LEGAL STATUS AND RIGHTS OF THE CHILD OUTSIDE MARRIAGE BY ISLAMIC LEGAL COMPILATION

God has created man in pairs, so that their offspring like other creatures. In the offspring of God has made the regulations in accordance with human dignity as God's most precious creature, through marriage, but people often commit offense that did the relationship between men and women outside marriage.

In Indonesian society applicable regulations or laws vary, but in this case the authors take or focus on Islamic law in determining how the legal status of children born out of the provisions of the law.

In Islamic Law Compilation described on criteria other than legitimate children (children born in lawful wedlock), as provided for in Article 99 Compilation of Islamic Law, which states that a legitimate child is :

• Children who were born in or due to legal marriage;
• Husband and wife are fertilized outside the womb and be born by the wife.

Additionally Also known children born outside of marriage are legitimate, as listed in Article 100 Compilation of Islamic Law that "children born outside marriage has only nasab relationship with his mother and his mother's family".

Therefore, to bring the definition of "child outside marriage" will be described approach is based on the terminology contained in the book of 'fiqh', combined with the provisions governing the status of children listed in the articles of Law No. 1 of 1974 and the Compilation of Islamic Law.

According to the scholars, natural child as a child born as a result of conjugal relationship that is not valid. Conjugal relationship unauthorized referred to is intercourse ('coitus / Wahti') between two people who are not tied the knot that meet the elements of harmony and marriage predetermined conditions. In addition, conjugal relationship unauthorized may occur on the basis of consensual or rape, whether committed by people who are married or unmarried.

Although the term "bastard" is a popular term and inherent in the life of society, but the compilation of Islamic law does not adopt the term to serve as special terms therein. It is intended that the "child" as a result of the relationship of adultery, not targeted social punishment, public censure, and so forth, with a strap on big sin (adultery) biological mother and natural father (genetic) the child to him, as well as to show the Islamic identity is not recognize the existence of original sin.

In Islamic Law Compilation sentence has meaning "bastard" as the definition set forth by the above scholars, is "a child born outside of legal marriage" as contained in Article 100 Compilation of Islamic Law, which states that "a child born in outside marriage only have nasab relationship with his mother and his mother's family". To convey with these provisions, Article 186 Compilation of Islamic Law states : "children born outside marriage has just inherited mutual relationship with his mother and the family of the mother".

Thus in line with Article 43 paragraph (1) of Law No. 1 of 1974 the same formulation with Article 100 of KHI, is: "a child born out of wedlock only have nasab relationship with his mother and his mother's family". Which includes children born outside of marriage are :

1. Children born to women who did not have a valid marriage bond with the men who impregnate;
2. Children born to women whose pregnancies due to rape by one man or more;
3. Children born to women who in Jinhuang (denied) by her husband;
4. Children born to women who are pregnant as a result of the (wrong) suspected her husband was not;
5. Children born to women who are pregnant as a result of such marriages are forbidden to marry with siblings or sepersusuan;

Figures 4 and 5 above in Islamic law called 'Subhat' that if the child is recognized by the father subhatnya, nasabnya can be connected to it.

Rights and Legal Status

If a child has been condemned as a child born outside marriage, as mentioned above, there are several legal effects concerning the rights and obligations between the child, the mother who gave birth and the father / father of the natural (genetic), namely :

1. Nasab relationship, Article 100 Compilation of Islamic Law as pointed out, it is stated that children born outside marriage has only nasab relationship with his mother and her family alone. It thus legally the child can not be attributed entirely to the father / father natural, although the real father / father natural (genetic) is a man who impregnates a woman who gave birth to it. Although at first glance looks inhuman and unbalanced between the burden placed on the shoulders of the mother alone, without reference to the man who became the genetic father of the child, but such provisions upheld rated sublime institution of marriage, while avoiding pencenaran against the institution of marriage;
2. Living, therefore the child status under the law just have nasab relationship with his mother and her family alone, then that must provide a living child is his mother and her family alone. As for the father / father natural (genetic), even though the child is biologically a child from his sperm, but are nominally as the purpose of Article 100 Compilation of Islamic Law above, do not have a legal obligation to provide maintenance to the child. It is different from the legitimate child. Legitimate child, the father shall provide a living and living a decent living as health, education and so on to their children, according to his income, as provided for in Article 80 paragraph (4) Compilation of Islamic Law, in the case of the father and mother are still tied the knot . If the child's father and mother were divorced, the father remains charged to provide for his children according to his ability, as the purpose of Article 105 (c) and Article 156 letter (d) Compilation of Islamic Law. Although in public life there is also a natural father / genetic provide a living to children is so, then it is basically just human nature, not an obligation imposed liability law as a legitimate father of the child. Therefore legally the child is not entitled to demand a living from the father / father natural (genetic);
3. Inheritance Rights, As a further result of the relationship nasab as proposed, then the child has only heir-inherited relationship with his mother and her family alone, as defined in Article 186 Compilation of Islamic Law: "children born outside marriage has just inherited a mutual relationship with his mother and his family from his mother's side ". Thus, the child is not legally have inherited a mutual legal relationship with the father / father natural (genetic);
4. Rights Trust, If in the case that a child born as a result from recent fornication (outside of marriage) is apparently a woman, and as an adult the child will get married, then the father / father natural (genetic) no right or unauthorized become guardian illegitimate, as provisions of guardians in Article 19 Compilation of Islamic Law :

• Marriage guardian in marriage is a pillar that must be met for the bride who act to marry her;

• Which acts as the guardian of marriage is a man who qualify Islamic law that Muslims, Aqeel and baligh.

Provisions of the same law as the law against child out of wedlock, as well as all the legal status of children born outside of legal marriage as mentioned above.

Conclusion

Compilation of Islamic Law does not recognize the term "bastard" but the term "children born outside of marriage" whose status is the same as the child of a conjugal relationship between men and women are not tied rope valid marriage, which includes children born of woman who do not have a valid marriage bond with the man who got her, or child doubtful unless recognized by the father syubhatnya.

Children born outside of marriage or as a result of conjugal relationship that is not valid, only have nasab relationships, rights and obligations of living as well as the rights and inheritance relationship with his mother and her family alone, not with the father / father natural (genetic) as well as the father / father natural (genetic), if the child happened to the girls.

If a child born outside of marriage is female and about to be married, the guardian of marriage in question is Guardian Judge, because it includes groups that do not have a guardian nasab.