Inheritance Adat Law in the Supreme Court3

There are a variety of adat inheritance laws based on the different kinship systems in Indonesia. Basically, there are two types of property in inheritance: (1) the ancestral property (hartapusaka), or separate property, which is brought by the husband or wife into the marriage and remains separately owned; and (2) the marital property, which is acquired during the marriage (gono-gini).

Firstly, there are the adat law systems of patrilineal societies (Batak, Balinese, Sasak, Indonesian Chinese, some Papuans), which do not grant any right of inheritance to the wife/widow and daughters. Under the traditional patrilineal system, ancestral property is not meant for the wife or the daughter and should always go to the male descendant. Marital property is not known in these systems, as all the property acquired during marriage goes to the patrilineal clan of the husband. If the widow cannot be the heir of her deceased husband, the question—already submitted by Daniel Lev—is which part of the inheritance may she be entitled to in order to support herself?

In the early 1950s, many court decisions concerning patrilineal societies did not give justice to widows and daughters. Initially, the Supreme Court tended to confirm such decisions. In 1955 in a case on Bali, according to adat law, the widow had to leave her deceased husband's house. One of

the husband's brothers demanded this on the ground that the widow had committed adultery. The Supreme Court then ruled that only the son of the decedent is entitled to the father's house and that the widow has no inheritance right.

In the same year, the Supreme Court decided a case concerning Sasak adat on Lombok, deciding that the widow is not an heir of her husband, but that she is entitled to one-third of the marital property plus one- eighth of the separate property because she raised his children.

It was not until 1958 that the Supreme Court started to change its position. In that year, the Supreme Court upheld the decision of the Adat Court of first instance in Lombok, which ruled that a girl has the right to her father's land. The Appellate Court had overturned this decision. In 1959, the Supreme Court also ruled that in its development, the adat inheritance law of Batak grants the marital property to the widow and children. This is done in the interests of the children who are still young and under the custody of the mother, and not under the control of their father's brother.

On this point, changes have occurred, e.g., among the Batak, so that women can actually inherit marital property after the death of the father or husband. Moreover, in a well-known ruling in 1961, the Supreme Court decided to establish the position of daughters as inheritors their father's ancestral property. In this Djuma Pasar case, the plaintiff was the only child in the family. According to adat law, she was not entitled to the ancestral property, which should go instead to the family of her father's brother's line. However, the Supreme Court ruled that Indonesian society had changed and that women generally held a right to inheritance in such cases.

This was only the start of a series of progressive decisions of the Supreme Court on inheritance for Batak women. Between 1961 and 1985, there have been nine decisions on Batak inheritance that recognise and grant the widow the inheritance rights to her husband's property and also recognise and grant the daughters the rights to their father's property. The share of the property received by the daughter is equal to the share of the brother (Irianto 2005).

Second, in societies with bilateral kinship systems such as the Javanese and Sundanese, a widow inherits the marital property, her share being one-third or one-half of the estate. The rest of the estate should be shared among the children or among the husband's relatives. The separate property of the husband will be inherited by the children, and if there are no child in the family, it will be given back to the husband's family. Similarly, the separate property of the wife will also go to the children.

This had not always been the case. In 1952, the Appellate Court in Surabaya, East Java, upheld a decision from the Blitar Civil Court by determining that: “a child is an heir of its parents (the father), and parents are the heirs of their children.” From that statement, we can see that the right of the widow is not recognised.

This decision was not appealed before the Supreme Court, but Wiryono wrote a critical note about it. He questioned whether the reference of the judge to “self-experience” as the basis for the judgment referred to the community's experience or the experience of the judge himself. In fact, the decision of the court went against recorded adat law. On that basis, courts in Java and Madura decided that in the case that inheritance was in the form of a plot of land and a house, the widow had to be given the rights over the property, and only if there was some remaining inheritance would it be given to their children. The question is what should happen if there is a large amount of inheritance. The study of adat law before the war in Sidoarjo, East Java, showed that the adat law practised there determined that the inheritance rights of a widow should be equal to those of the children. On that basis, Wiryono did not agree with the statement that only children are entitled to become heirs of the parents/the father, not the mother/widow.

The third type are societies with a matrilineal kinship system, like the Minangkabau. Although inheritance of land is determined based on the mother's line, women lack the power to control its use and management.

Wiryono's promotion of women's inheritance rights here was not always followed by other judges and continued to be debated, including in inheritance cases among the Minangkabau. But he persevered in his approach. In 1957 the Supreme Court under Wiryono came to hear a case originally brought to the Bandung Civil Court, concerning the inheritance of a Minangkabau estate. The case concerned the determination of the heirs of the decedent (Dr Muhtar), a male medical doctor originally from Minangkabau, West Sumatra. The doctor's family demanded that the inheritance would be given to his family following his mother's line. The Bandung Civil Court rejected their claim and determined that the heirs of the doctor were his children, while his widow (Ms Siti Roekasih) was entitled to half of her husband's property because she had supported her husband's career during the marriage.

The case was upheld on appeal but overturned upon cassation. The Supreme Court stated that the Bandung Civil Court had erred in determining only the children as the heirs and not Ms Roekasih. The Supreme Court argued that the term “heirs” should not be used, but instead the term “collectively have the rights.” In this manner, Ms Roekasih was also entitled to a part of her husband's inheritance estate.

In summary, during the period of the 1950s-1960s, the Supreme Court determined the following in cases of inheritance: (ι) the right to an estate of the widow who has supported her husband during his life, i.e., to the separate property of the husband and the marital property; (2) the right of the widow to both types of the property (separate and marital property); (3) the right of the widow to inherit both the separate property as well as the marital property, at the amount which is equivalent to the rights of the children.

This period is referred to as the transitional period, in which Indonesia went through a process of transformation from a country with Dutch administrative attributes towards a free and independent nation. Wiryono envisioned a national inheritance law suitable for Indonesia in the future, an inheritance law that takes into account a sense of justice considered suitable to the new nation. The main consideration was the principle of egalitarianism, which was supported by the significant role Indonesian women had played in the struggle for independence (Lev 1962).

In general, the courts on Java started to follow the Supreme Court decisions, arguing that they were in line with how adat law in Central Java had developed. And if they did not, the Supreme Court would correct them, for instance in a case from Bojonegoro in which the Appellate Court gave only one-third of the inheritance to the widow, and the Supreme Court changed this to half of the estate. The children's part was moreover put under the control of the widow until they had come of age.