HOMOSEXUALITY AS A GROUND FOR ANNULMENT OF MARRIAGE: DISPARITY IN RELIGIOUS COURT DECISIONS RESULTING FROM LEGAL INTERPRETATION OF THE MARRIAGE LAW AND THE COMPILATION OF ISLAMIC LAW

Abstract

The status of homosexuality as a reason for annulment of marriage is still an unclear area in Indonesia's national legal system. Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law (KHI) does not explicitly establish it as a basis for annulling marriage. This study aims to examine the position of homosexuality in national marriage law and explore its possible interpretation as a valid reason for annulment of marriage. Using a juridical-normative approach that includes the analysis of laws and regulations, legal concepts, and a systematic approach, this study finds that homosexuality can be considered as a form of defect in subjective conditions in marriage, especially related to the inability to fulfill obligations as husband and wife as stated in Article 27 paragraph (2) of the Marriage Law and Article 72 paragraph (2) of the KHI. However, the recognition of homosexuality as a basis for annulment is highly dependent on the interpretation of judges, so it has the potential to cause differences in verdicts within the Religious Court. These findings make a new contribution through an interpretive approach to the norm vacuum, while remaining grounded in the purpose of marriage and the dominant religious values in Indonesia.