Adultery Offences in the Comparison of National and Hindu Law

Abstrak Negara-negara di dunia tidak memiliki ketentuan yang sama dalam menentukan delik perzinahan. Sebagian negara sudah tidak lagi memasukkan perzinahan dalam hukum pidananya, namun sebagian lagi masih memasukkan perzinahan sebagai kejahatan dalam hukum pidananya, termasuk Indonesia. Kajian mengenai perzinahan juga dilarang dalam hukum agama. Dalam penelitian ini akan dibahas dua permasalahan yakni kajian hukum pidana nasional tentang delik perzinahan serta relevansinya, dan kajian perzinahan dalam hukum Hindu. Indonesia mengatur delik perzinahan dalam Pasal 284 KUHP. Berdasarkan ketentuan tersebut, maka ruang lingkup perzinahan adalah ketika salah satu atau kedua pelaku sudah terikat perkawinan. Pengertian ini tentu memiliki perbedaan dengan definisi perzinahan dalam hukum agama. Hukum Hindu melarang perzinahan sebagaimana yang diatur dalam pustaka suci Manawa Dharmasastra, Sarasamusccaya, Arthasastra, Adi Agama, Kutara Manawa, Manawa Swarga dan lain-lain. Larangan perzinahan dalam hukum Hindu didasarkan pada pemikiran mengenai perlunya penghormatan terhadap perempuan. Namun demikian, hukum Hindu tidak dapat diterapkan secara langsung kepada umat Hindu, melainkan harus diinternalisasikan ke dalam hukum adat. Hukum Hindu hanyalah ajaran moral yang tidak dapat menjatuhkan sanksi hukum. Kata Kunci: Perzinahan, perbandingan hukum, hukum nasional, dan hukum Hindu.

Title in English

Abstract Countries in the world do not have the same provisions in determining adultery offenses. Some countries no longer include adultery in their criminal law. However, some others still include adultery as a crime in their criminal law, including Indonesia. The study of adultery is also prohibited in religious law. In this research, two issues will be discussed, namely the study of national criminal law on the crime of adultery and its relevance, and the study of adultery in Hindu law. Indonesia regulates adultery charges in Article 284 of the Criminal Code. Based on these provisions, the scope of adultery is when one or both of the perpetrators are married. This understanding certainly has a difference with the definition of adultery in religious law. Hindu law forbids adultery as regulated in the sacred literatures of Manawa Dharmasastra, Sarasamusccaya, Arthasastra, Adi Agama, Kutara Manawa, Manawa Swarga and others. The prohibition of adultery in Hindu law is based on the thought about the need for respect for women. However, Hindu law cannot be applied directly to Hindus, but must be internalized into customary law. Hindu law is only a moral teaching which cannot impose legal sanctions. Keywords: Adultery, comparative law, national law and Hindu law. A. Introduction1

Adultery in English is referred to fornication which means intercourse between unmarried adults and adultery which means intercourse done by men with women who are not husband and wife and one or both of them are bound in marriage with another husband / wife.2 Hoge Raad in legal consideration of an arrest (5-2-1912) states that "intercourse is a combination of male genitalia with female genitalia which is usually done to have children, in which male genital enters female genital which then releases semen ".3

* Lecturer of Law at the Hindu Law Study Program, Faculty of Dharma Duta, Universitas Hindu Negeri I Gusti Bagus Sugriwa,

Jalan Ratna No 51 Denpasar, Bali, alitputrawan.80@gmail.com, Dr, S.Ag, S.Ag., M.Fil.H. (Institut Hindu Dharma Negeri Denpasar).

2 Alan Steven, Kamus Lengkap Indonesia-Inggris, Bandung: Mizan Pustaka, 2009, p. 1102. 3 Adami Chazawi, Tindak Pidana Mengenai Kesopanan, Jakarta: Raja Grafindo Persada, 2005, p. 58

Adultery is a criminal offense as regulated in Article 284 of the Criminal Code. The problem of adultery in Indonesia is a serious problem. Therefore, adultery is classified in the classification of crime in criminal law. On the other hand, adultery is indeed as a reason in filing for divorce.4 In a legal perspective, many countries view adultery as a crime, but some countries try to criminalize the adultery offense. Regarding this matter, Jonathan Turley states:

Across the country, some social conservatives are fighting for what they view as a critical article of faith: criminal adultery laws. In the U.S., in the year 2010, people can still be prosecuted for breaching their marital vows. The laws are some of the last remnants of our Puritanical past, where infidelity was treated as not only a marital but also as a criminal matter. While the laws have been challenged as unconstitutional, many people are resistant to the idea of removing such "morality crimes" from our books.5

India is same as Indonesia, which still sees adultery as a crime that can be punished. Kumar Surendra writes about the legal conditions of countries which actually carry out a policy of decriminalization of adultery on the basis of gender equality. Kumar Surendra states as follows:

It is significant and noteworthy that while in Britain itself the law on adultery has been abolished even as a tort way back in 1857, the law was also abolished in Japan in 1947, in South Korea in 2015 and by most of the countries except countries like Philippines, United States and Islamic States like Pakistan, Saudi Arabia and Iraq etc. Most of the European countries like Malta, Italy, France, Spain, Portugal, Greece, Switzerland, Turkey, Romania etc., and the earlier laws of adultery as a crime have been abolished long back. Even some states of US like West Virginia, Colorado and New Hampshire have abolished the law. Even the United Nations Entity for Gender Equality and the Empowerment of Women and the United Nations Working Group on Discrimination Against Women in Law and Practice have called for abolition of criminalization of adultery saying it leads to discrimination and violence against women. In some Islamic countries punishments like stoning and flogging have been assigned for adultery and many cases of honour killing have been noticed. The issue of adultery and the act is more or less a moral crime and an issue to be decided between the families themselves rather than making it public and thereby making the whole issue more complex to resolve between a husband and wife within their four walls.6

Adultery in addition to being a legal problem, is actually a social problem in the community; therefore, criminal law is an ultimum remedium in which criminal is the last solution. Adultery can be categorized in social formulation as a deviation of behavior, meaning that it is seen in a

4 In Article 39 paragraph (2) of Law Number 1 of 1974 concerning Marriage states as follows: Reasons that can be used as a basis for divorce are:

a. One party commits adultery or becomes a drunkard, compactor, gambler and others who ar is difficult to cure;

b. One party leaves the other for 2 (two) consecutive years without the permission of the other party and without a valid reason or for any other reason against its will;

c. One of the parties receives a sentence of 5 (five) years in prison or a more severe sentence after the marriage took place;

d. One party commits atrocities or severe maltreatment which endangers the other party; e. One of the parties has a bodily disability or illness that results in being unable to carry out his obligations as a husband /

wife; f. Between husband and wife, there are continual disputes and quarrels and there is no hope of living in harmony again in

the household. 5 Jonathan Turley, Adultery, in many states, is still a crime, http://usatoday30.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm 6 Kumar Surendra. "Decriminalisation of Adultery: A Step Towards Rights Based Social Relations." Research Journal of Humanities and Social Sciences 10.2 (2019): 553-558.

sociological framework as an act of seriousness in its violation of people's moral feelings is in the lowest level.7

Religious approaches and social norms need to be prioritized in preventing adultery. The constitution in Indonesia allows the inclusion of customary and religious approaches in enhancing the legal culture of society. As stated in several theories about the Indonesian constitution, that the Indonesian constitution has a philosophical affiliation with informal law, namely hukum adat (customary law), hukum agama (religious law), and hukum kebiasaan (customary law). This proves that the Indonesian constitution plays a role in fostering political ethics that do not have the concept of segregation so as to find an ideal constitution in developing state governance.8

Adultery is forbidden based on the word of Allah SWT and the words of the Prophet Muhammad, the basis of the law of forbidden adultery in the Qur'an, among others, is contained in surah an-Nur (24) verse 2 which means; " Women who commit adultery and men who commit adultery, then every one of them bears one hundred times whipped, and do not be compassionate to both prevent you from (practicing) the religion of God. Punishment for the adultery actor is Jarimah Hudud or had punishment, that is punishment which has been determined in kind and amount and is God's right. Thus, the sentence does not have the lowest or highest limit.9

In the Qur'an, Surah Al-Isra 'verse 32, Allah says, which means, "And do not approach adultery, in fact adultery is a cruel act and a bad way". Prohibition of approaching adultery means that not to commit adultery, to do anything that usually becomes preliminary or can lead to adultery is included in the act that violates decency. By referring to Al-Qur'an surah An-Nur verse 2 and authentic hadith, adultery is divided into two, namely zina muhshan and ghairu muhshan. The types of sanctions between the two are different. Sanctions for adultery muhshan is stoning, that is, the perpetrator is buried at the shoulder and then stoned to death. As for the perpetrators of zair ghairu muhshan, the penalty is to be flogged a hundred times and be exiled for one year.10

As the teachings of Islam forbidding adultery, Hinduism also prohibits adultery. Adultery is said to be the source of destruction and the act of adultery is considered to remarry, as mentioned in Manawa Dharmasastra VIII.353 "By adultery results in the birth of mixed colors between humans; then it gives rise to sin which finally cuts to its roots and causes destruction of everything. " Furthermore, Manawa Dharmasastra V.163 states that "A woman who commits adultery with a man of a higher class, leaving her own husband who is of a lower class will be deplorable in life in this world and named after a woman who remarries even though only adultery”.

The word adultery in Hindu law is Paradara, which means the wife of another person. What is meant by paradara is any indecent act towards another person's wife. Paradara was very highlighted in the Majapahit Era because the view of the Archipelago or Hindu Majapahit that was public welfare was highly dependent on the peace and welfare of the family (especially the wife). Therefore, any attempt to disrupt other people's families was a very forbidden act, even in the Religious Law (UU Majapahit) contains a prohibition for men to talk in quiet places

7 Muhamad Mustofa, Kajian Ilmiah Sosiologi Kriminalitas, , Jakarta: Selapa Polri: 2001, p. 1 8 Desak Ayu Gangga Sitha Dewi, "Kontroversi Perzinahan di Mata Agama dan Hukum yang Berlaku di Indonesia dengan Fakta Lapangan." Jurnal Supremasi, Vol.10, Issue 1, 2020, p. 48. 9 Andriasari, Dian. "Studi Komparatif Tentang Zina Dalam Hukum Indonesia Dan Hukum Turki." Syiar Hukum 13.3 (2011): 265-279, 275. 10 M Nurul Irfan, Hukum Pidana Islam, Jakarta: Amzah, 2016, p. 83.

with women who are married. These acts are referred to as Stri Sanggrahana (touching other people's wives).

In the Hindu holy books there are many sloka that regulate adultery / paradara mainly arranged in the books of Manawa Dharmasastra, Sarasamusccaya, Arthasastra, Adi Agama, Kutara Manawa, Manawa Swarga and others. The regulation of adultery seems to vary from book to book. It is not surprising that Hitopesha states "although many scriptures contradict, but it remains in agreement in one respect, that is not to hurt, is the highest religion." A humanistic approach through Hinduism can be an effort to prevent adultery in the community. The religious approach becomes the internalization of the values of goodness in human beings.

The existence of Hindu law itself cannot be applied just like the legal norms that can impose sanctions on offenders. Hindu law must be derivated into customary law. A number of traditional Balinese laws have governed adultery as a violation of adat. Adultery is seen as an act that makes "dirty" nature; therefore, some efforts are needed to purify it again through religious ceremonies.

Research on adultery in the perspective of customary law and local wisdom of the community was written by several researchers. Sri Wahyuni Laia in her research entitled The Role of Nias Customary Law in Resolving Adultery Cases (Study in Hiliorudua Village, Aramo District, South Nias Regency) examines the constraints faced by traditional elders in enforcing customary criminal law specifically relating to adultery in the Village Hiliorodua Aramo District, South Nias Regency.11

Gerry Mario Paulus, Jimmy Pello, Action of Sinura in his research entitled "The Completion Pattern of Adultery Case Based on the Customary Law of Sabunese" found that the point in chapter 284 of the Criminal Code has similarity with the point in customary law of Sabunese, namely adultery is conducted with someone (man or woman) who has been joined in matrimony. It is found that the people of Sabu are prefer to complete the adultery customarily due to some factors, that is: sanction and serious violence, it is normally using the completion in customarily with the people of Sabu, the justice law based on the people of Sabu, the effect of completion and completion pattern. Two patterns of completion which appear in completion of the process of adultery based on the customary law of Sabu is the completion pattern in the kinship way which are preventing and protecting.12

Harisman Kokodi, Sabrina Hidayat, Handrawan had conducted a research entitled "Settlement of Adultery in the Tolaki traditional law system". It is stated in the Criminal Code that adultery can occur if there is intercourse between a man and a woman who both or one of them has been married to another person. According to customary law, in this case Tolaki Customary Law, adultery is not only carried out by married people. Therefore, whether married or unmarried, if intercourse is done outside a legal relationship, it is still considered a prohibited act and also called adultery.13

These studies show the power of customary law in responding to adultery as an act that violates norms in social life. In this study, the author will examine adultery in the perspective

11 Sri Wahyuni Laia, "Peranan Hukum Adat Nias Dalam Menyelesaikan Kasus Perzinahan (Studi di Desa Hiliorudua Kecamatan Aramo Kabupaten Nias Selatan)." Jurnal Education And Development, Vol. 7 Issue 4, 2019, pp. 294-294. 12 Paulus, Gerry Mario, Jimmy Pello, and Aksi Sinurat. "The Completion Pattern of Adultery Case Based on the Customary Law of Sabunese." JILS 4 (2019): 89. 13 Harisman Kokodi, Sabrina Hidayat, and Handrawan Handrawan, "Penyelesaian Delik Perzinahan dalam sistem hukum adat Tolaki." Halu Oleo Legal Research Vol. 1. Issue 1, 2019, pp. 59-75.

of national criminal law and adultery as a crime in Hindu law. This research can contribute in inventorying philosophy in religious law that can be an effort to tackle a crime.

B. Discussion and Analysis

1. Delict of Adultery in the Criminal Code

As it is known that the codification in Indonesia is much influenced by the codification in the Netherlands. In Netherlands, the first codification was found in 1809 called the Het Crimineel wet boek voor het koninlijk Holand. Codification in that year lasted a long time because in 1811 until 1813, the Dutch was occupied by France so that the Penal Code was applied until 1866. Actually, since the first codification for 73 years the Dutch had prepared a draft criminal law regulation which was completed in 1881, and was just legislated on September 1, 1886, and is often called the Netherlands Wet boek van Strafrecht. Then it was adopted in Indonesia and named the Criminal Code in 1946.14

Adultery will be viewed as reprehensible or prohibited in the Indonesian Penal Code if it occurs within the framework of marriage. In criminal law, it is formulated regarding prohibited acts so that the act is declared as a criminal act. In national criminal law, adultery is called a crime. A criminal offense is an act of a person who is threatened with a crime, his actions are against the law, there is a mistake and for the culprit can be held accountable for his actions.15 Ridwan Halim calls the crime as an offense that is an act or action that is prohibited and threatened with punishment by the (criminal) Act.16 To be considered a crime, the act must be formulated in criminal law first.

Deborah L. Rhode, Los Angeles Times, as quoted by Ahmad Sofian states that in 21 states in the United States, adultery as defined in the Black’s Law Dictionary is still categorized as a criminal offense and can be prosecuted if there are complaints from their partners. Although adultery is rarely prosecuted, the threat of punishment for adultery is a maximum fine of 500 US dollars and a maximum confinement of 90 days.17 Adultery itself is a criminal act that is grouped in offense of decency. Adultery is a criminal offense regulated in general criminal law, the provisions of the Criminal Code.

In national law, adultery is regulated in Article 284 of the Criminal Code which states as follows:

(1) By a maximum imprisonment of nine months shall be punished:

l. a. any married man who knowing that Article 27 of the Civil Code is applicable to him, commits adultery;

b. any married woman who commits adultery;

2. a. any man who takes a direct part in the act knowing that the guilty co-parter is married;

14 Teguh Prasetyo, Hukum Pidana (Edisi Revisi), Jakarta: Rajawali Press, 2011, pm.27. 15 Indriyanto Seno Adji, 2002, Korupsi dan Hukum Pidana, Jakarta: Kantor Pengacara dan Konsultan Hukum Prof Oemar Seno Adji dan Rekan, p. 155. 16 Ridwan Halim, Hukum Pidana dalam Tanya Jawab, Bandung: Alumni, 1986. 17 Ahmad Sofian, Delik Zina Dan Hubungan Seksual Sesama Jenis Dalam KUHP, http://business-law.binus.ac.id/2017/01/26/delik-zina-dan-hubungan-seksual-sesama-jenis-dalam-kuhp/

b. any unmarried woman who takes a direct part in the act knowing thatbthe guilty co-partner is married and that Article 27 of the Civil Code is applicable to him.

(2) No prosecution shall be instituted unless by complaint of the insulted spouse, followed, if to the spouse Article 27 of the Civil Code is applicable, within the time of three months by a demand for divorce or severance from board and bed on the ground of the same act.

(3) In respect of this complaint Articles 72, 73 and 75 shall not be applicable.

(4) The complaints may be withdrawn as long as the judicial investigation has not commenced.

(5) If Article 27 of the Civil Code is applicable to the spouse, the complaint shall not be complied with as long as the marriage has not been severed by divorce or the verdict whereby severance from board and bed has been pronounced, has not become final.

The issue of adultery offenses is an actual example of the conflict between the understanding of adultery in Article 284 of the Criminal Code with the interests / social values of the community. The conflicts that often occur in the community, often lead to new crimes such as murder, persecution, or vigilantism. Adultery is seen as an act of sin that can be committed by both man and woman, and is seen as a desecration of the sacred bond of marriage. This is compounded by the weak practice of law enforcement. The enforcement of criminal law in Indonesia is closely related to crime or criminality. In a crime that occurs in general, it always involves two central parties, namely the perpetrators of crime and victims of criminal acts. The perpetrator is usually a stronger party if it is compared to the victim, in terms of physical or other aspects.

Article 284 of the Criminal Code requires overspelling to be declared as adultery. According to Van Dale's Groat Woordenboek Nederlanche Taag, the word overspel means echbreuk, schending ing der huwelijk strouw which more or less means a violation of marital loyalty. Noyon-Langemayer stresses that overspelling can only be done by people who are married. In the decision of Hooge Raad on May 16, 1946, the emphasis was more on overspeling that there was intercourse outside the permission of the husband / wife.18 According to Sahetapy and B. Mardjono Reksodiputro, seeing the provisions of Article 284 in such a way, the overspel that can be subjected to criminal sanctions according to the Criminal Code are:

a. intercourse is done by those who are married only. If the couple is not married both, then their intercourse can not be qualified as overspel, which is different from the notion of adultery which considers intercourse between unmarried couples also included in it.

b. partners who have intercourse, who are not married, are only considered as participant actors (medepleger). This means that if the partner who is screwed is already married, the person concerned is considered not a participant.

18 Hukum Online, Sudah Cukupkah Bukti untuk Delik Aduan Perzinahan?, http://www.hukumonline.com/klinik/detail/cl6787/sudah-cukupkah-bukti-untuk-delik-aduan-perzinahan

c. intercourse is not condoned by the husband or wife concerned. In a contrario it can be said that intercourse is sanctioned by the husband or wife concerned then it is not included overspel 19

In Article 27 of the Civil Code stated "At the same time, a man can only be bound by marriage with one woman only; a woman with only one man. " Regarding Article 284 of the Criminal Code, R. Soesilo in his book Criminal Law (KUHP) As well as Complete Comments by Article, explains that what is meant by adultery is intercourse committed by men or women who have been married to women or a man who is not his wife or husband. In order to enter this article, intercourse must be done in which the two parties like each other, there must be no coercion from one party.20 In the provisions referred to in Article 284 paragraph (1) of the Criminal Code, sexual intercourse is prohibited in adultery committed by a man or woman who is already married by a partner of the opposite sex.

In criminal law, adultery is a complaint offense. According to R. Soesilo, he expresses his opinion about whether or not complaints could be split. Complaints should not be split, meaning that if a man (A) complains that his wife (B) has committed adultery with another man (C), then B (as the person who commits adultery) and C as the person who commits adultery both must be prosecuted . It is impossible for example that A asked that only C be asked, whereas B (because he was still in love) was not prosecuted. This does not reduce that the Prosecutor as a Public Prosecutor based on opportuniteite reasons actually has the power not to prosecute the woman.21 In the Supreme Court Decision No. 52 K / Kr / 1953, March 19, 1955, asserted "Article 284 of the Criminal Code is an" absolute klachtdelict "so that complaints against men who commit adultery are also complaints against adulterous wives, while prosecutors are authorized to take on the principle of opportunity only prosecution of one of them ".

In Indonesian law, adultery is categorized as a crime. This condition is very different from countries that have abolished adultery as a crime in their criminal law on the basis of respect for gender equality. Punishment for the offender is seen as ineffective because the problem of adultery should be solved by the parties in the household. The state does not need to interfere with problems within the domestic sphere of its citizens. Related to the development of criminal law, crime prevention policies should indeed be carried out in preventive policies namely religious and cultural approaches to prevent adultery.

2. Adultery as Crime in Hindu Law a. Terminology of Hindu Law In a theological sense, the term Hindu means anyone who declares himself a Hindu. For this reason, the term is used not only for Hindus because of the birth but also for anyone who converts to Hinduism. The Vedic scriptures are the basis of Hindu law in the sense of Idiil (ideal). Hindu law is a law that is based on religious teachings, then in certain parts some are enacted into laws and some are left as the case with the authority and freedom of judges to interpret them.22 Hindu law means all civil and ancient Hindu law, as real laws and procedures which are written in Smritis and accompanied by explanations and supported by sanctions. Like other ancient

19 Sahetapy dan B. Mardjono Reksodiputro, Paradoks dalam Kriminologi, Jakarta: Rajawali, 1989, p. 60-61. 20 R. Soesilo. 1991. Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal, Bogor: Politeia, p. 209. 21 Ibid.. 22 Pudja, Hukum kewarisan Hindu yang Diresipir Kedalam Hukum Adat di Bali dan Lombok, Cet. I. Jakarta: C.V. Junasco. 1977, p. 7.

laws, Hindu law is mixed with religion. According to Hindu society, the Dharma includes not only what is known as law in the modern understanding of the term, but all the rules, good and bad habits of human actions. As a result, in books or in the literatures, Dharma not only what is called law in the modern understanding, but also relates to other material namely morality and religion. As stated, Hindu law is a complete legal system including all parts of jurisprudence.

Hindu law according to the meaning of the word which is actually intended is the law of "religion". The same notions of law in the Vedas are Rta and Dharma. Both the Rta and Dharma mean law in Hindu Law. Rta is an eternal law of nature, while Dharma is an earthly law, whether applied or not. Other terms about law are Widhi, Dresta, Acara, Agama, Wyawahara, Nitiswara, Rajaniti, Arthasastra, and others. In several passages from the Rigveda, the word Dharma appears for understanding enforcement or support. Really often in Rigveda this word means rules or laws.

Dharma is also relative, because it is always associated with human experience in regulating his behavior to achieve happiness in his life. Therefore, Dharma is the translation of Rta into the rules of human behavior in order to create social order. Whereas Rta is the order of the universe, to which it is subject. The Rta is like: The sun rises in the east and sets in the west. Water flows to a lower place, fire burns, wind blows because those are the law that applies to them. Humans are hungry, thirsty, sleepy at night, aging and eventually die, because those are the way the law applies to them.

Juridically, such a description of the Rta is formulated by Surpha to be a purely transcendental absolute law. Often, the Rta is translated as order or law, but in the sense of an eternal and unchanging law. The holy scripture of the Vedas explains the law governing the relationships between those creatures created by God. The conception of legal terms in social science, develops in the form of two terms: natural and national law. This natural law can be likened to Rta in the sense of law according to Hindu law. The law of the nation or the law of a group of people in the sense of Hindu law is called Dharma which takes different forms according to local conditions. Hindu law as a complete legal system consists of two meanings:

First, the Rta or eternal law which is equated with natural law and in the sense of social science is an idiil (ideal) foundation regarding the form of law that wants to be applied in the regulation of society in this world. Rta is as a power that cannot be seen by humans (transcendent), but can only be felt based on the belief in the existence of absolute truth.

Second, the Dharma is the translation of an ideal in the legal form (Rta) into the rules of human behavior. Its nature is relative, that is to say, the Dharma as a law is not the same in all places, but is always associated with dresta (local customs).

Hindu law can be explained as religious law or Dharma originating from the Rta, the application of which is adapted to the needs, situations and conditions of the supporting community in order to regulate social order. Then certain parts of the Dharma are promulgated into law and some are left as they were originally with the authority and freedom of the judge to interpret them. The Adultery is a crime in Indonesian law as regulated in Article 284 of the Criminal Code. Criminal sanctions for perpetrators only apply if one or both of the perpetrators have been bound in a legal marriage. Several other countries have eliminated the act of adultery as a crime in criminal law. This is based on gender equality and prohibition for the state to interfere too much in the private affairs of its citizens. The problem of adultery is solved by the parties who are bound in marriage. In modern criminal law, a preventive

approach is needed in overcoming crime. Hinduism itself, prohibits adultery as regulated in the holy scripture. Hindu law is a moral requirement for Hindus. Sanctions stipulated in Hindu law cannot be applied directly to the community, but they can be imposed on the perpetrators through customary lawjudge to interpret them. All Vedas are the main sources of law, then Smrti and the behavior of good people, habits and behavior atmanastusti (self-satisfaction).

Adultery in the Hindu Religious Scriptures

Marriage is an inner and outer sacred bond which is not only related to legal engagement, but as a sacred covenant with God. In Article 1 of Law Number 1 of 1974 concerning Marriage it says "Marriage is an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and everlasting family (household) based on a Godhead." Furthermore, in Article 2 paragraph (1) it is stated "Marriage is legal, if it is done according to the law of each religion and that belief." Marriage is a faithful promise of husband and wife before God; therefore, adultery will tarnish the sacred promise of marriage.

The definition of adultery in the legal perspective is different from the definition of adultery in the study of religious and cultural societies. Hindu society places the position of women as highly respected, and this is already contained in the Vedic scriptures. In Atharva Veda it is said that the virtues of women have an innovative, brilliant, steady nature, providing prosperity, are expected to be intelligent to be scholars, brave and able to lead the battle army and always be confident. Likewise in Manawadharmasastra. III.58 stated: where women are respected, there the Gods are pleased and bestow their gift. Where women are not respected, there is no sacred ceremony whatsoever that gives a noble reward. So it is very clear that the position of women in Hinduism is highly respected.

In addition to Manawadharmasastra, there are still many other sources of Hindu law in a separate literature whose position is equivalent to Manawadharmasastra, such as Sulwasutra, Jyotisastra, Purana and others. Adultery slokas In this paper are some adultery verses quoted from the Manawa Dharmasastra and Arthasastra books. Kautilya Arthasastra, IV.3.59.21 classifies adultery as follows :

If a wife goes to a secret place in the middle of her journey or if she accompanies, with the intention of sex, a man who will be suspected or prohibited, it is known as adultery. While Manawa Dharmasastra states that "Giving a gift to a woman, joking with her, holding her clothes and jewelry, sitting in bed with her, all these deeds are considered adultery" (Manawa Dharmasastra VIII. 357). Next Arthasastra states: If man and woman, who are forbidden, give gifts to each other in the form of small items, the penalty is twelve pana (to be worn), if the item is large, (the fine) is twenty-four pana, if it is gold or money, the penalty is thirty-four pana for woman, double that for men ". (Kautilya Arthasastra, III.3.59.30). "He who talks to another person's wife in a petirtaan (related to water) place outside the village, in the forest or in the place where the flow of two rivers meet is threatened with the threat of punishment for adultery" (Manawa Dharmasastra VIII.356). "If someone touches a woman in a part that does not have to be touched or let someone touch that part, all those actions are carried out with mutual agreement, declared as adultery" (Manawa Dharmasastra VIII.358).

"If men and women, in the hope of having sex, use foot movement or secretly hold disrespectful conversations (pornographic conversations), the fine for women is twenty-four pana, double that for men (48 pana)" (Kautilya Arthasastra, III.3.59.25). "For those who touch hair, underclothes, teeth, nails. The lowest penalty is for violence (to be charged), double for men. And in the case of suspicious conversations, caning can be replaced with a fine in the pana. (Kautilya Arthasastra, III.3.59. 26-27) From the description above, basically there is no contradiction, only Arthasastra clarifies

sanctions with fines and also clarifies the forms of acts that are categorized as adultery. In these two scriptures, the slokas contained complete each other.

"If (the wife) leaves the husband's house, goes to another village, the fine is twelve pana or the loss of gifts and jewelry" (Kautilya Arthasastra, IV.3.59.16). "Or if she goes accompanied by a man with whom sexual intercourse is possible, the fine will be twenty-four pana and lose all rights, except the provision of income and approaches during that time" (Kautilya Arthasastra, IV.3.59. 17).

"Furthermore, regarding adultery with woman: man who commits adultery with other person's wife, the king punishes him with frightening punishment and then discards him" (Manawa Dharmasastra VIII.352).

"A person like that was once guilty of making a mistake talking to someone's wife secretly, threatened with the lowest penalty. (Manawa Dharmasastra VIII.354)

"A non-Brahmin is threatened with the death penalty for committing adultery, because the wives of the four colors must be protected" (Manawa Dharmasastra VIII.359).

From the slokas above, it appears to be a contradiction between the Manawa Dharmasastra and Arthasastra scriptures. The contradiction is mainly in imposing sanctions for adulterers. Furthermore, in the following slokas about the exclusion of acts which at first were considered as adultery, but for certain people, they are not considered as adultery. "In the case of blood ties, it will not be punished" (Kautilya Arthasastra, IV.3.59.19). "If there is a prohibition, half the fine (above) will be imposed on men" (Kautilya Arthasastra, IV.3.59.20). "But people who talk to women as above are reasonable, not guilty, because there is no violation for them" (Manawa Dharmasastra VIII.355).

A bhiksuka, a singer, a priest and an artist are not prohibited from conversing with other people's wives. (Manawa Dharmasastra VIII.360). No one talks with other people's wives after he is prohibited from doing so, but if he converses with them while he is prohibited from doing so, he is fined as much as a suwarna (Manawa Dharmasastra VIII.361)

This regulation does not apply to the wives of an actor or singer nor does a wife who has a secret relationship because such men send their wives to others, hide them, allow them to have secret intercourse. (Manawa Dharmasastra VIII.362).

When compared between the writing of Hindu law scholars in India with what is found as a source of law according to Manawadharmasastra II. 12, it can be concluded that the law scholars accept the four sources of law unanimously while nibanda as a new group is introduced. Although Sila is essentially no longer mentioned as a source of law, in practice, the precepts still affect the contents of Hindu laws both written and unwritten. So the Hindu law in this concept is the law that governs life and applies to Hindu society, one of which is the view of Hindu law and the imposition of sanctions against the paradara case.

Manawa Dharmasastra's sloka states that a brahmin, an educated person and a respected person in the community, even more in mastering religion, is prohibited from adultery. If they are caught, they will violate the norms of decency and will be subject to sanctions by the king, in the current context sanctions will be imposed by law enforcement.

Sarasamuccaya Sloka 153 states:

Ikang kaparadaran, sarwadyani tan ulahakena ika

Hawya angulahaken asing amuhara alpayus

Translation:

Regarding teasing / raping women,

don't make all these efforts.

Also do not do things that shorten life.

Balinese customary law comes from Hindu law. Adultery in Balinese customary law is qualified into customary criminal acts about decency such as:

1. Drati Krama, (i.e. customary offense which is a sexual relationship between a man and woman while they are still in a marriage relationship with another person; in short drati karma is "adultery with another person's wife / husband").

2. Gamia Gemana (is a sexual relationship between people who still have close family relations both in a straight line and to the side).

3. Nenitra Ngalang (is a married man who has a relationship with another woman in which she get support spiritually and physically like a legal spouse, but this woman has not been legally married. Their relationship continues and usually the woman is placed in separate house.23

The application of customary law sanctions for adulterers is already contained in Awig-

awig. Awig-awig itself contains all the rules about most of the rules of social life. In awig-awig itself, it can be seen local wisdom from the community, one of which is awig-awig in Tenganan Pegeringsingan village that regulates the Crimes of Paradara. This awig-awig consists of 61 articles, some of them regarding the rules of crime / criminal offenses in the village of Tenganan Pegeringsingan related to Paradara which are described in several articles as follows:

Article 15 Awig-awig concerning Adultery

And if there is any woman who does not have a husband and it is known by the villagers, they should check the reality, if she confesses someone who made her pregnant and he also confesses it, so they must be married by the village and they have to be fined by the village of 25.000 each; 5.000 of the fine must be paid immediately, if it is not paid, the village must confiscate it according to the amount of the fine; the fine of 20.000 must be paid in installments with 80 coins (all with Chinese-made perforated money) can be received by the village for a life of people who are fined. And if the deciding person refuses it (does not confess), then it is a must for the village to prepare to make the persumpahan (oath) ritual within one month, with one witness; if they do not want to take an oath (traditionally take an oath) or lack witnesses, the village must bring them together and marry them both in the front. If she wants to take an oath plus a witness, who accuses her

23 I Made Widnyana, Hukum Pidana Adat dalam Pembaharuan Hukum Pidana,. Jakarta: PT. Fikahati Aneska, 2013, 26.

must be outcast by the village, he is not given the right to live in the village as it is already applied.

The issue of adat sanctions and their application is not a new matter. Customary sanctions in terminology in Bali are called Pamindanda. The forms of pamindanda varied from the lightest to the heaviest. In principle, pamindanda as a legal action is not intended to retaliate for acts of violators of the law, but rather it is intended as a means to restore a harmonious atmosphere in people's life, both in real and unreal life. Traditional villages in Bali that do not specifically regulate sanctions for adultery, usually still impose sanctions on actors who hold positions in the village concerned, for example revocation of titles as traditional leaders and religious leaders in villages based on the decisions in village meetings.

Sanctions are still something that must accompany the law when the law does not want to be obeyed by its citizens. Sanctions are imposed on community members if they are deemed to have acted in violation of the applicable legal rules. The application of a customary sanction is carried out by a customary person who has been appointed as a Kerta Desa or village peace judge. He must follow the procedures for applying the mechanism of sanctioning to the perpetrator based on existing provisions, which have been made together in a village regulation. However, in applying customary sanctions, there is also a great deal of reality in the people's obedience to the norms that have been made together in a village regulation that is difficult to be obeyed. The fact that the norms are not obeyed leads to the imposition of severe customary sanction, kasepekang or temporary discontinuation as a villager.

Considering customary sanctions are generally terminated through Paruman (village meetings) or through customary leader policies that have been recognized for their abilities, credibility, and support by the community. Customary sanctions imposed on certain krama desa (villager) are generally supported by all krama desa.

C. Conclussion Adultery is a crime in Indonesian law as regulated in Article 284 of the Criminal Code. Criminal sanctions for perpetrators only apply if one or both of the perpetrators have been bound in a legal marriage. Several other countries have eliminated the act of adultery as a crime in criminal law. This is based on gender equality and prohibition for the state to interfere too much in the private affairs of its citizens. The problem of adultery is solved by the parties who are bound in marriage. In modern criminal law, a preventive approach is needed in overcoming crime. Hinduism itself, prohibits adultery as regulated in the holy script. Hindu law is a moral requirement for Hindus. Sanctions stipulated in Hindu law cannot be applied directly to the community. However, they can be imposed on the perpetrators through customary law. References Books Adami Chazawi, Tindak Pidana Mengenai Kesopanan, Jakarta: Raja Grafindo Persada, 2005.

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Hukum Online, Sudah Cukupkah Bukti untuk Delik Aduan Perzinahan?, http://www.hukumonline.com/klinik/detail/cl6787/sudah-cukupkah-bukti-untuk-delik-aduan-perzinahan.

Jonathan Turley, Adultery, in many states, is still a crime, http://usatoday30.usatoday.com/news/opinion/forum/2010-04-26-column26_ST_N.htm

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Legal documents

Kitab Undang-undang Hukum Pidana (Criminal Code of The Republic of Indonesia).

Undang-undang Nomor 1 Tahun 1974 tentang Pekawinan (Law Number 1 of 1974 concerning Marriage).