The position of the legitimate child in KHI and KUHPER

Oct 13, 2025 by wbrum.org 63 views

Analysis of Comparison of the Position of Legitimate Children and Outside Children Marriage in terms of the Compilation of Islamic Law (KHI) and the Civil Code

Discussion Category

Undergraduate Theses
Education
Journal
Thesis
University
Student
Campus

Additional Information

Differences in the position of legitimate children and external marriages: Overview of KHI and KUHPER

The position of legitimate children and children from marriage has become an interesting topic to study, especially in the legal context in Indonesia. This study examines these differences based on two main sources of law, namely the Compilation of Islamic Law (KHI) and the Civil Code (KUHPER). This article also discusses the implications of the Decision of the Constitutional Court (MK) Number 46/PUU-VIII/2010 to the position of children outside of marriage.

The position of the legitimate child in KHI and KUHPER

In KHI, the position of the legitimate child is clearly explained, emphasizing the child's relationship with his parents. This relationship includes aspects of nasab, obligations, and rights arising from marriage bonds. On the other hand, the Criminal Code only focuses on the child's relationship with the father, not explicitly discussing the relationship with the mother. This difference reflects differences in philosophy and legal system that underlies the two legal sources.

The KHI emphasizes the importance of the child's relationship with both parents, while the KUHPER only focuses on the child's relationship with the father. This difference in approach highlights the distinct philosophical underpinnings of the two legal systems. The KHI is based on Islamic law, which emphasizes the importance of family relationships and the obligations that arise from them. In contrast, the KUHPER is based on Western legal principles, which prioritize individual rights and freedoms.

The KHI's emphasis on the child's relationship with both parents is reflected in its provisions regarding nasab, which is the term used to describe the child's relationship with their parents. The KHI states that the child has a nasab relationship with both their mother and father, and that this relationship gives rise to certain obligations and rights. In contrast, the KUHPER only recognizes the child's relationship with their father, and does not explicitly discuss the child's relationship with their mother.

The position of the child outside the marriage in KHI and KUHPER

KHI stated that the child outside marriage only had a nasab relationship with his mother. This means that the child has no legal relationship with his father. Meanwhile, the Criminal Code does not discuss the relationship between nasab and civil between children outside marriage and both parents. This shows the obscurity of the law and inequality in legal protection for children outside of marriage in the Criminal Code.

The KHI's provisions regarding children outside of marriage are also noteworthy. The KHI states that a child born outside of marriage only has a nasab relationship with their mother, and that this relationship gives rise to certain obligations and rights. However, the KHI does not explicitly discuss the child's relationship with their father, and does not provide for any mechanism by which the child can establish a legal relationship with their father.

In contrast, the KUHPER does not provide any clear provisions regarding children outside of marriage. The KUHPER only recognizes the child's relationship with their father, and does not explicitly discuss the child's relationship with their mother. This lack of clarity and consistency in the law has led to confusion and inequality in the treatment of children outside of marriage.

The rights of children outside of marriage

KHI only gave access rights to children outside marriage through his mother and his mother's family. Whereas the Criminal Code, although it does not explicitly recognize the relationship of Nasab, opens up opportunities for children outside of marriage to get the rights of both parents through recognition. However, this recognition still requires a complicated and vulnerable process of abuse.

The KHI's provisions regarding the rights of children outside of marriage are also limited. The KHI only provides for the child's access rights through their mother and her family, and does not explicitly discuss the child's rights to establish a legal relationship with their father. In contrast, the KUHPER provides for the child's rights to establish a legal relationship with their father, but does not explicitly discuss the child's rights to access their mother's family.

Implications of MK Decision Number 46/PUU-VIII/2010

Before the decision of the Constitutional Court Number 46/PUU-VIII/2010, there was a significant disparity between the position of the legitimate child and outside marriage. This Constitutional Court's decision brings a breath of fresh air by stipulating that the child outside the marriage has the right to get recognition as a legitimate child if proven through DNA tests or other scientific evidence. This opens opportunities for children outside of marriage to get the same rights as legitimate children.

The MK Decision Number 46/PUU-VIII/2010 has significant implications for the position of children outside of marriage in Indonesia. The decision recognizes the child's right to establish a legal relationship with their father, and provides for a mechanism by which the child can prove their paternity through DNA tests or other scientific evidence. This decision has the potential to bring about significant changes in the treatment of children outside of marriage, and to promote greater equality and justice for all children.

CONCLUSIONS AND RECOMMENDATIONS

Differences in the position of the legitimate children and children from marriage in Indonesia show a legal gap that needs to be immediately overcome. Constitutional Court Decision Number 46/PUU-VIII/2010 is an important step in bridging the gap. However, its implementation still needs to be guarded to ensure the achievement of equality of rights for all children, regardless of their birth status.

The differences in the position of legitimate children and children from marriage in Indonesia highlight the need for greater clarity and consistency in the law. The KHI and KUHPER provide for different approaches to the treatment of children outside of marriage, and this has led to confusion and inequality in the treatment of these children.

The MK Decision Number 46/PUU-VIII/2010 is an important step in promoting greater equality and justice for all children. However, its implementation still needs to be guarded to ensure that the rights of all children are protected and promoted.

Importance of Child Protection Bill

The existence of the Child Protection Bill that is being discussed in the DPR is expected to provide a stronger and comprehensive legal umbrella in protecting the rights of children, both legitimate children and outside marriages. This bill is expected to accommodate the needs and rights of special children outside of marriage, as well as clarify the mechanism of recognition of children outside of marriage legally.

Final notes

Differences in the position of the legitimate child and outside marriage are complex issues that require serious attention. Efforts to realize justice and equality for all children need to be carried out on an ongoing basis through the revision of laws and regulations, community education, and strengthening the child protection institution.

The Child Protection Bill has the potential to bring about significant changes in the treatment of children outside of marriage in Indonesia. The bill is expected to provide a stronger and more comprehensive legal framework for the protection of children's rights, and to promote greater equality and justice for all children.
Q&A: Analysis of Comparison of the Position of Legitimate Children and Outside Children Marriage in terms of the Compilation of Islamic Law (KHI) and the Civil Code

Frequently Asked Questions

Q: What is the main difference between the position of legitimate children and children from marriage in Indonesia?

A: The main difference lies in the legal framework that governs their rights and relationships. Legitimate children are recognized as having a nasab relationship with both their parents, while children from marriage are only recognized as having a nasab relationship with their mother.

Q: What is the significance of the MK Decision Number 46/PUU-VIII/2010?

A: The MK Decision Number 46/PUU-VIII/2010 is a landmark decision that recognizes the child's right to establish a legal relationship with their father, and provides for a mechanism by which the child can prove their paternity through DNA tests or other scientific evidence.

Q: How does the Child Protection Bill address the differences in the position of legitimate children and children from marriage?

A: The Child Protection Bill is expected to provide a stronger and more comprehensive legal framework for the protection of children's rights, and to promote greater equality and justice for all children. It is expected to accommodate the needs and rights of special children outside of marriage, as well as clarify the mechanism of recognition of children outside of marriage legally.

Q: What are the implications of the differences in the position of legitimate children and children from marriage for the child protection institution?

A: The differences in the position of legitimate children and children from marriage highlight the need for greater clarity and consistency in the law. The child protection institution needs to be strengthened to ensure that the rights of all children are protected and promoted.

Q: How can the community contribute to promoting greater equality and justice for all children?

A: The community can contribute by raising awareness about the importance of child protection and the need for greater equality and justice for all children. They can also support efforts to revise laws and regulations that are discriminatory or unequal.

Q: What are the next steps in implementing the MK Decision Number 46/PUU-VIII/2010 and the Child Protection Bill?

A: The next steps involve ensuring that the MK Decision Number 46/PUU-VIII/2010 is implemented effectively, and that the Child Protection Bill is passed into law. This will require ongoing efforts to raise awareness and promote greater equality and justice for all children.

Q: How can individuals access the rights and benefits provided by the MK Decision Number 46/PUU-VIII/2010 and the Child Protection Bill?

A: Individuals can access the rights and benefits provided by the MK Decision Number 46/PUU-VIII/2010 and the Child Protection Bill by seeking assistance from the child protection institution or a qualified lawyer. They can also contact the relevant government agencies or organizations that provide support and services to children and families.

Q: What are the potential consequences of not addressing the differences in the position of legitimate children and children from marriage?

A: The potential consequences include continued inequality and injustice for children outside of marriage, and a lack of protection and support for these children. This can have long-term effects on their well-being and development, and can perpetuate cycles of poverty and disadvantage.

Q: How can the government ensure that the rights of all children are protected and promoted?

A: The government can ensure that the rights of all children are protected and promoted by implementing effective policies and programs that address the differences in the position of legitimate children and children from marriage. This includes revising laws and regulations, providing support and services to children and families, and promoting greater awareness and understanding of the importance of child protection.