The fact siri second marriage, that marriage is valid according to the provisions of the Shari'a but not listed in the civil registration agency, in fact there are two laws that must be assessed differently, namely (1) the law of marriage, and (2) the law does not record the marriage in the state recording agencyFrom the aspect of marriage, the marriage siri remain valid under the terms of the Shari'a, and the perpetrators should not be considered to have committed kemaksiyatan, thus entitled to legal sanctions imposed. The reason, a new act entitled considered kemaksiyatan and sanctioned in the world and the hereafter, when it was categorized "doing anything forbidden" and "leave the obligatory". Someone had to do kemaksiyatan declared invalid when she was working on an unlawful act, or abandon the obligations stipulated by the Shari'a.Similarly, people who leave or working on the lawless acts of the Sunnah, permissible, and makruh, then that person may not otherwise have done kemaksiyatan; thus entitled to a sanction in the world and the hereafter. For that, a qadliy should not be penalizing people who abandon the sunnah acts, and permissible; or do act permissible or makruh.New person entitled to legal sanctions imposed on the world when the person first, leaving the obligation, such as leaving the prayer, jihad, and so forth, secondly, doing forbidden acts, such as drinking khamer and berate the Apostle of Allah, and so forth; third, breaking the rules- state administrative rules, such as violation of traffic regulations, building permits, and other rules established by the state.Based on the information it can be concluded; marriage that is not recorded in the recording of state institutions should not be regarded as a criminal act so that the perpetrators are entitled to a sin and punishment in the world. Because the marriage that he did have fulfilled the pillars of marriage laid down by Allah Almighty. As for the pillars of marriage are as follows: (1) guardian, (2) two witnesses, and (3) consent qabul. If these three things are met, then the person is a legitimate marriage in the Shari'a, although not recorded in the civil registry.The law relating to marriage is not registered in the state recording agency, then this case can be detailed as follows.First, basically, the recording function of recording the institution of civil marriage is for someone to have the evidence (Bayyinah) to prove that he really has done a wedding with another person. Therefore, any evidence which is considered valid as evidence syar'iy (Bayyinah syar'iyyah) is the official document issued by the state. When the marriage listed in the civil registration agency, surely someone has had an official document that can he used as evidence (Bayyinah) before the judicial council, when there are disputes relating to marriage, or disputes that were born out of marriage, like inheritance, custody children, divorce, maintenance, and so forth. However, official documents issued by the state, is not the only evidence syar'iy. Testimony from witnesses of the marriage or people who witnessed the wedding, also valid and should be recognized by the state as evidence syar'iy. State should not establish that the only items of evidence to prove the validity of one's marriage is a written document. The reason, the Shari'a has determined the validity of evidence other than written documents, such as the testimony of witnesses, oath, acknowledgment (iqrar), and so forth. Based on this explanation can be concluded that, the man who married siri still have a legitimate inheritance relations, and other relationships are born of the marriage. In addition, testimony from witnesses who attended siri marriage is legitimate and should be recognized as evidence syar'iy. State must not deny their testimony just because the marriage is not recorded in civil registration agency, or do not recognize inheritance relationships, nasab, and other relationships are born of the marriage siri.Second, the golden era of Islam, in which the recording system has grown rapidly and developed, we've never come across any Islamic government that criminalizes people who perform marriages that are not listed on the institution's official records state. More than that, most people at that time, perform marriages without recorded in civil registration agencies. It can not be stated that at the time of recording underdeveloped institutions, and state of society at that time before society as complex as the situation now. The reason is, the rulers and Muslim clerics at that time understand that the legal origin of marriage records are not mandatory, but permissible. They also understand that proof syar'iy not just a written document.The Prophet himself did the wedding, but we never find a history that listed the marriage he or she requires the Companions to register their marriages, although the command to write (record) a few muamalah been mentioned in the Qur'an, for example, the word of Allah swt ;ياأيها الذين ءامنوا إذا تداينتم بدين إلى أجل مسمى فاكتبوه وليكتب بينكم كاتب بالعدل ولا يأب كاتب أن يكتب كما علمه الله فليكتب وليملل الذي عليه الحق وليتق الله ربه ولا يبخس منه شيئا فإن كان الذي عليه الحق سفيها أو ضعيفا أو لا يستطيع أن يمل هو فليملل وليه بالعدل واستشهدوا شهيدين من رجالكم فإن لم يكونا رجلين فرجل وامرأتان ممن ترضون من الشهداء أن تضل إحداهما فتذكر إحداهما الأخرى ولا يأب الشهداء إذا ما دعوا ولا تسأموا أن تكتبوه صغيرا أو كبيرا إلى أجله ذلكم أقسط عند الله وأقوم للشهادة وأدنى ألا ترتابوا إلا أن تكون تجارة حاضرة تديرونها بينكم تديرونها بينكم فليس عليكم جناح ألا تكتبوها وأشهدوا إذا تبايعتم ولا يضار كاتب ولا شهيد وإن تفعلوا فإنه فسوق بكم واتقوا الله ويعلمكم الله والله بكل شيء عليم"O ye who believe, if you bermu` amalah not in cash for the specified time, you should write it down. And let a writer in you write it correctly. And do not be reluctant writer to write as Allah has taught him, then let him write, and let people who owe it mengimlakkan (what would write it), and let him fear Allah his Lord Allah, and let it reduce a bit rather than debt. If the debtor is the weak minds or weak (condition) or he himself is unable mengimlakkan, then let his guardian mengimlakkan honestly. And persaksikanlah with two witnesses of the men among you). If no two men, then (be) a man and two women from the witnesses that you ridhai, so that if one forgot the other one reminded him. Do the witnesses were reluctant to (give details) if they are called, and do not be bored to write that loan either small or large until the deadline to pay. That is, more equitable in the sight of Allah and more to strengthen the testimony and closer to not (cause) doubts, (mu `amalahmu write it), except if you` amalah that you run the cash trade among you, then there is no sin for you, (if) you do not write it. And persaksikanlah if you sold and bought, and not the author nor witness suffer harm. If ye do (such), then surely it is a wickedness in you. And fear Allah, Allah taught you, and Allah is Aware of all things ". [TQS AL Baqarah (2):Third, the treasures of Islamic justice, it is true, the state is entitled to impose sanctions to the person mukhalafat mukhalafat action. Because the state (in this case a Khalifah and the one who lifted) have the right to establish certain rules to regulate the affairs of the people who have not established rules and procedures for regulation by the Shari'a, such as traffic affairs, construction, exploration, and forth. Khalifah has the right and authority to manage the affairs of this kind based on ijtihadnya. Rules established by the caliph or qadliy in the case-case of this kind must be obeyed and implemented by the people. Anyone who violates provisions of the caliph in such affairs, he had fallen in action and are entitled to sanctions mukhalafat mukhalafat. For example, a caliph entitled to set the interval the home page and public roads, and forbids people to build or plant on his side at a distance of few meters. If someone violates this requirement, the caliph may impose sanctions on him with fines, flogging, imprisonment, and so forth.Khalifah also have the authority to determine the dose, the scales, as well as special measures for the regulation of sale and purchase and trade affairs. He is entitled to impose sanctions for those who violated his orders in that respect. Khalifah also have the authority to set certain rules for the cafes, hotels, game rentals, and other public places, and he is entitled to impose sanctions on those who violate the rules.Similarly, in terms of setting a wedding affairs. Caliph is okay to assign certain administrative rules to regulate affairs of marriage, for example, rules that require people who are married to her marriage record in the official records state agencies, and others. Such rules must be obeyed and implemented by the people. For that, the state reserves the right to provide sanctions for those who are not registered her marriage to the state recording agency. Because the people who are not registered her marriage in the state recording agency - even though the state has established such a rule has been dropped in on the action-mukhalafat. The form and content mukhalafat sanctions handed over entirely to the Deputy and the person who gave the authority.To note here is that the party is penalizing legitimate syar'iy mukhalafat just a caliph who dibai'at by Muslims, and people appointed by the caliph. In addition to the caliph, or persons designated, does not have the right and authority to impose sanctions mukhalafat. On that basis, the head of state who do not have aqad bai'at with the people, then head of state of this kind imposed sanctions were invalid mukhalafat to its people. Therefore, a new person entitled to be obeyed and regarded as the head of state if the people have membai'atnya with bai'at in'iqad and obedient. The person who is the head of state without going through the process of folk bai'at (in'iqad and obedient), then he is not a legitimate ruler, and people do not have the obligation to obey and listen to his orders. Moreover, if the rulers were the rulers who implement kufr base of democracy and secularism, then people would not be allowed to give obedience to them.Fourth, if the marriage siri done because the cost factor, so in these cases the state may not criminalize and impose sanctions to the perpetrators mukhalafat. Because the person is not registered her marriage due to his inability; while the Shari'a does not burden a person beyond his limits. Therefore, the State should not criminalize these people, even obliged to provide free recording services to people who are unable to register her marriage in the state recording agency.Fifth, in effect, the Prophet has encouraged his people to spread the wedding by holding walimatul 'ursy. Prompts for walimah, although not to arbitrate mandatory but highly recommended prophet (Sunnah muakkadah). The Holy Prophet said;حدثنا أولم ولو بشاة"Is there walimah although with a goat". [HR. Imam Bukhari and Muslim]Many positive things that can be achieved by someone from broadcasting marriage; of which are: (1) to prevent the emergence of defamation in the midst of society, (2) allows the public to provide testimony, if later there are problems concerning the bride and groom; (3) makes it easy to identify if someone is married or not.This sort of thing is certainly different from the marriage that is not published, or suppressed (siri). Addition will lead to the emergence of defamation, for example if a married woman pregnant siri, it would appear negative allegations from the public against these women; siri marriage will also complicate the culprit when asked for testimony about her marriage. If he does not have an official document, so in all cases requiring testimony, he had to present witnesses sirinya marriage, and this will certainly be very difficult for him. On that basis, the suggestion to register the marriage in the state recording agency to be relevant, for the sake of easiness for the husband and wife and society and to prevent libel.
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