ID 
R. Soesilo explains that zina (adultery) is defined as sexual intercourse carried out by either a man or a woman who is married to a spouse of the opposite sex, but engages in intercourse with someone who is not their spouse. For an act to be considered zina under this provision, it must be conducted with mutual consent, without coercion from either party.
The definition of marriage in Indonesian Marriage Law, as outlined in Article 1 of Law No. 1 of 1974 on Marriage, states: “Marriage is a physical and spiritual bond between a man and a woman as husband and wife with the aim of forming a family (household) that is happy and everlasting, based on the belief in the One and Only God.”
Adultery is also categorized as a criminal offense under criminal law and is classified as a “delik aduan” (complaint-based offense).
The term delik aduan (complaint-based offense) comes from the word klacht or complaint, meaning that a criminal offense can only be prosecuted after a report is made with a request for legal action against a specific individual or individuals. Delik aduan is divided into two types:
Absolute Complaint-based Offense (absolute klacht delict)
According to Tresna, an absolute complaint-based offense is any crime that can only be prosecuted by a public prosecutor after a complaint is received from the person entitled to lodge it.
Pompe defines an absolute complaint-based offense as a crime that, in principle, requires a complaint as a condition (voorwaarde van vervolgbaarheid) for the offender to be prosecuted.
Crimes classified as absolute complaint-based offenses include:
- Defamation (Articles 310 to 319 of the Indonesian Penal Code), except for defamation committed against a government official while performing official duties. In such cases, the defamer may be prosecuted without waiting for a complaint from the offended official.
- Immoral acts (Articles 284, 287, 293, and 332 of the Indonesian Penal Code).
- Breaching confidentiality (Article 322 of the Indonesian Penal Code).
Relative Complaint-based Offense (relatieve klacht delict)
A relative complaint-based offense is a crime that, while not generally considered a complaint-based offense, requires a complaint in certain situations.
According to Pompe, a relative complaint-based offense is one where a complaint serves as a condition (voorwaarde van vervolgbaarheid) for prosecution, and such a complaint is required when there is a special relationship between the offender and the victim.
It can be understood that absolute complaint-based offenses, such as adultery, are used as a basis in adultery cases.
In criminal law, the punishment for someone committing adultery is a prison sentence of up to 9 months. The concept of adultery in Indonesian positive law does not consider all sexual relations outside of marriage as acts of adultery.
In the formulation of Article 284, adultery remains a complaint-based offense, but the distinction from the Indonesian Penal Code is that the complaint can be filed by the spouse, the spouse’s counterpart, or a third party who is affected. The inclusion of third parties is problematic because there is no clear definition of who qualifies as “an affected third party,” making it uncertain and lacking legal certainty. Anyone who feels wronged by an act of sexual intercourse outside of a marriage can file a complaint under the suspicion of adultery.
Article 284 Paragraph (1) of the Indonesian Penal Code reads:
“Whoever, being a married man, commits adultery while knowing that his companion is married, or a woman who is married commits adultery; or a man who takes part in such an act, while knowing that his companion is married; or a woman who is not married takes part in such an act, while knowing that her companion is married—shall be punished by imprisonment for a maximum of nine months.”
In the newly passed Draft Criminal Code (RKUHP), adultery is included in Article 417, which states:
“(1) Anyone who commits sexual intercourse with a person who is not their spouse shall be punished for adultery with imprisonment for up to 1 (one) year or a fine in the highest category II. (2) The criminal offense as referred to in paragraph (1) cannot be prosecuted except upon a complaint by the husband, wife, parent, or child. (3) The provisions in Articles 25, 26, and 30 do not apply to complaints as referred to in paragraph (2). (4) The complaint can be withdrawn as long as the trial has not started in the court.”
The meaning of adultery in the context and values of Indonesian society (not just in big cities) is as follows:
It is a form of disrespect for the institution of marriage. It is formulated as a complaint-based offense and complaints are limited to those who are most directly impacted. It is not linked to divorce as formulated in the Penal Code.
