Every society develops customs under natural conditions. The characteristics and patterns of customary law have experienced a long process of development in terms of their historical dynamics. The dynamics of society and culture in Indonesia have a historical link.
According to customary law in Bali, marriage is a social, cultural, religious, magical, and also legal act. Marriage has a legal impact, affecting the rights and obligations of each party. Marriage not only has an impact on obligations and rights, but it also has an administrative impact, giving authority to the state to enter one’s personal arena or territory. The law determines the legitimacy and status of each party, including legal relations with third parties, such as the in-laws. Rules for the husband and wife relationship are part of the legal aspect of marriage. The context of the relationship must be clear, approved, and witnessed in relation to its validity (Wirata 2018, pp. 151–52
). In this context, it is mentioned as a social act because it is a social product, and also a cultural product that binds all elements of the social life. It is associated with religious and magical aspects, because marriage involves ancestral spirits and religion. Marriage includes religious rituals, both during the wedding procession and in the household. There are several stages in Balinese history that have governed marriage matters. Even under Dutch rule, Balinese marriage was subject to regulation.
It is surprising to learn that when Bali was under Dutch colonial rule, people regarded Balinese culture and religion as needing protection. Hinduism was the coherent force that shaped the developed traditions. There seemed to be a concern from the Dutch authorities about Balinese culture if outside forces influenced it. It was suspected that Balinese culture would decay because to the spread of Zending; the Dutch considered it to be unique, and believed they should save it from various outside influences, known as the Baliseering policy. With this policy, the Dutch government could guarantee how threats to Balinese culture could be controlled, not only regarding external cultural influences, but because of the influence of religions other than Hinduism in Bali.
However, not all ethnicities (7 ethnic groups, i.e., Java, Madurese, Timorese, Ambonese, Buginese, Sasaknese, and Sumbawanese) and religions are in the same position in relation to how the legal aspects apply in society, such as in relation to issues of religious law, marriage law, etc. In Islam, for example, these social aspects do not face legal obstacles, because we know that most of the Indonesian population adheres to Islam. Thus, the population of major religious adherents came from Islam (520.224), Catholicism (64.454), Protestant Christianity (31.397), and Hinduism (3247.283). These religious traditions seems to be developing in modern Balinese life, to this day (See also: Howe 2004
Historical records show that the religious tradition in Indonesia has roots in the structure of Indonesian society and culture, which is traced from ancient life, through classical history, to modern times. The collapse of the Hindu kingdom (c.1500) characterizes this period, followed by Islam’s arrival (1500), and European influence (1596), especially in relation to the influence of Christianity (c. 1800 onwards) (Hisyam 2021, p. 199
). Other religions, such as Hinduism, for example, have played an important role, especially in relation to the dynamics of classical Indonesian history, long before its entry into modern history. When Indonesia was under the traditional rule of Majapahit, Hinduism played a significant role (1293–1400). Other countries, such as Malaysia, Thailand, and the Philippines, recognized Hinduism. Helen Creese mentions this in her work entitled, Perempuan dalam Dunia Kakawin: Perkawinan dan Seksualitas di Istana Indic Jawa dan Bali (Women of the Kekawin World: Marriage and Sexuality in the Indic Courts of Java and Bali
), based on enactment of the Majapahit Law, which was based on Hinduism, called Kitab Kutaramanawa Dharmasastra
). The Majapahit kingdom was followed by a Dutch colonial period of over 350 years (1596 to 1945), when Dutch colonial rule influenced law, founding modern Indonesian law. Dutch law has been in modern Indonesia since Indonesian independence was achieved on 17 August 1945, until the present day. Non-Hindu religious influences seems to be more dominant in modern Indonesian law (See Reslawati 2017, pp. 184–85
Thus, in the next episode of Indonesian history, the majority of citizens are Muslims, and the interests of the ummah are prominent. This could be seen when Indonesia declared its independence. Indonesia has various religious communities. Article 29 of the Indonesian Constitution states that every citizen has the freedom to practice their respective religion and belief. However, there are imbalances in implementing the rights possessed by every citizen. Legal issues relating to marriage, including divorce and inheritance, are a problem. Therefore, this article proposes that the nation-state needs to secure religious rights and equal status to Indonesian people—especially those belonging to the non-Muslim Hindu adherents—for achieving fairness in human dignity. There are several problems related to this area, as the Marriage Law of Islam does not align with the beliefs of the Hindu community. The discussion of this aspect is very significant in relation to the application of the law as guaranteed by the ideological basis of the Unitary State of the Republic of Indonesia (NKRI). This applies the state ideology based on Pancasila. The word Pancasila comprises the word panca, meaning five, and sila, meaning foundation or basic principles. The ideology of Pancasila became significant as the state ideology after Indonesian independence was achieved on 17 August 1945. The ideology of Pancasila is the basic ideology, comprising five significant aspects—first: belief in God, second: humanity, third: Indonesian integration, fourth: democracy, and fifth: social justice. These five aspects of the Pancasila play a significant role in building the nation-state in modern Indonesia.
4. The Human Dignity in Bali at the Time of Independence
I have explained that Muslim community groups play an intense role in Indonesian culture, as the majority group when Indonesia became independent. In fact, when they became independent in the Indonesian constitutional structure, community groups already had the power to regulate the lives of their people. In Islamic religious courts, for example, there are two major organizations, Muhammadiyah and Nahdlatul Ulama. The Muhammadiyah group considers its group a purification group, while the Nahdlatul Ulama group considers itself to be tolerant of local traditions and customs.
The total number of Balinese people who were Hindu (1950s) was around 2.5 million, representing 500.000 heads of families (Kaler 1983, pp. 4
). Balinese had a different culture, different from the majority of the Indonesian population, who are Muslims, especially concerning rituals or religious ceremonies regarding the marriage system. There are certain flexibilities based on their adat (local customary laws and Hindu religion). According to the Manawa Dharma Castra
Idhanim dharma pramananyaha
Wedo kiklo dharmamulam
Smrticile ca tadwidam
The whole scriptures (Vedic Cruti) are the first source of the law,
then of it the smrti and the praise worthy behaviour (Cila) as well as
the customs (events) that fullfill the desires of
the highest conscience (atmanastusti).
This means that we can do more to improve our understanding of certain concepts regarding the principal foundation, form, and characteristics of Hindu institutions, amongst other religious institutions, such as Majelis Ulama Indonesia
(MUI), and Dewan Gereja Indonesia
. The MUI organized any religious issues related to the Muslims, and the DGI related to the adherents who are Christians. They still have their function related to the religious activities of both Muslim and Christian adherents. Through these efforts, other institutions would recognize the Hindu existence through administrative notes or Catatan Sipil
. The central government could consider Balinese as cultuurvolks
. In addition, it is important to note that the Balinese have to maintain their rights regarding the concept of swadharma bernegara
(it is compulsory to dedicate the self to the state); this concept is relates to the marriage act or Undang-Undang Perkawinan
(Kaler 1983, p. 3
In Bali, there are several known levels of society, called soroh. Conditions or prohibitions of marriage which include endogamy (marriage in one’s own environment) or exogamy (marriage with other citizens), does not appear to exist. Here, marriage in a citizenry environment, for example, both participants being from the Pasek group or both being Kemenuh, or between citizens of different groups, is not prohibited.
In Bali, the community is more pleased with marriages that occur endogamously (in the same vein). However, this is not in relation to family ties, provided that they are not too close. Marriage in Bali has two categories:
Gamia or discordant. This marriage is not prohibited. However, if this marriage occurs in a way that is unkind (amanasi awaknia priawak), especially if it is difficult to prevent, a congratulation ceremony for the spouse (dibayuh) compliments it before the ratification ceremony.
Agamia marriage occurs when a man marries a woman who is a grandmother or bihi-level cousin, once or twice removed (grandmother/aunt dimisan or dimindon). Then, there is the notion that family ties closer than that are not considered gamia anymore. In relation to a man, there is a higher gradation (uncle with niece dimisan or dimindon), considered an ideal marriage, known as Prtabu Ngemban putra, and is common in Bali.
Gamia Gamana marriage is that between people who have familial bonds closer than those mentioned above, both from the female or pre-religious side and from the male or purusa side. Such marriages are prohibited, and the Balinese traditional community tries to prevent them from happening. This concept is “amanasi rat”, according to the elderly. It was frowned up upon in the Hindu kingdom in the past, when the person concerned was subject to punishment or “kelebok ring segara”. This happens to people with family ties at the biological level, friends “in ia or dinyama”, step-ties, and adoptive ties. This includes cementa relationships (because of marriage) (son-in-law with in-laws, for example). Regarding brothers-in-law, there are differences between one region and another. In Karangasem, East Bali, for example, a man is prohibited from marrying his sister-in-law (his brother’s widow). However, in other areas, this is what they encourage (Kaler 1983, p. 10
Balinese people, who are predominantly Hindu, seem to have unique experiences compared to other communities, even though all Indonesians have entered the period of independence. Among Hindus in Bali, there is still fragmentation, with followers of the Shiva Buddhist-Hindu, religion, Buddhist religion, Tirtha religion, or Shiva-Hindu religion, etc. Five years after independence, on 31 December 1950, I Gusti Ananda Kusuma founded an organization known as the Hindu Religious Council (Ardhana et al. 2019, p. 29
). A year later, in 1952, a Hindu Religious Institution (PAHB) deepened the knowledge of Hindu philosophy related to implementing Hindu religious rituals.
5. Hindu Law and Human Dignity: Negotiation and Practices
When Indonesia became an independent nation on 17 August 1945, Indonesians practiced human dignity. Indonesia mandated this in the articles of the Constitution of the Unitary State of the Republic of Indonesia. The Indonesian people, free from Dutch colonialism, opened up new opportunities as an independent nation. This stems, of course, from the desire of the Masjumi Party to establish an Islamic state. However, the 1945 Constitution could guarantee the existence not only of Muslim groups, but could embrace the interests of all people with religious beliefs outside of Islam.
This marked a new era in improving the bureaucratic structure of government in Indonesia. For this reason, Indonesia formed various agencies to facilitate the interests of the state and religious community groups for all the Indonesian people in modern Indonesian. This includes the Office of the Ministry of Religion of the Republic of Indonesia in Jakarta. Events overwhelmed the agency in the form of various problems that have arisen in Jakarta as the new capital city of the Republic of Indonesia. Social and political capital from the Muslim community provided an opportunity for Islamic religious courts before other religious groups. Meanwhile, in 1951, in Singaraja Bali, a government structure for religious matters, was formed at the Nusa Tenggara Provincial Office or the Provincial Religious Affairs Office (KUAP). The focus of the KUAP was religious efforts, religious information, and religious education.
When the Ministry of Religion was established, it was to be controlled by Muslim groups. It struggled to accept new religions, other than Islam, in 1952. There was indeed an assumption that Balinese people who embraced Hinduism did not embrace religion, but were believers (Ardhana et al. 2019, p. 33
). Therefore, several important requirements existed. Hindus had official adherents, possessed a holy book, had a prophet, gained international recognition, and the adherents were not limited to only one ethnic group, such as the Balinese ethnic group. With the demands put forward by Muslim and Christian groups, Hindus met some of the demanded requirements in Indonesia. The Indonesian state recognized the Hindu religion in1959. This means that the acknowledgement of Hinduism came over 10 years after Indonesian independence, which was achieved on 17 August 1945.
However, this provincial office of religious affairs only dealt with adherents of the Islamic faith in matters relating to pilgrimage, marriage, divorce, and reconciliation. The Balinese community, which is Hindu, had no place at the provincial level regarding religious affairs. This seems quite ironic, especially in relation to human dignity. Dignity was for all religious adherents in Indonesia. Therefore, the Bali government Council submitted a proposal to the Provisional People’s Representative Council. Its purpose was to establish a Regional Autonomous Religion Office of Bali, with a letter dated 14 November 1952, number 14/4/115. The primary aim was to fight for Hinduism within the Provincial Office of Religious Affairs. This effort lasted from 1952 to 1954, but was unsuccessful. Because of the non-acceptance of Hinduism in the office of the religious affairs, in 1954, the regional government of Bali created a regulation for the autonomous religion of Bali. After its establishment, it was proposed to the Ministry of Religion of the Republic of Indonesia in Jakarta. Jakarta rejected it.
The situation was unstable. The aggravation among Hindu intellectuals involved the ambiguous recognition of Hinduism in Bali. Bali’s government did not recognize the national office of regional religious affairs in Bali. Any officials who adhered to Hinduism were not allowed to conduct activities in the regional office of religious affairs in Bali, so the regulation of regional religious affairs was not effective. For example, the summons for Muslims regarding pilgrimage (Haji) and talak were ineffectively dealt with (Ardhana et al. 2019, p. 33
). The ideals proposed to reduce the struggle of the Hindus only succeeded in 1958. Balinese Hinduism became part of the Ministry of Religion of the Republic of Indonesia. Hindus in Bali received attention and received the same administrative services as other religions in Indonesia. The Republic of Indonesia recognized Balinese Hinduism in 1958. With this recognition, the Ministry of Religion of the republic of Indonesia established the Hindu Section Bureau in 1958. This meant giving status to the Bali Hindu Bureau in the Ministry of Religion of the Republic of Indonesia. This was strengthened by issuing MPRS Decree No. 27 in Session IV, and in 1986, it was upgraded to a Directorate (Gosa 1986, p. 21
; Ardhana et al. 2019, pp. 15, 38
However, there are internal and external obstacles, especially in relation to establishing a Hindu religious court, which does not yet exist in Indonesia. External barriers include political and juridical barriers. Political obstacles, for example, relate to the problem that there is no political will to establish a Hindu religious court. The number of Hindus in the DPR is not sufficient. Legal politics in Indonesia does not support a Hindu religious court in Indonesia. Regarding judicial obstacles, especially in relation to the space required for Hindu religious courts, the topic is less clear. This is because of the Special Judicial Law, especially article 18, the Law on Advocates, article 2 paragraph (1) and its explanation, and the Law on Religious Courts Article 1 point 1. Other internal obstacles include the lack of understanding of Hindus regarding the competence of Hindu religious courts, as well as Hindus who do not support Hindu religious courts (Gelgel et al. 2015, p. 260
In addition, this applies to the idea of Moksartham Jagadhita ya ca iti dharma, or dharma philosophy, the highest value of truth in Hindu law. It is important to note that, according to historical records, Hindus in Indonesia once had a Hindu religious court. This was from the time of the Hindu kingdom, through the era of the Dutch East Indies and the era of independence, up to the issuing of Law Number 1/drt/1951. According to the Perda Bali, on 12 July 1951, due to Number 11/DPRD, marriage between men of lower ranks and women of higher ranks was abolished, which is known as the criminal Asu Pundung and Alangkahi Karang Hulu. In some places in Bali, weddings such as these are arranged with an “amati wangi” ceremony first, before the wedding ceremony itself, to provide peace of mind.
In Bali, kaingin
, the right to marry, cannot be prohibited by the rights that parents have regarding their children, known as “warang rights
”. If there is a violation of these rights related to the prosecution, melegandang, mrekeneng
, and mrekunung
is a punishable criminal act. Marrying someone who is already married is not encouraged. However, it is not forbidden for a man who is still married to remarry. Polygamy prohibition does not exist, and there is no limit to the number of wives that a man can marry (Kaler 1983, pp. 10–11
). The judicial foundation is that there is room for Hindu religious courts. It is stipulated in article 1 paragraph (3) of the 1945 NRI Constitution, which states that Indonesia is a country of law; article 2 paragraph (1) of Law No. 1 of 1974, concerning marriage; and article 2 of Law No. 48 of 2009, concerning judicial power. These articles are national, applying to every citizen. Thus, this reduces pre-existing customary or local regulations and upholds religion. In the past, it was possible to have marriages that comprised a social contract. In such cases, people were married only by a Civil Registry deed. However, with this law, religious provisions have a reasonable place. This is under the presumption that marriage is valid if carried out according to the laws of the relevant religions and beliefs. The definition of law in the sacred book of Vedic Hinduism is rta
, for example, is more accurately defined as sacred rules. In the Manawa Dharmasastra
, the word dharma is used to mean the law that governs human life towards goodness. Dharma is the elaborator. Dharma is the elaboration of rta
into regulations that apply to human behaviour. This is to create order and justice in society, besides human dignity (human dignity based on Hindu religious tradition). Besides this, Gelgel et al.
(2015, p. 27
) notes that rta
are macro conceptions of Hindu law. Both regulate human interaction in order to align people’s lives with the natural environment for the creation of a peaceful, safe, just, and prosperous life. This applies to the concept of the dharma philosophy of truth and supreme value in Hindu law. It is important to note that according to historical records, Hindus in Indonesia have had Hindu religious courts from the time of the Hindu kingdom, through the era of the Dutch East Indies and the era of independence, up to issuing Law Number 1/drt/1951. The juridical basis is that there is room for a Hindu religious court, as regulated in article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia, which states that Indonesia is a state of law; article 2 paragraph (1) of Law no. 1 of 1974, concerning marriage; and article 2 of Law no. 48 of 2009, concerning the power of the judiciary.
Besides philosophical, historical and juridical foundations, a Hindu religious court in Indonesia also has a sociological basis. There are still family law problems and violations of the order of religious life for Hindus that are not accommodated in the general court. What religious and traditional leaders in Bali want is very clearly encompassed by the Great Pesamuham Parisada Hindu Dharma Indonesia, dated 2 March 1990, number 01/KJep./II/PAPHDI/1990, and the results of the Great Order of the Main Assembly of Pakraman Village, number 050/Kep/Psm-1/MDP Bali/III/2006, 3 March 2006 (See Gelgel et al. 2015, pp. 259–60
Therefore, politically, Hindus must continue to face struggles in establishing a Hindu religious court. At least, it could represent the Hindu Law in the national law of the modern Indonesian state. One such struggle takes the form of conducting a formal legal inventory and obtaining materials related to law enforcement in Indonesia. In addition, it is necessary to review laws that do not support Hindu law and to compile Hindu law as a source of material for Hindu religious courts. The role of the Balinese people is important, because these individuals possess courage and can build themselves (Gde Aryantha Soethama 2004, p. 174
). Thus, clearly, increasing public awareness of Hindus is necessary to raise perceptions of Hindu law and Hindu religious courts in Indonesia. The Parisada Hindu Dharma Indonesia is recognized by the Republic or only at the Bali regional level, namely increasing the devotion and role of Hindus in society, the nation, and the state (See: Articles of Association of Parisada Hindu Dharma Indonesia 2021
: on duties and functions, Article 11 c).