ENHANCING RELIGIOUS COURT’S ROLE IN CHILD RIGHTS PROTECTION THROUGH CHILD ACKNOWLEDGMENT

Muhamad Isna Wahyudi*)

Religious court jurisdiction on acknowledgement of child is formulated under term “penetapan asal usul anak” or “decision on child parentage,” as stipulated in the Elucidation of Article 49 (2) number 20 of Law No. 7/1989 on Religious Judicature. Such formulation seems to imply a different jurisdiction to that of general court including legitimation and acknowledgment of child born prior to the marriage (premarital child). The court decision on child parentage is required in case the absence of birth certificate or other evidences as the evidence of child parentage, as stipulated in Article 103 of Compilation of Islamic Law.

However, the absence of birth certificate is closely related to civil registry to register a child as a legitimate child. Legitimate child will be registered as a child of a father and a mother, while illegitimate child will be registered as a child of a mother. Article 42 (1) of Law No. 1/1974 on Marriage defines a legitimate child as a child born in, or resulting from a valid marriage. In this case, for Muslim couples who want to have their child born out of wedlock, including child born prior to the marriage or child born into unregistered marriage, registered as child of both father and mother, they may file petition for child parentage to religious court. At this point, what the couples seek is substantively related to acknowledgment of child, despite the term “penetapan asal usul anak,” used in the jurisdiction of religious court.

Acknowledgment of child is regulated in Law No. 24/2013 on Amendment of Law No. 23/2006 on Civil Administration. Article 49 (2) of the Law stipulates that acknowledgment of child prevails only for child whose parents have conducted unregistered marriage that valid according to religious law. Such provision is derived from the legal consensus including Islamic law, customary law, and 1848 Civil Code that acknowledgment of child is prohibited for child resulting from adultery in which the mother is still bond in marriage relationship with other person so that she cannot marry her spouse. However, such regulation has resulted in reducing the rights of child born prior to the marriage although the mother is not a married woman so that the child cannot be legitimized through acknowledgment of the father.

In Islamic jurisprudence, acknowledgment or istilhaq is another way to establish blood relationship (nasab) between a child and father besides marriage, that implies the legitimation of the child. Legitimation of child, in turn, is the result of acknowledgment of the child, so that there is no legitimation of child in Islamic law. However, there is difference of view among classical Islamic scholars in terms of acknowledgment of child resulting from adultery. Majority of classical Islamic scholar views that the child’s lineage cannot be related to the father, either the child born in wedlock or out of wedlock. On the contrary, according to Ishaq bin Rahawaih, Urwah bin Zubair, Sulaiman bin Yasar, Muhammad bin Sirin, Atha, Ibn Taimiyya, and Ibn Qoyyim, if the child born out of wedlock and the mother’s spouse – who commits adultery with the  mother - claims the child, the child’s lineage can be related to him, as long as the mother is not a married woman.

In legal practice at religious court, most of child parentage cases resulting from Muslim couples whose child born in unregistered marriage that cannot be validated by the judges through itsbat nikah procedure, including defective marriage (nikah fasid), unregistered polygamous marriage, and underage marriage. Those Muslim couples have to remarry in order to have marriage certificate after the birth of their child. In this case, the civil registry declines to register the child as legitimate child due to the birth of the child prior to the registered marriage of the parents. Acknowledgment also restricted to laqit or the foundling who has no definite parent (Mahkamah Agung RI, Direktorat Jenderal Badan Peradilan Agama, Pedoman Pelaksanaan Tugas dan Administrasi Peradilan Agama Buku II, 2013).

However, there was one case from Sleman Religious Court in 2006 that related to acknowledgment of child born out of wedlock (Judgment number 408/Pdt.G/2006/PA.Smn, 27 July 2006). The court granted the petition of child acknowledgment filed by a husband by ordering that the child born out of wedlock as legitimate child of the husband and his wife based on the acknowledgment of the husband. Before getting married, the husband and his wife lived together and had sexual intercourse until the wife gave birth a male baby out of wedlock. The court considered that the Kompilasi Hukum Islam did not regulate child acknowledgment, but the Kompilasi Hukum Islam regulated the marriage of pregnant woman with the man whom she had sexual intercourse with in Article 53. The court interpreted that the purpose of Article 53 was in order to protect and maintain the child’s interests when the child’s process of growth had occurred since the parents had not been married. The judge also referred to the legal maxim “law follows the eminent utility (al-hukm yattabi’u’l-maŝlahat ar –rājiĥah),” and Article 3 Law No. 23/2002 on Child Protection.

As another way in establishing child-father blood relationship (nasab), acknowledgment of child is necessary for child rights protection. The status of child can be improved from illegitimate child to legitimate child through acknowledgment. The status of child constitutes foundation for the rights of child. The status of child has resulted in different fulfillment of child rights. The legitimate child has full rights including inheritance, maintenance, custody, and guardianship, while illegitimate child has limited rights, including right to financial support and right to know and be brought up by biological parents. Biological parent is a relatively new term accepted in legal practice at religious court after the Constitutional Court decision on the status of child born out of wedlock, despite such term is not applied by civil registry to register child status.

*) The author is chief judge at Banyumas Religious Court, Central Java.