2024-03-19 09:28:24
Jakarta –
Artis Tsania Marwa as a witness in the trial of the 1946 Criminal Code (KUHP 1946). During the trial, Tsania gave testimony as the mother of two children who were taken by her ex-husband.
“I am divorced and have custody of my children,” said Tsania in the trial as quoted on the Constitutional Court (MK) website, Tuesday (19/3/2024).
The trial was held at the MK building, Monday (18/3). The trial was chaired by Chief Constitutional Court Suhartoyo.
During the trial, Tsania said that she is a mother of two children with the initials SMF who are currently 10 years old and AS is 9 years old. Tsania has divorced her husband and the court has decided on custody of her children.
However, she said, her two children were separated from her because her ex-husband’s access was closed. He said the Cibinong Religious Court failed to carry out child custody rights.
“Finally, on April 29 2021, I and the Cibinong Religious Court carried out the execution of the child custody decision which had permanent legal force. However, the Cibinong Religious Court stated that the execution failed because the party respondent to the execution did not want to follow the child custody decision and made the execution process difficult. “explained Tsania.
Tsania said she had been separated from her children for seven years. He felt very disadvantaged because during the legal process he had to pay for legal assistance, legal fees and other consultation fees.
“Extraordinary sadness, I feel that I have not received justice from a custody decision with permanent legal force, and most importantly, as a mother who loves my two children, I don’t know how they are developing, and of course they have lost the figure of the biological mother whom I took care of from the start of their pregnancy. and I love him with all my soul until the end of my life,” continued Tsania.
Tsania admitted that she had tried to seek help and consulted with investigators at the National Police Criminal Investigation Unit PPA Unit regarding the incident she experienced. He admitted that he asked regarding the implementation and legal views of investigators regarding the child kidnapping article, namely Article 330 of the Criminal Code.
According to Tsania, the investigator explained that if one of the parents, whether they have custody or non-custodial rights, takes away, then Article 330 of the Criminal Code cannot be applied. This, he said, was because the person carrying the child still held the status of parent.
“At that time, I was really confused regarding finding a place to get justice in this country. There were many suggestions from lawyers that Article 330 of the Criminal Code might be implemented. However, in fact, it might not be implemented by law enforcement officials. Where is this justice?” said Tsania.
For your information, case Number 140/PUU-XXI/2023 was filed by five mothers, namely Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani. The five Petitioners are mothers who are fighting for child custody.
The Applicants tested the phrase ‘Whose goods’ in Article 330 paragraph (1) of the 1946 Penal Code (KUHP 1946). The content of Article 330 paragraph (1) of the Criminal Code is:
Any person who deliberately withdraws a person who is not yet of legal age from the authority prescribed by law over him, or from the supervision of a person authorized to do so, is threatened with imprisonment for a maximum of seven years.
In the preliminary examination trial held at the Constitutional Court, Thursday (2/11/2023), the applicant’s attorney, Virza Roy Hizzal, said that the applicants had something in common, namely having custody of their children following divorcing their husband but did not receive this right because their ex-husband took them away. their children by force.
For example, what happened to Aelyn Halim. She admitted that she did not know where her daughter was because her ex-husband had hidden her. Aelyn has reported the incident to the police, but Aelyn’s report was not accepted on the grounds that it was her biological father who took her away.
Virza said the state must be present when violations of children’s rights occur. The act of separating and closing children’s access to their parents has a negative impact on children’s growth and development is not in the realm of private law but has entered the public realm, in this case criminal law.
The petitioners asked that the phrase “Whoever” in Article 330 paragraph (1) of the Criminal Code be applied to every person, including the biological father or mother of the child, as a legal subject. The Petitioner requested that there be no exceptions that give absolute power and authority to the father or mother if there is a violation of the child’s rights so that they cannot be held accountable.
In the petitum, the petitioners asked the Constitutional Court to declare the phrase ‘Whoever’ in Article 330 paragraph (1) of the Criminal Code originates from Criminal Code for the Dutch – Indies (Staatsblad 1915 Number 732), which then came into effect based on Law 1/1946 concerning the Regulation of Criminal Justice in conjunction with Law 73/1958 concerning Declaring the Applicability of Law 1/1946 concerning Criminal Law Regulations for the Entire Territory of the Republic of Indonesia, contrary to the 1945 Constitution and having no legal force binding, as long as it is not interpreted as ‘everyone without exception of the child’s biological father or mother’.
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