The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

DOI

10.2991/icils-18.2018.21How to use a DOI?

Keywords

inheritance; children born out of wedlock; constitutional court; maqasid al-shariah

Abstract

The discourse on the right of children born out of wedlock, especially concerning their rights towards their biological fathers is a hot topic triggering heat debate among scholars. Orthodox Muslim scholars had unanimous opinion denying their lineage towards their fathers while human right activists contended that they should enjoy the same benefits as those of children born of the wedlock. They based their opinion on the Universal Declaration of Human Rights and the United Nations Convention on the Right of Child. This paper focuses on the examination of the Constitutional Court decree Number: 46/PUU-VIII/2010 concerning with legal status of children born out of wedlock. The study will delve into the reasons behind the decree and analyze them according to Islamic law, especially by the objectives of sharia (maqasid al-shariah). The maqasid al-shariah assumes that Islamic law is a linked system consisting of multi-dimensions aspects strengthening each other. Therefore, based on maqasid al-shariah, the examination of children born out of wedlock should regard international, national as well as Islamic law. The examination also regards various aspects for instances: justice, welfare, psychology, and social status of the children and their mothers. These multi-dimensions of life were employed in issuing the legal decree concerning with the children born out of wedlock. The results from this study show that first, the reason behind orthodox s of Islamic law not to associate the lineage of children born out of wedlock towards their biological father is that they lacked evidence as those of their mothers such as pregnancy, birthing, and suckling. Second, based on the constitutional decree, the lineage of children born out of wedlock should be established toward their father, and the children should enjoy the rights towards their fathers to the extent that the legitimate children did. They also have the right of inheritance towards not only their mothers but also their biological fathers as well as their parents’ families.

Copyright

© 2018, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Zaenul Mahmudi
PY  - 2018/07
DA  - 2018/07
TI  - The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah
BT  - Proceedings of the 1st International Conference on Indonesian Legal Studies (ICILS 2018)
PB  - Atlantis Press
SP  - 113
EP  - 117
SN  - 2352-5398
UR  - https://doi.org/10.2991/icils-18.2018.21
DO  - 10.2991/icils-18.2018.21
ID  - Mahmudi2018/07
ER  -