Journal of Islamic Law (JIL), Vol. 4, No. 2, 2023.

Solving Pregnancy Out-of-Wedlock: ‘Dual Validity’ of Ngampang
Marriage among Dayak Muslim Community
in Sintang, Indonesia
Mengatasi Kehamilan Di Luar Nikah: Keabsahan Ganda
Perkawinan Ngampang di Masyarakat Muslim
Dayak Sintang, Indonesia
Muhammad Adib Alfarisi*
Universitas Islam Negeri Sunan Kalijaga Yogyakarta, Indonesia
adibalfarisi19@gmail.com
Muhammad Jihadul Hayat
Universitas Islam Negeri Sunan Kalijaga Yogyakarta, Indonesia
muhammad.hayat@uin.suka.ac.id
Abdul Rahim Hakimi
Herat University, Afghanistan
hakimiabdulrahim@yahoo.com
DOI: 10.24260/jil.v4i2.1283
Received: April 6, 2023
* Corresponding Author

Revised: July 3, 2023

Approved: July 28, 2023

Abstract: According to most scholars of Islamic jurisprudence (jumhūr
ʿulamā), marriage due to pregnancy (ngampang) is permissible as long as it is
conducted under fiqh (Islamic jurisprudence) rules. Its validity is not
contingent upon the situation/locus ‘in front of the state official’. It means
that there is no significance in remarrying before the state official if an
Islamic marriage has previously been performed beyond the walls of the
state building. In reality, however, the community—in this context, the
Muslim community of Sintang—often remarries before a marriage registrar
to achieve state recognition in the case of marriage due to pregnancy. This
article portrays how the Sintang Muslim community legalizes marriage status
due to pregnancy. Data were collected through interviews. This article argues
that in order to obtain state recognition of their marriage due to pregnancy,
the Muslim community of Sintang often performs twofold marriage
ceremonies. The first is according to customary standards (in line with the
Statute of the Sintang Kingdom) and following Islamic rules. The second is
according to national procedure (in front of a state official), which applies the
same Islamic terms. It indicates that, in terms of resolving the issue of
pregnancy out-of-wedlock, the Sintang Muslim community has to go through
two standards that are not substantively contradictory to each other. Both
standards actually rest on the same principles in Islamic law.
Copyright (c) 2023 by Muhammad Adib Alfarisi, Muhammad Jihadul
Hayat, and Adul Rahim Hakimi

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Keywords: Pregnancy Out-of-Wedlock, Marriage by Pregnancy, Dual
Validity, Ngampang Marriage, Customary Law.
Abstrak: Menurut jumhur ulama, pernikahan karena hamil (ngampang)
sebenarnya boleh selama dilakukan menurut aturan fikih. Keabsahannya
tidak ditentukan oleh situasi/lokus ‘di hadapan penghulu negara’. Sehingga
tidak ada signifikansi untuk menikah kembali di hadapan pegawai negara
tersebut jika sebelumnya sudah dilakukan pernikahan secara Islam di luar
dinding Kantor Urusan Agama. Akan tetapi dalam kenyataannya, di sebagian
masyarakat—dalam konteks ini Komunitas Muslim Sintang—kerap
melakukan pernikahan kembali di hadapan pegawai pencatat nikah guna
meraih pengakuan negara. Berangkat dari hal ini, artikel ini memotret
bagaimana komunitas muslim Sintang melakukan legalisasi status
pernikahan hamil. Data dikumpulkan melalui wawancara. Artikel ini
berargumen bahwa untuk menjadikan kawin hamil memiliki status setara
dengan pernikahan pada umumnya, komunitas muslim Sintang kerap
melakukan pernikahan dua kali, yakni pernikahan menurut standar adat
(dengan membayar denda-denda menurut Undang-Undang Kerajaan
Sintang) dan pernikahan menurut standar prosedur nasional (di hadapan
penghulu negara). Hal ini mengindikasikan bahwa, dalam hal menyelesaikan
persoalan kehamilan di luar nikah, komunitas Muslim Sintang harus
melewati dua standar yang sebenarnya tidak bertentangan secara subtantif.
Kedua standar sebenarnya didasarkan pada prinsip-prinsip sama yang
terdapat dalam hukum Islam.
Kata Kunci: Hamil di luar Nikah, Kawin Hamil, Dualitas Keabsahan,
Perkawinan Ngampang, Hukum Adat.
A. Introduction
The increasing incidence of marriages due to pregnancy in Indonesia
appears to be an undeniable phenomenon.1 Thus far, the country has not found a
solution to prevent such marriages from occurring or to address pregnancies
before marriage.2 It is a matter of concern for the Indonesian Muslim community,
as premarital pregnancy is considered a shameful disgrace for both the individuals

1 This is evident in the case of child marriage. See: Eva F Nisa, “Battling Marriage Laws :

Early Marriage and Online Youth Piety in Indonesia,” Hawwa 18, no. 2–3 (2020): 76–102; Singgih
Susilo et al., “Investigation of Early Marriage: A Phenomenology Study in the Society of Bawean
Island, Indonesia,” Journal of Population and Social Studies [JPSS] 29, January-December (2021):
544–62; Bagya Agung Prabowo, “Pertimbangan Hakim dalam Penetapan Dispensasi Perkawinan
Dini Akibat Hamil di Luar Nikah pada Pengadilan Agama Bantul,” Jurnal Hukum Ius Quia Iustum 20,
no. 2 (2013): 300–317.
2 Ahmad Muqaffi, Rusdiyah Rusdiyah, and Diana Rahmi, “Menilik Problematika Dispensasi
Nikah dalam Upaya Pencegahan Pernikahan Anak Pasca Revisi UU Perkawinan,” Journal of Islamic
and Law Studies 5, no. 2 (2022): 361–77.

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involved and their families.3 That practice is unwanted within Muslim society. In
Islamic law, adultery is prohibited, while the legal status of marriage due to
pregnancy (of adultery) remains a subject of debate among scholars. 4
When pregnancies out-of-wedlock occur, society often seeks solutions to
mitigate the shame upon the family. One such solution may involve entering into a
sham marriage5 when a woman is married to another man who did not impregnate
her for the purpose of concealing her family’s shame.6 This type of marriage is
referred to kawi’ pura marriage.7 This phenomenon of marriages conducted to
conceal family shame occurs in the East Kolaka community. A similar phenomenon
of marriages for the same purpose is also observed in the Muslim community of
Sintang. However, in the context of the Sintang community, the pregnant woman is
married to the man who impregnated her. This type of marriage is referred to as
ngampang marriage. Both kawi’ pura and ngampang marriage are marriages
compelled by the need to conceal the family’s shame.
Ngampang marriage is not conducted as a pretense; it is carried out
seriously as if in regular marriages. The marriage is established by adhering to
customary law requirements (particularly fines) and Islamic law, but it does not
involve the state’s marriage registrar. If the parties of ngampang marriages will
state recognition, they often choose to perform the second marriage at the local
Office of Religious Affairs (KUA). This means that two Islamic marriage contracts

3 Agung D. Laksono et al., “Unmarried Women and Unintended Pregnancy: An Indonesian

Cross-Sectional Study,” Indian Journal of Community Medicine 48, no. 2 (2023): 361–63.
4 See: Abdel Salam Sidahmed, “Problems in Contemporary Applications of Islamic Criminal
Sanctions: The Penalty for Adultery in Relation to Women,” British Journal of Middle Eastern Studies
28, no. 2 (November 2001): 187–204; Abdulmajeed Hassan Bello, “The Punishment for Adultery in
Islamic Law and Its Application in Nigeria,” Journal of Islamic Law and Culture 13, no. 2–3 (October
2011): 166–82.
5 Syamsul Darlis, “Marriage for Covering Disgrace: The Practice of Kawi’ Pura Tradition in
the East Kolaka Muslim Society,” Al-Ahwal: Jurnal Hukum Keluarga Islam 15, no. 1 (2022): 21–38.
6 If marriage by pregnancy will be carried out by a couple who is under the minimum age of
marriage (and they wish state recognition), they must apply for a marriage dispensation at the
Religious Court. See: Dede Kania et al., “Marriage Dispensation Since the Decision of the
Constitutional Court Number 22/Puu-Xv/2017,” Jurnal Hukum Islam 19, no. 1 (2021): 43–64; Nurul
Inayah, “Penetapan Dispensasi Nikah Akibat Hamil di Luar Nikah di Pengadilan Agama Yogyakarta
Tahun 2010-2015 (Analisis Hukum Acara Peradilan Agama),” Al-Ahwal: Jurnal Hukum Keluarga 10,
no. 2 (2017): 178–93; Fahadil Amin Al Hasan and Deni Kamaluddin Yusup, “Dispensasi Kawin
dalam Sistem Hukum Indonesia: Menjamin Kepentingan Terbaik Anak Melalui Putusan Hakim,” AlAhwal: Jurnal Hukum Keluarga Islam 14, no. 1 (2021): 86–98.
7 Syamsul Darlis, “Marriage for Covering Disgrace,” 21–38.

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are executed in two different forums, customary and state. The first marriage
involves only traditional and non-state Islamic officials (penghulu swasta).8 In this
first marriage, customary provisions are combined with Islamic rules. The second
marriage is conducted following the state’s procedures in the presence of a
government marriage registrar who also applies Islamic law. Therefore, it can be
said that the first marriage ceremony represents a combination of customary and
Islamic principles, whereas the second marriage represents a combination of state
regulations and Islamic principles. This demonstrates that, in addressing cases of
pregnancy out-of-wedlock, the Muslim community in Sintang appears to apply
what can be termed as ‘dual validity’.9 This practice appears peculiar because both
processes are, in fact, rooted in Islamic law; however, due to administrative
matters, the marriage must be conducted twice. The occurrence of a second
marriage indicates that the state formally applies a concept of ‘dual validity’.10
Based on the above, this article discusses how the Muslim community in
Sintang practices ‘dual validity’ to address instances of social deviation, pregnancy
out of marriage. This research is inspired by the concept of the relationship
between Islamic law/customary law and State Law, which scholars have
extensively studied.11 This article comes from fieldwork conducted from May to
September 2021 in Sintang Subdistrict, West Kalimantan (Borneo), Indonesia. We
interviewed 13 informants: six individuals engaged in the practice of ngampang
marriage, a Malay customary leader, the Head of the KUA for the Sintang
Subdistrict, and six local religious figures, including members of the Indonesian
Ulema Council (MUI, Majelis Ulama Indonesia) in the Sintang Regency. We also
8 It can be said that in this context, the existence of non-state marriage officiants is utilized.

See: Al Farabi, “The State Penghulu vs the Non-State Penghulu: The Validity and Implementing
Authorities of Indonesian Marriage,” Justicia Islamica: Jurnal Kajian Hukum dan Sosial 17, no. 2
(2020): 343–64.
9 Euis Nurlaelawati, “Managing Familial Issues. Unique Features of Legal Reform in
Indonesia,” in Islam in Indonesia, ed. Jajat Burhanudin and Kees van Dijk (Amsterdam: Amsterdam
University Press, 2018), 123–38.
10 John Richard Bowen, “Shari’a, State and Social Norms in France and Indonesia,” ISIM
Paper, 2001, 1–36.
11 See: Ratno Lukito, Hukum Sakral dan Kukum Sekuler: Studi tentang Konflik dan Resolusi
dalam Sistem Hukum Indonesia (Yogyakarta: Pustaka Alvabet, 2008), 1-15; John R Bowen, Islam,
Law, and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge: Cambridge
University Press, 2003), 1-268; Muhammad Latif Fauzi, Aligning Reigious Law and State Law: StreetLevel Bereaucrast and Muslim Marriage Practices in Indonesia (Leiden: Leiden University, 2021), 124.

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analyzed the Sintang Kingdom Statue of 1948, obtained from the Malay customary
leader, while taking into consideration various marriage regulations applicable in
Indonesia.
B. The Upturn Trend of ‘Marriage by Pregnancy’ in Indonesia: Law and
Practices
Within the realm of fiqh (Islamic jurisprudence), the issue of marriage
involving pregnant women has been a classical subject of debate. Islamic classical
scholars predominantly permit such marriages. For instance, scholars like Imām
al-Shāfi’ī and others regard such unions as acceptable and valid. It comes to sense
that if such a marriage occurs, the marriage itself can be solemnized with the
condition that it is conducted with the man who impregnated the woman. Because
it is no longer a new discussion, Indonesian researchers tend to examine the legal
consequences that arise when such marriages take place, such as the status and
rights of the child born from it. For example, Nurlaelawati explains the cases of
extramarital children’s rights articulated to the concept of the biological father
within the framework of human rights.12 She discovered that Indonesian law, as
recognized through Constitutional Court rulings, acknowledges the civil
relationships between children born out-of-wedlock and their biological fathers. In
addition to examining children’s rights, many other researchers delve into the
concept of filiation. Among examples are Engelcke and Yassari,13 Ridlo et al.,14 and
Yakin.15

Euis Nurlaelawati and Stijn Cornelis van Huis, “The Status of Children Born out of
Wedlock and Adopted Children in Indonesia: Interactions between Islamic, Adat, and Human Rights
Norms,” Journal of Law and Religion 34, no. 3 (2019): 356–82.
13 See: Dörthe Engelcke and Nadjma Yassari, “Child Law in Muslim Jurisdictions: The Role of
the State in Establishing Filiation (Nasab) and Protecting Parentless Children,” Journal of Law and
Religion 34, no. 3 (2019): 332–35; Dörthe Engelcke, “Establishing Filiation (Nasab) and the
Placement of Destitute Children into New Families: What Role Does the State Play?,” Journal of Law
and Religion 34, no. 3 (2019): 408–32
14 Muhammad Rosyid Ridlo, Imron Rosyadi, and Muthoifin Muthoifin, “The Law of Nasab
for Children Born Outside of Legal Marriage According to Imam Ibn Qayyim al-Jauziyyah,” Profetika:
Jurnal Studi Islam 23, no. 2 (2022): 321–30.
15 Ayang Utriza Yakin, “Establishing Filiation Relationships (Nasab) of Children Born of
Unlawful Sex (Zina): Legal Change, Positivization, and Standardization in Indonesian Islamic
Courts,” in Canon or Code? Standardising and Transmitting Islamic Law (UCL-SSH/RSCS-Institut de
Recherche Religions, Spiritualités, Cultures, Sociétés, 2022), 1–22.
12

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The positive law in Indonesia regarding pregnancies out-of-wedlock is
governed by the Compilation of Islamic Law (KHI) and Marriage Law No. 1 of 1974.
Article 52 of KHI stipulates that if an individual becomes pregnant out-of-wedlock,
marriage must promptly occur with the person responsible for the pregnancy
without waiting for the child’s birth. Meanwhile, Article 53 asserts that a marriage
resulting from a pregnancy out-of-wedlock is considered valid under Islamic
religious law.16 Furthermore, Marriage Law No. 1 of 1974 establishes marriage
requirements and provisions, including those during pregnancy. In this regard,
positive law allows for marriages resulting from pregnancies out-of-wedlock by
regulating the responsibilities that must be fulfilled by the parties involved. With
these provisions in place, the state recognizes marriages that take place during
pregnancy as long as the requirements and procedures prescribed by the law have
been followed.17
There are at least two ways couples who marry out-of-wedlock can obtain
state recognition during pregnancy. First, they can register their marriage at the
local KUA.18 In this process, couples who have married according to certain
customary or religious practices register their marriage at the KUA to obtain legal
validity in the eyes of the state. Alternatively, they can submit a marriage
validation proposal (isbāṭ nikāḥ) to the religious court.19 After obtaining a decision
from the Religious Court, the decision serves as the basis for registering their
marriage at the KUA. Through these two methods, marriages that occur during
pregnancy can have the same legal validity as conventional marriages.
Normatively, in Indonesian marriage law, no provisions prohibit marrying during
pregnancy. On the contrary, if a pregnancy occurs, the law suggests that marriage
should be conducted as soon as possible. There is no legal differentiation (rights
and obligations) between couples from pregnancies leading to marriage and
conventional marriages.
In contrast to positive law, scholars have at least two views regarding
marriage during pregnancy within fiqh. Firstly, scholars such as Imām al-Shāfi’ī,
16 “Presidential Instruction No. 1 of 1991 on Compilation of Islamic Law.”
17 “Marriage Law No. 1 of 1974,” Articles 6-7.
18 “Marriage Law No. 1 of 1974,” Article 2.
19 “Presidential Instruction No. 1 of 1991 on Compilation of Islamic Law,” Article 7.

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Imām Ḥanafī, al-Zuhaīlī, and Ibn Ḥazm argue that marriage is permissible for
couples who marry during pregnancy out-of-wedlock. In the Shāfi’ī school, the
marriage of a pregnant woman, whether to the man responsible for the pregnancy
or another man, is considered valid without waiting for the woman to give birth.20
The Ḥanafī school considers the marriage of a pregnant woman, whether to the
man responsible for the pregnancy or another man, as valid. However, there is a
condition that if the man marrying her is not responsible for the pregnancy, then
that man should refrain from having sexual intercourse until the child is born. This
condition is in place to avoid confusion about the child’s parentage.21
Al-Zuhaīlī explains that a man who has committed adultery is allowed to
marry the woman with whom he has had an adulterous relationship. If the woman
becomes pregnant and gives birth six months after the marriage contract, the child
is considered the man’s offspring. However, suppose the child is born in under six
months. In that case, the child is considered the mother’s offspring unless the
father makes a statement acknowledging the child as his own without admitting to
the adultery. This statement serves as the basis for attributing the child to him. In
contrast to the scholars mentioned above, Ibn Hazm states that men and women
who commit adultery can be married and have sexual relations, provided they
have repented and undergone the prescribed punishment, which often includes
flogging (whipping).22
On the other hand, opposing views are found in the Mālikī and Ḥanbalī
schools of thought. The Mālikī school tends to prohibit marriage during pregnancy
entirely. Whether it is with the man responsible for the pregnancy or not, marriage
should be postponed until after the child’s birth. Like the Maliki school, the Hanbali
school also generally discourages marriage during pregnancy. While it is not as
absolute as the Mālikī stance, Ḥanbalī scholars typically recommend waiting until
the child is born, especially if there is doubt about the child’s parentage.
These different perspectives within Islamic jurisprudence reflect the
diversity of opinions and interpretations within the Islamic legal tradition
20 ʿAbd al-Raḥmān al-Jazīrī, Kitāb al-Fiqh (Miṣr: Maktabat al-Tijāriyyah al-Kubrā, 1969),

523.
21 Al-Sayyid Ṣabīq, Fiqh al-Sunnah (Jakarta: PT Pena Pundi Aksara, 1983), 282-3.
22 Abdur Rahman Ghazaly, Fikih Munakahat (Bogor: Kencana, 2003), 250.

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regarding the issue of marriage during pregnancy out-of-wedlock. It is important
to note that the application of these views may vary in different cultural and
regional contexts.23 Indeed, the Hanbali school of thought also holds a similar
position. According to the Hanbali school, a man can only marry a woman who has
been through her waiting period (‘iddah) and has repented from her sinful
behavior. The view of Abu Yusuf goes even further. He states that they should not
be married because if they are, the marriage would automatically become void
(faṣīd). This opinion is based on the Sūrah al-Nūr verse 3, which states that
believers should not marry those who commit adultery (zina). Ibn Qudāmah
concurs with the view of Imām Abū Yūsuf and adds that a man should not marry a
woman if he knows she has committed zina with someone else. These differences
in interpretation within the Hanbali school further illustrate the diversity of
opinions within Islamic jurisprudence regarding the issue of marriage during
pregnancy. Recognizing that these perspectives can vary among scholars and may
be applied differently in various cultural and regional contexts is essential.24
From the discussion above, it is evident that there is not necessarily a
complete contradiction between positive law and Islamic law concerning the
context of marriage during pregnancy. It can be said that the practice of ngampang
marriage under national law is not explicitly prohibited. In reality, pregnancies
leading to marriage do occur within societies. It demonstrates that while there may
be variations in interpretations and approaches within both legal systems, there
are ways in which they can coexist or accommodate certain practices within the
bounds of their respective norms and regulations. The coexistence of legal norms
and customary practices often reflects the complex interplay between legal
systems and societal realities.
C. Sanction of Ngampang Practice according to Statute of (the Past) Sintang
Kingdom: Customary Guidance
The Muslim Dayak community in Sintang is a part of the broader Dayak
ethnic group. The Dayak people are indigenous to Borneo and are traditionally
23 Wahbah al-Zuhaīlī, Al-Fiqh al-Islāmī (Bayrūt: Dār al-Fikr, 1991), 150.
24 Zainuddin Ali, Hukum Perdata Islam di Indonesia, (Jakarta: Sinar Grafika, 2006), 45.

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associated with inhabitants of remote, secluded areas who adhere to their
traditional religion, Kaharingan.25 The Dayak community members who embrace
Islam often relinquish their identity as Dayak tribespeople.26 These converts
(muʿallaf) identify themselves as Malays, which connotes adherence to Islam. Both
Malays and Dayaks share close ties due to intermarriage, as some have familial
connections through mixed marriages. This article specifically focuses on the
minority group of Muslim Dayaks residing within a predominantly Malay
community.
Consequently, customary law and Islamic law merge to some extent,
seemingly becoming one. What is considered customary law is, in fact, Islamic law
itself. It means that traditional authorities practice Islamic law in their daily affairs.
Both coexist in the sense that customary institutions and Islamic law are two
elements of the legal system within the local Muslim community where the
research is conducted.27 Systemically, it can be viewed that Islamic law serves as
the substantive law, while customary institutions function as the structural
framework of the legal system. Both elements complement each other, creating a
legal culture. In this context, ngampang marriage is a product of the legal culture
that has emerged through the interaction between Islamic law and customary
institutions.
Initially, the practice of ngampang was a term used by the Sintang
community to refer to cases where a man and a woman engaged in intimate
relations without marriage. Women in ngampang marriage typically became
pregnant, and the responsible man was expected to take responsibility. If
community members were discovered to have engaged in ngampang, the
customary leader would officiate a marriage for them according to Islamic law.
This religiously sanctioned marriage served as a sanction for the individuals
involved and a lesson to the local community not to engage in such practices.
25 Ahmad Muthohar

AR, Islam Dayak: Dialektika Identitas Dayak Tidung di Kalimantan
(Semarang: Fatawa Publishing, 2015), 1.
26 Michael Hitchcock, Victor T. King, and Mike Parnwell, eds., Tourism in South-East Asia
(Abingdon, Oxon: Routledge, 2019), 29.
27 Ismail Ismail, Novi Hendri, and Putri Rahmah Nurhakim, “Minangkabau’s Doro Tradition:
Coexistence of Customary Law and Islamic Law in Caning Punishment,” Samarah: Jurnal Hukum
Keluarga dan Hukum Islam 7, no. 1 (March 31, 2023): 579–601.

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According to Syahrel, one of the customary leaders in Sintang, the practice of
ngampang can deter the perpetrators because they cannot escape their legal and
social responsibilities.28
The phenomenon of marrying while pregnant outside of a valid marriage
according to religious norms constitutes a violation of Malay customary law. The
practice of marrying pregnant women out-of-wedlock contravenes Article 45 of
the statute of Sintang Kingdom No. 1948. Article 46 stipulates:29
Menjatakan adat orang berfendak, sampai boenting perempoean itu. Maka
laki-laki tiada maoe laloe kawin, maka itoe laki-laki membajar adat 64 (enam
poeloeah empat) real, ringgit pakai 7 (toedjoeh) soekoe. Djika laloe kawin,
dia membajar adat rambai pemalinja, dinding pandoeng tempajan kapat,
tjintjin penjewak, pemali dirinja dan adat kampoeng 64 (enam poeloeah
empat) real dan kesopanan mak bapaknja itoe perempoean. Djika tiada laloe
kawin, adat kampoeng 64 (enam poeloeah empat) real, itoepoen laki-laki
bajar dijoega, dan kesopanan mak bapaknja perempoean itu laki-laki banjar
djoega.
According to Article 45, the sanctions for men who impregnate women
outside of a valid marriage, both religiously and legally, involve marrying the
woman in question and paying a specified fine. The man is required to pay 64 reals
and seven ringgits to the Malay Customary Leader. When the marriage is
conducted, the man must also provide a bride price (adat pamil or pantang),
customary exchange money (uang adat tempayan), and a spirit ring (cincin roh), as
well as respect money (uang kesopanan), to the parents of the woman.
Additionally, he must pay a customary village fee of 64 reals to the Malay
Customary Leader. Suppose the man chooses not to marry the pregnant woman. In
that case, he is only required to pay the customary village fee and customary
respect money to the mother and father of the woman.
The customary law mentioned above can only be applied by the customary
leader after receiving a prior report from the community. The customary leader
first calls in the couples engaged in pregnancy out-of-marriage, along with their
parents and relatives. Once both parties in the dispute are present, the customary
leader informs them that their actions have violated customary law. They are then
28 Oeti Syahrel, Sintang Regency Malay Traditional Figure, May 8, 2021.
29 “The 1948 Sintang Kingdom Law,” Article 46.

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required to perform the ngampang marriage and pay the fine. At this point, the
customary leader acts as a ‘judge’ to resolve the case. Simultaneously, the
customary leader also serves as a mediator to address the family-related issues
arising from each party involved.
The customary leader acknowledges that the practice of ngampang
marriage to solve pregnancy out-of-wedlock has been passed down through
generations and has become a common custom within the community. Typically,
the individuals engaged in this practice do not receive approval from their parents.
It is often because the male parties involved do not have stable employment, and
the female parties are still pursuing their education. 30 The Muslim Dayak
community voluntarily carries out this practice, and is a negative consequence of
unrestricted social interactions and a lack of awareness about religious law. They
engage in intimate relationships akin to those of a married couple, often after a
long courtship, until the woman becomes pregnant. 31 The illicit relationship
eventually becomes known to both parents and their families. Concerned about the
religious and social consequences of this misconduct, the parents and families
rectify the situation by reporting the ngampang practice to the customary leader
with the intention of arranging a marriage for the couple.
In cases where the individuals involved in the ngampang practice come
from different religious beliefs and ethnic backgrounds, the customary leader
typically requires the male partner to convert to Islam first. After the conversion,
the customary leader proceeds to marry them under Islamic law. The customary
leader may also require them to pay a fine or compensation known as ulun. In one
such case you encountered, they were asked to pay a single ulun, equivalent to one
gram of gold.32 The Malay Customary Leader determines the amount of this fine
based on the financial capability of the individuals involved in the ngampang
practice, and it is then submitted to the Malay Customary Leader. After they have
paid the customary sanction, the customary leader officiates the marriage under

30 Oeti Syahrel, Sintang Regency Malay Traditional Figure, May 8, 2021.
31 Arie Rizky Maulana, Actor of Sampang Practice, June 21, 2021; Fitri Putri Yanti, Actor of

Sampang Practice, June 21, 2021.
32 Nur Eka, Actor of Sampang Practice, August 28, 2021.

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religious and state laws.33 The practice of imposing a customary fine as a sanction
for individuals engaged in pregnancy out-of-wedlock is not limited to Sintang but
also occurs in several other regions.34
Although the ngampang practice has been resolved through customary
means, marriages within the Muslim Dayak community are not officially
recognized by the state because the state only acknowledges marriages conducted
according to religious rituals and registered with the KUA. Therefore, those
involved in the ngampang marriage take the initiative to legitimize their marriages
in the eyes of the state. At this point, formal actors, in this case, the Head of the
KUA, play a role in accommodating the marriage by facilitating its registration with
the KUA. However, since most of those involved in the ngampang marriage are
underage (below 19 years old), the Head of the KUA cannot directly register their
marriages. Instead, the Head of the KUA advises them to submit an isbāṭ nikāḥ
application to the Religious Court.35 Unfortunately, not all legal alternatives
recommended by state actors are followed due to the limited legal knowledge of
the individuals involved regarding state law. Up to this point, it has been found that
Malay customary law provides an alternative legal solution to address the
phenomenon of pregnancy out-of-wedlock as a temporary measure.
D. The (In)Validity of Ngampang Marriage according to Local Clerics: Religious
Consent
The legal sanction of Malay customary law involves marrying those
involved in the ngampang marriage, which has received a response from religious
authorities, specifically the MUI in Sintang Regency. We identified legal reasoning
typologies based on interviews with several MUI Sintang members. The main
difference between these typologies lies in whether or not pregnant women can be
married, both under Islamic law and state law.

33 Nijo, Head of the Office of Religious Affairs in Sintang District, May 8, 2021.
34 Iuliia N. Sushkova, “Marriage and Family Customs of the Finno-Ugric Peoples of the Volga

Region: Legal and Anthropological Analysis (Late XIX – Early XX Century),” Finno-Ugric World 14,
no. 1 (April 22, 2022): 87–99.
35 Nijo, Head of the Office of Religious Affairs in Sintang District, May 8, 2021.

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The first opinion is the permissibility of marrying a pregnant woman out-ofwedlock. This viewpoint is based on legal arguments and interpretations of Islamic
religious teachings. Religious leaders who support this view often cite verse AlNisā’ verse 23 as well as the opinions of Shāfiʿī and Ḥanafī, which allow marriage in
such situations.36 They believe that Islamic teachings provide flexibility in certain
cases, even though the ngampang marriage is not recommended in Islamic
teachings and is considered reprehensible. Their argument is supported by the
provisions in Article 53 of KHI and Marriage Law No. 1 of 1974, which legitimizes
such marriages under specific conditions that the involved parties take full
responsibility for their actions. They also refer to the MUI Fatwa No. 11 of 2012 to
support their stance.37 This fatwa recommends the importance of taking
responsibility for the victims of the ngampang practice, especially women.38
Furthermore, the religious leaders who support this view highlight the fact
that the ngampang marriage has become a custom or part of the culture of the
Muslim Dayak community in Sintang. They acknowledge the complexity of social
dynamics and the influence of changing social environments and technology on the
community, making it increasingly challenging to avoid this practice. This
viewpoint reflects an effort to find a balance between religious values and the
social realities of the local community. Nevertheless, they emphasize that full
responsibility for these actions must still be adhered to to maintain religious
values and morality amidst social and cultural changes. Saiful Anam states: 39
Marriages of pregnant women out-of-wedlock that occur in Sintang Regency
have become a local custom among young people. Recognizing that
pregnancy resulting from illicit relations without a valid marriage can lead to
mental and psychological distress and often a reluctance to acknowledge the
situation to determine the family lineage from the father’s side, marriages are
allowed to take place in such circumstances.

36 Khalidul Mufied, The Officials of the Indonesian Ulama Council (MUI) in Sintang Regency,

August 27, 2021.
37 “Majelis Ulama Indonesia Fatwa No. 11 of 2012 on the Status of Children Resulting from
Zina and Treatment towards Them.”
38 Edy Sunariyo, The Officials of the Indonesian Ulama Council (MUI) in Sintang Regency,
August 23, 2021.
39 Saiful Anam, The Officials of the Indonesian Ulama Council (MUI) in Sintang Regency,
August 30, 2021.

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Journal of Islamic Law (JIL), Vol. 4, No. 2, 2023.

The second viewpoint is that marrying a pregnant woman out-of-wedlock is
not permissible. Their argument is based on the strictness of Islamic teachings and
the standpoint of state law. Religious leaders who support this view often cite the
opinions of Imām Mālikī and Imām Ḥanbalī. They emphasize that the ngampang
marriage is a reprehensible act that should be avoided under the Quranic
prohibition of adultery, as stated in Sūrah al-Isrā’ verse 32.40 This viewpoint is
rooted in the belief that religious rules should take precedence over state legal
regulations. Despite the flexibility provided by state law in some cases, this
perspective emphasizes that religious law should be the primary guide when
dealing with social issues like this. Edy Sunariyo states: 41
The issue of ngampang marriage or marrying while pregnant out-of-wedlock
is not a cultural practice but rather a habit that has developed within the
community. Islam prohibits such vile deeds, and their legal status is
considered forbidden (ḥarām). Since engaging in reprehensible acts,
including becoming pregnant out-of-marriage, goes against Islamic teachings
and, as we can see in Sūrah al-Isrā’ verse 32, clearly states not to approach
adultery, this kind of behavior is not reasonable or permissible.
Furthermore, the religious leaders who fall into the second typology also
highlight the importance of preserving the purity of religious teachings and moral
values within the community. They believe that the presence of the ngampang
marriage threatens the integrity of religious and social values, which need to be
upheld. This perspective reflects an effort to prioritize religious values as a moral
and ethical foundation in the community’s life, even in the face of social and
cultural challenges. Because the majority of those involved in the ngampang
marriage are underage, social networks, neighbors, relatives, and peers play a
significant role in facilitating these marriages for children. 42
With these differing arguments, it becomes evident how the dominance of
Islamic law as customary law can influence the perspectives of religious leaders
40 Slamet Turmidzi, The Officials of the Indonesian Ulama Council (MUI) in Sintang Regency,
August 28, 2021.
41 Edy Sunariyo, The Officials of the Indonesian Ulama Council (MUI) in Sintang Regency,
August 23, 2021.
42 Bahman Baraie et al., “What Socio-Cultural Factors Encourage Child Marriage in
Sanandaj, Iran? A Qualitative Study,” Child & Youth Services, January 20, 2023, 1–22.

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Journal of Islamic Law (JIL), Vol. 4, No. 2, 2023.

and scholars. While there are efforts to seek balance and flexibility in Islamic law
and state regulations, others still emphasize the importance of prioritizing
religious teachings when addressing social issues like this. These findings reveal
the strong influence of Islamic religious teachings in the context of marriage. 43
E. Remarriage in Religious Office: State Formality
In the practice of ngampang in Sintang, Malay customary law plays a
significant role in handling cases of pregnancy out-of-wedlock. According to Malay
customary law, those involved in ngampang are required to marry and pay fines as
stipulated in the statute of the Sintang Kingdom.44 However, to officially register
their marriage, state law establishes requirements that must be met, including
provisions in Marriage Law No. 1 of 1974 and Law No. 16 of 2019.45
In reality, not all marriage practices among Muslim communities in the
Sintang are conducted in the presence of marriage registration officials. In cases
where this occurs, and the marriage is not registered with marriage registration
officials, the couple must propose for isbāṭ nikāḥ in the religious court. The process
and outcome of this marriage validation are not instant and mostly take a
relatively long period. Therefore, this option is often considered impractical for
couples when the woman is pregnant. However, this is not a dead-end situation.
Many married couples needing a marriage certificate without going through the
marriage validation process opt to have a second marriage ceremony in front of
marriage registration officials at the Office of Religious Affairs. It suggests that the
first marriage, which was conducted according to customary practices, ‘is not’
considered valid by the marriage registration officials. Consequently, the first
unregistered marriage does not result in the issuance of an authentic marriage
certificate.
Couples engaging in ngampang practice in Sintang conduct two marriages
to circumvent the administrative process. First, the prospective couple goes

43 Islam Uddin, “Reformulation of Islamic Matrimonial Law: British Muslims, Contemporary

Understandings and Normative Practices,” Journal of Muslim Minority Affairs 40, no. 1 (January 2,
2020): 6–25.
44 “The 1948 Sintang Kingdom Law,” Article 46.
45 Nijo, Head of the Office of Religious Affairs in Sintang District, May 8, 2021.

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through the customary process, where the marriage contract is executed under
Islamic principles. However, this first marriage is often not registered with the
KUA. After completing the first marriage process, the parties then go to the KUA to
register their marriage. The KUA typically does not immediately accept this
marriage. Officials from the KUA explain the procedures to the parties involved.
Essentially, they are advised to pursue an isbāṭ nikāḥ If not, the last option is to
have a second marriage ceremony. If they choose the latter, there is no need for
further validation from the religious court. The marriage date recorded in the
marriage certificate is the second marriage date. In this context, there is an
inefficient marriage practice where marriage is conducted twice with the same
contract: the first marriage for social or cultural recognition and the second
marriage for legal recognition by the state.
The second marriage does not need to happen if the first marriage directly
involves a state marriage registrar. In some circles where there is a better
understanding of the law, the first marriage may involve a marriage registrar.
However, for prospective couples who have not met the minimum legal age for
marriage, it is almost certain that the marriage will be conducted through
customary practices. This is because the KUA will reject registration if there is no
dispensation for marriage from the local religious court.
F. Practice in between Customary Law and State Law
In an effort to resolve cases of the ngampang practice, the Muslim Dayak
community in Sintang first follows the Malay customary law, which they have long
recognized. After going through the customary legal process, the marriage that
occurs is then submitted to the local KUA under the rules of state law. Referring to
the general procedures in Indonesia, any registration done by the KUA for a
marriage that was not conducted in front of a marriage registrar must go through
the isbāṭ nikāḥ procedure. However, certain aspects of the isbāṭ nikāḥ process can
be circumvented in specific contexts. It occurs, for example, in the Lengayang

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Journal of Islamic Law (JIL), Vol. 4, No. 2, 2023.

community.46 It should not necessarily be viewed in the context of a legal violation
but can also be seen as the strength of customary authority (private) over state
authority. Rather than being seen as a deviation from state law, this phenomenon
is a form of (non)compromise between two legal structures. The interaction
between

customary law and

state law

in

this

context demonstrates

interdependence. They mutually rely on addressing the social issues the local
community faces. The roles played by Malay customary leaders and the Head of
KUA affirm Fauzi’s findings that the relationship between customary law and state
law reinforces each other.47 It shows that the Muslim Dayak community in Sintang
can synergistically combine customary law’s values with the state’s legal system
when facing unwanted social issues.
Undoubtedly, the ngampang marriage has received responses from local
religious figures, particularly the MUI in Sintang. Religious leaders have different
opinions regarding the legality of marrying couples who are already pregnant outof-wedlock. However, the majority of them believe that such marriages can be
recognized as valid under Islamic and state law. This viewpoint is based on
references to several verses of the Quran, the opinions of Islamic jurists, and the
fatwa issued by MUI, which allows ngampang marriage with the condition that
those involved take responsibility for their actions. Most adopt a more lenient
religious interpretation and perspective on social and cultural issues, considering
the social impact and sustainability of the ngampang marriage in the local
community. They also refer to KHI and Marriage Law No. 1 of 1974, which allows
marriages between pregnant women out-of-wedlock and the men responsible for
the pregnancy. This viewpoint reflects the efforts of religious leaders to reconcile
religious values with the provisions of state law in the context of the ngampang
marriage.
The differing viewpoints of religious leaders highlight the complexity and
dynamics of the relationship between customary law and state law in addressing
46 Salma Salma, Hasanatul Wahida, and Muhammad Adib bin Samsudin, “Ignoring Family
Law Administrative Procedure: Falsifying Death of Spouses for the Registration of New Marriage in
Lengayang Muslim Community,” Al-Ahwal: Jurnal Hukum Keluarga Islam 15, no. 1 (2022): 1–20.
47 Muhammad Latif Fauzi, Aligning Religious Law and State Law: Negotiating Legal Muslim
Marriage in Pasuruan, East Java, Leiden Studies in Islam and Society 18, (Boston: Brill, 2023), 195–
210.

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the ngampang practice among Muslim Dayak communities in Sintang. The
responses from religious leaders can reflect their roles and reactions to sensitive
social issues, where they attempt to reconcile religious values with state legal
regulations in an effort to find appropriate solutions to complex social problems
that often involve conflicts between customary and state laws. It aligns with the
findings of Grijns and Horii regarding the compromise between state law and local
norms in cases of child marriages in West Java.
The presence of Melayu customary law in the ngampang marriage practice
reflects the significant role of customary leaders in resolving issues within their
community. A similar role is played by local marriage officiants (lebe) in the
practice of child marriages in Brebes, Indonesia. 48 Customary law is applied based
on generations-old traditions and involves a process of deliberation between
customary leaders and the community. The principle of justice is a consideration in
its implementation.49 After customary law is followed, the parties involved record
their marriage at the local Office of Religious Affairs, recognizing the marriage both
in terms of religious and state law. The relationship between state law and
customary law is interconnected and coexists without conflict within the
community.50 Customary law provides space and solutions for local issues, but over
time, state law or Islamic law becomes the solution for the community’s well-being
without conflicting with each other.51
This indicates that a conflict approach typically studies the interplay
between customary, religious, and state law.52 In Indonesia’s case of interfaith
marriages, the contestation between these three legal systems may not lead to a
solution. This issue can only be resolved through a compromise between
48 Arifah Millati Agustina, “Between Culture and The Sacredness of Fiqh: The Role of Lebe in
Child Marriage Practices in Brebes, Indonesia,” Journal of Islamic Law (JIL) 3, no. 2 (August 31,
2022): 212–31.
49 Lorretta Favour Chizomam Ntoimo and Favour Chukwunonyerem Ntoimo, “Who Owns a
Child? Conflict of Culture and Human Right in the Dissolution of Customary Law Marriage in
Nigeria,” Journal of Divorce & Remarriage 62, no. 5 (July 4, 2021): 398–409.
50 Robert Wai, “The Interlegality of Transnational Private Law,” Law and Contemporary
Problems 71, no. 3 (2008): 107–27.
51 Samuel E. Ojogbo and Omerionwan K. Edu, “Comparing Maintenance and Property Rights
in Marriage under Customary Law and Statutory Law in Africa,” Oxford University Commonwealth
Law Journal 22, no. 2 (July 3, 2022): 229–52.
52 Ratno Lukito, “Islamic Law and Adat Encounter: The Experience of Indonesia” (McGill
University, 1997), 1-38.

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institutional authority and personal autonomy. 53 In cases of marriage and
inheritance, there is tension between customary law and Islamic law in Malaysia. 54
There is a conflict between religious and state law in Canada, Australia, and South
Africa.55 Although there is tension between these three legal systems, the struggle
between customary law, religious law, and state law as discursive traditions can be
negotiated depending on local conditions and how well the first two legal systems
align with the legal ideology used by the state. 56
In the context of Sintang, customary law is applied inseparably from Islamic
law, and there is almost no clear boundary between the two. In the case of
pregnancies out-of-wedlock, the local community practices ngampang marriage,
which essentially means conducting a marriage due to the woman’s pregnancy.
However, this marriage is not a simple affair as in mainstream society. Instead, it
involves a series of customary rituals, where the Head of the Malay Customary
Institution imposes a fine on the offenders, followed by the requirement to enter
into marriage. 57 On one hand, the state law does not recognize these customary
marriage practices. On the other hand, state law provides a way for them to
legalize their marriages through official state recognition.58 At this point, no
conflict is found between customary law and state law. Instead, the two legal
systems complement each other.
F. Conclusion
The way pregnancy out-of-marriage issues are resolved in the Muslim
Sintang community illustrates the complexity of the legal system in the midst of
Indonesian Muslim society. It emphasizes that the prevailing law in society is not
only Islamic law but also local customary laws combined with state law. Islamic
53 Mohamad Abdun Nasir, “Religion, Law, and Identity: Contending Authorities on Interfaith

Marriage in Lombok, Indonesia,” Islam and Christian–Muslim Relations 31, no. 2 (April 2, 2020):
131–50.
54 M.B. Hooker, “Adat and Islam in Malaya,” Bijdragen Tot de Taal-, Land- En
Volkenkunde/Journal of the Humanities and Social Sciences of Southeast Asia 130, no. 1 (1974): 69–
90.
55 Peter Radan, Denise Meyerson, and Rosalind F. Atherton, eds., Law and Religion (London:
Routledge, 2004), 75-154.
56 Ratno Lukito, Legal Pluralism in Indonesia, (London: Routledge, 2012), 198-207.
57 Oeti Syahrel, Sintang Regency Malay Traditional Figure, May 8, 2021.
58 Nijo, Head of the Office of Religious Affairs in Sintang District, May 8, 2021.

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law and state law apply simultaneously, particularly in cases of pregnancy out-ofmarriage. They do not necessarily conflict with each other. In the ngampang
tradition, it is evident that the Muslim community in Sintang seeks a middle
ground, a way that both facilitates them and is considered appropriate according
to the laws that bind them. In practice, they involve various authorities, including
traditional leaders, Islamic scholars, and state officials.

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