THE COMPARISON STUDY ABOUT ADULTERY CONCEPT

ACCORDING TO PENAL CODE (KUHP) AND ISLAMIC CRIMINAL LAW

By
Hendra Surya*
Rusjdi Ali Muhammad**
Mohd. Din***

ABSTRACT

Legal sanctions against adultery in the penal code (KUHP) are still a debate
among the law-experts as well as among the people themselves. It is not even
uncommon unrest and vigilantism against the adultery offender, as has happened in
Sukorejo, Kendal, Central Java, that was the clash between the mass of FPI who
want to stop the perpetrators of immorality (adultery) and the thugs in the
localization. In addition, every year there are 2,6 million abortions in Indonesia or
every hour there are 300 women abort. From the amount 700.000 of them have done
by teenagers or women under 20 years, who abort because of unwanted pregnancy
or unwanted relationship. This happens due to indecision chapter 284 of Penal Code
(KUHP) in regulating adultery problems that do not correspond to the values in
society. Islamic criminal law provisions explicitly state that any person who commits
sexual intercourse outside of lawful marriage is adultery, as well as the spirit of the
law transformation regarding adultery that are formulated in new draft laws of
KUHP still does not accommodate the values in society. The main issue of this study
is : first, how does the concept of adultery in Penal Code (KUHP) with Islamic
criminal law?. Second, how does the concept of adultery regulation ideally in
National Criminal Code (KUHP) in the future?
The study aims to know the concept of adultery according to National Penal
Code and Islamic criminal law, as well as to discover and develop the ideal concept
of adultery regulation in National Penal Code at the future.
The method used in this study is a normative law research method, which is
historical and comparative method. Secondary data sources such as primary law
materials, secondary law materials and tertiary law materials (supporting). Data
obtained from both primary law materials, secondary, tertiary, as well as
information from the experts. Hence, the data was analyzed with qualitative content
analysis approach.
The results of the study showed that: first, The concept of criminal adultery
according to the Criminal Code, namely the concept of prevention in the downstream
or after the occurrence of adultery, in the sense that adultery is not categorized as a
criminal offense, if the offender does not has a valid marriage and can be prosecuted
if there is a complaint from the husband or wife who felt aggrieved, while abortion

*
Postgraduate Student of Syiah Kuala Law School
**
The Head Of Supervision Commission
***
The Member of Commission

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resulting from unlawful sexual intercourse (adultery) is categorized as a crime even
though there are no complaints, while of concept Islamic criminal laws disallow
every act to approach of adultery. Second. The ideal concept of adultery regulation
in upcoming KUHP is the arrangement offence of adultery should be viewed from
religious viewpoint and the values that grow in Indonesian societies. Thus the
complaint criminal offense of adultery in the National Criminal Code could be used
as a regular offense. Besides, the next arrangement of adultery in Criminal Code
(KUHP) needs to adopt the criminal provisions of adultery that arranged in Islamic
law and reserved for Muslims only, whereas for non-Muslim who commit adultery
can be adjusted to the penal provisions of Islam. In the sense that for non-Muslim
adulterer who married should be confined lifetime maximum confinement, and for
unmarried adulterer may be liable to imprison for a maximum of thirty-five years.
Furthermore, the authentication process can also adopt the Islamic law system in the
case of admission and four qualified male witnesses according to Islamic law.

Key Word : Adultery, KUHP and Islamic Criminal Law

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