What are the laws and regulations if a husband beats his wife due to self-defense in which the husband is first provoked by his emotions and is kicked by his wife until he falls down?
Daftar Isi
INTISARI JAWABAN
Basically, the act of a husband hitting or beating his wife can be punished based on the provisions of Law 23/2004. However, in our opinion, according to the chronology you have described, the actions of both husband and wife violate the provisions of the Law on Elimination of Domestic Violence or Law 23/2004. Therefore, whether the husband will be subject to criminal sanction by the judge for the violence he did, all depends on the judge's own assessment and evidence at the court.
What is the criminal penalty for domestic violence?
Please read the review below for a further explanation.
This article below is an update of the article entitled Husband Beats Wife due to Anger, this is the Criminal Penalty(Jerat Hukum Suami Memukul Istri karena Terpancing Emosi) which was written by Letezia Tobing, S.H., M.Kn.and was first published on Friday, 24 January 2014.
This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.
All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.
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Domestic violence has been regulated under the Law on Elimination of Domestic Violence or Law 23/2004. The beating of the husband against his wife or the act of the wife kicking her husband until he falls down is physical violence.
As regulated in Article 5andArticle 6Law 23/2004, any person is prohibited from committing domestic violence against persons within the scope of their household, by way of physical violence, psychological violence, sexual violence, or domestic neglect. Physical violence is an act that could cause pain, illness, or serious injury.
For this physical violence, the perpetrator can be subject to criminal sanction as regulated in Article 44 Section (1) Law 23/2004, namely that anyone who commits an act of physical violence within the scope of the household is subject to imprisonment for a maximum of 5 years or a maximum fine of IDR 15 million.
In the event that the act of physical violence resulted in:[1]
Victims who become ill or are seriously injured, perpetrators will be sentenced to imprisonment for a maximum of 10 years or a maximum fine of IDR 30 million.
Death of victims, the perpetrator is sentenced to imprisonment for a maximum of 15 years or a maximum fine of IDR 45 million.
However, if the act is committed by the husband against the wife or vice versa that does not cause illness or obstacle to him/her to carry out work or livelihood or daily activities, the perpetrator will be sentenced to imprisonment for a maximum of 4 months or a maximum fine of IDR 5 million.[2]
Regarding the act of the husband hitting his wife due to his emotional provocation and because the wife has kicked her husband first, this may at first glance appear to be self-defense from the husband. However, Law 23/2004 does not regulate whether the act of physical violence committed is a form of self-defense. This kind of self-defense could be found in the previous Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force in 2026[3], namely:
Article 49 Criminal Code
Law 1/2023
Not being convicted, any person who commits an act of forced defense for himself or for another person, the honor of decency or property of himself or for another person, because there is an attack or threat of attack which is very close at that time which is against the law.
Article 34
Any Person who is compelled to commit a prohibited act shall not be sentenced, if the said act is carried out due to defense against an attack or threat of immediate attack which is unlawful upon oneself or another person, honor in the sense of decency, or property of oneself or that of another person.
An involuntary defense which exceeds the limit, which is directly caused by severe mental shock due to the attack or the threat of attack, shall not be convicted.
Article 43
Any Person who conducts an excessive forced defense that is directly caused by severe mental shock due to
an attack or threat of immediate attack which is unlawful, shall not be sentenced.
However, in order to be considered as a forced defense, certain conditions must be fulfilled. R. Soesilo in his book entitled The Book of Criminal Code (Kitab Undang-Undang Hukum Pidana/ “KUHP”) and its Commentaries Article by Article (pp. 64-66) explains that there are 3 requirements that must be fulfilled, namely:
The act committed must be compelled to defend (defense). The defense must be absolutely necessary, one might say there is no other way.
The defense must be carried out only against the interests referred to in the article, namely the body, honor, and property of himself or another person.
There must be attacks that are against the right and threatening attacks at that time.
According to the information you have provided, the husband may actually take other actions than hitting his wife. For example, the husband may say that he does not like to be treated like that by his wife. Because basically, in a marriage, everything should be discussed first between husband and wife in order to find the best solution. Therefore, seeing that there are other possibilities that can be carried out, the act of the husband hitting his wife cannot be said to be a form of defense or forced defense.
In answer to your question, regarding the law of a husband beating his wife, basically, the husband can be punished according to Article 44 Law 23/2004. However, in fact, the actions of both husband and wife violate the provisions of Law 23/2004, therefore, whether the husband will be subject to criminal sanction by the judge for the violence he did, all depends on the judge's own assessment and evidence at the court.
Case Study
As an example of domestic violence case, we will summarize the District Court Decision of Tanjung Balai Asahan No. 258/Pid/B/2013/PN-TB. The defendant has been proven to have violated Article 44 Section (1) Law 23/2004 as alternative charges, and the elements of which are as follows: (pp. 7-8)
Whoever
Whoever here refers to the person or subject of law who commits a criminal act, namely the defendant.
Committing acts of physical violence within the scope of the household
According to the testimony of the witness, the instruction letter, and in association with the evidence at the court, which is the defendant is proven to have abused the witness because the witness first pulled the clothes worn by the defendant, then the defendant deflected the witness so that it hit the face of the witness and the defendant twisted the hand of the witness so that the hand of the witness was sprained.
The judge declared that the defendant was legally and convincingly proven guilty of committing the criminal act of physical violence within the scope of the household. The judge then sentenced the defendant to a term of 5 months in prison (p. 9).
These are the answers we can provide, we hope you will find them useful.
