study focuses on exploring the prohibition of polygamy in Turkey within the context of religious heterodoxy, legal politics, and gender equality. This type of research is qualitative research with a literature review. I have examined religious heterodoxy, legal politics, and gender equality using Khaled El Fadl's negotiative hermeneutics, focusing on balanced dialogue between text, author, and reader. I have positioned the Turkish Civil Code as the text, the Turkish government as the author, and Turkish society as the reader. Analyzing the relationship between author and text, I have used religious heterodoxy as a contextual consideration in the prohibition of polygamy in Turkey. The relationship between author and reader is examined through the role of legal politics in shaping the prohibition of polygamy. Furthermore, in analyzing the relationship between reader and text, I have used gender equality as an indicator of the prohibition of polygamy. As a result, in the context of religious heterodoxy, the prohibition of polygamy in the Turkish Civil Code is essentially in line with the reality in Turkey, which is characterized by a male-dominated population from 2007-2023 and an unstable economy. This indicates that the urgency for polygyny is not pressing in Turkey. In the context of legal politics, the prohibition of polygamy in the Turkish Civil Code is fundamentally based on the voice of the people. Starting from the formation of the Turkish Constitution, which contains principles of secularism and gender equality, the Constitution was approved with a 91.4% majority in the referendum. Referring to the Constitution, the Turkish Civil Code was established based on secularism and gender equality, and therefore polygamy is not included in it. Regarding the prohibition of polygamy that includes elements of gender equality, Turkish society is divided into two groups: those who comply, with a percentage of 98%, and those who violate (engage in polygyny), with a percentage of 2%. Within the 2% group, there are two typologies of reader responses: readers who report such violations, leading to sanctions against those practicing polygamy, and readers who do not report due to unstable financial conditions. Considering that the enforcement of sanctions for polygamous practices lies in the hands of readers, it indicates that a negotiation has taken place between the text, author, and reader

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