Al-Qadha: Jurnal Hukum Islam dan Perundang-Undangan
Vol. 10, No. 2, Desember 2023,(147-160)
https://doi.org/10.32505/qadha.v10i2.7068.
https://journal.iainlangsa.ac.id/index.
p-ISSN 2356-1637 | e-ISSN 2581-0103

Protection of the Rights of Adultery Children in Indonesia: A
Perspective of Positive and Islamic Law
Iffah Fathiah1*, Sofyan Mei Utama2, Diana Farid3, Muhammad Husni Abdulah Pakarti4,
Kemal Al Kautsar Mabruri5, Hendriana6
1, 4, 6Universitas Muhammadiyah Bandung, Indonesia
2Sekolah Tinggi Hukum Bandung, Indonesia
3 STAI Darul Arqam Muhammadiyah Garut, Indonesia
5Universitas Islam Indonesia, Indonesia
email: iffah.fathiahs@umbandung.ac.id
*Corresponding Author
Submitted: Sep 24, 2023

Accepted: Nov 1, 2023

Published: Dec 2, 2023

How to Cite (Chicago): Iffah Fathiah, Sofyan Mei Utama, Diana Farid, Muhammad Husni Abdulah Pakarti,
Kemal Al Kautsar Mabruri, and Hendriana Hendriana. 2023. “Protection of the Rights of Adultery Children in
Indonesia: A Perspective of Positive and Islamic Law”. Al-Qadha : Jurnal Hukum Islam Dan Perundang-Undangan
10 (2). https://doi.org/10.32505/qadha.v10i2.7068.

Abstract
The phenomenon of parents abandoning their children due to adultery is quite common
these days. In the marriage legal system in Indonesia, children born outside a legal marriage
cannot be recognized as legitimate children, so their civil aspects follow those of their
mother. Children resulting from adultery lose some of their rights as children of a father, and
this has the potential to disrupt their future. This research aims to analyze the rights of
children resulting from adultery and whether there are solutions that can be taken so that
children resulting from adultery still receive their rights even without a cross-breed
relationship with their biological father. The research method used is a library research with
a sociological-legal approach. Data sources were obtained from the law and several
important articles related to this research problem. Apart from that, this article also uses the
results of empirical research to strengthen the arguments in this research. Based on the
research results, it was found that, from various studies, there is often a neglect of children's
rights as a result of adulterous relationships. Men tend to leave their partners, and in the
end, women often become single parents to meet the child's needs. Legally, the state can
punish the adulterer (biological father) for being responsible for the needs of the child
resulting from his adultery.
Keywords: Adultery Children, Protection of children's rights, Islamic law, Positive law
Abstrak
Dewasa ini banyak temuan kasus anak yang ditelantarkan oleh orang tuanya karena hasil
perzinahan. Dalam sistem hukum perkawinan di Indonesia, anak yang lahir diluar
perkawinan yang sah tidak dapat diakui sebagai anak sah, sehingga aspek keperdataannya
mengikuti ibunya. Anak hasil zina kehilangan sebagian haknya sebagai anak dari seorang
ayah dan ini berpotensi mengganggu masa depannya. Penelitian ini bertujuan untuk
Creative Commons Attribution-Noncommercial 4.0 International
(CC BY-NC 4.0)

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Protection of the Rights of Adultery Children...

menganalisis hak anak hasil zina, dan adakah solusi yang dapat ditempuh agar anak hasil
zina tetap mendapat haknya meski tanpa hubungan nasab dengan ayah biologisnya. Metode
penelitian yang digunakan adalah studi kepustakaan (library research) dengan pendekatan
yuridis sosiologis. Sumber data diperoleh dari Undang-Undang, beberapa artikel penting
yang berkaitan dengan permasalahan penelitian ini. Selain itu, artikel ini juga menggunakan
hasil penelitian empiris untuk memperkuat argumentasi dalam penelitian ini. Berdasarkan
hasil penelitian diperoleh bahwa dari berbagai penelitian sering terjadi pengabaian hak anak
dari hasil hubungan perzinahan. Para pria cenderung meninggalkan pasangannya dan pada
akhirnya para wanita kerap sekali menjadi orang tua tunggal dalam memenuhi kebutuhan
anak tersebut. Secara hukum, negara dapat menghukum pelaku pezina (ayah biologis)
untuk bertanggung jawab terhadap kebutuhan anak hasil zinanya.
Kata Kunci: Anak Hasil Zina, Perlindungan Hak Anak Hukum Islam, Hukum Positif
Introduction
A child is a gift and a trust from Allah SWT. to parents who must be cared for and nurtured
correctly. God's destiny does not allow a child to choose to be born from the womb he
wants. 1 When a child is taken from an extramarital relationship, he remains pure and
innocent. There is no difference between a child born out of wedlock and one born out of
wedlock. Both are legal subjects whose rights must be protected by the state. 2 Children
cannot accept sanctions for actions or mistakes committed by their parents. Islam teaches
that every child is born in a holy condition, as the Prophet said:
“Abu Hurairah (r) said that the Prophet (peace be upon him) said: "Not every child is born
except in a state of purity. It is his parents who will make him Jewish, Christian, or idolatrous"
(HR. Muslim).3
However, the sins and violations of religious norms committed by his parents that
caused him to be born into the world will always be carried and attached to him. The Law
protects against the possibility of discrimination in society against extramarital children with
the issuance of Article 28 B paragraphs (1) and (2) of the 1945 Constitution of the Republic of
Indonesia which reads: Everyone has the right to form a family and continue offspring
through legal Marriage and every child has the right to survival, growth and development
and the right to protection from violence and discrimination; As well as article 28 D
paragraph (1) of the Constitution of the Republic of Indonesia Year 1945 which reads:
Everyone has the right to recognition, guarantee, protection and fair legal certainty and equal
treatment before the Law.4
Based on Article 52 paragraph (2) of the Presidential Regulation of the Republic of
Indonesia Number 25 of 2008 concerning Requirements and Procedures for Population
Registration and Civil Registration, reporting of the birth of children who are not
accompanied by a marriage book will still be accepted. Birth registration will still be carried
out, meaning that extramarital children do not have problems with birth certificates. So far,

Adian Husaini, Stoning in the Flow of Shahwat Culture Application of Sharia Law in Indonesia in
Review of Islamic Sharia, Positive Law and Global Politics (Jakarta: CV. Pustaka al-Kautsar, 2001),
95
2 Rofiq Ahmad, Hukum Islam Di Indonesia (Jakarta: PT Raja Grafindo Persada, 1997), 107
3
Ibn Hajar Atsqalani, Hadith Bulughlul Maram (Cimahi: CV. Gema Risalah Press:, 2008), 430
4
Muhazir Muhazir, “Dualisme Peraturan Perceraian di Aceh: Kontestasi Fatwa dan Hukum
Negara,” Al-Ahwal: Jurnal Hukum Keluarga Islam 13, no. 2 (December 28, 2020): 198–208,
https://doi.org/10.14421/ahwal.2020.13208.
1

148

the rights of extramarital children related to state administration have been fulfilled. But in
some cases, there are rights of children who are deprived of themselves because they5 are
born from a wrong act against religious norms and laws committed by their parents, not at
all the result of evil acts committed against them.6 The deprived right is the severance of civil
relations with his biological father. The regulations governing this matter include:
1. Article 43 paragraph (1) of Law Number 1 of 1974 concerning Marriage: "A child
born out of wedlock only has a civil relationship with his mother and his mother's
family";
2. Article 100 of the Compilation of Islamic Law (KHI): "A child born out of wedlock
has only sexual relations with his mother and his mother's family" and
3. Article 186 of the Compilation of Islamic Law (KHI): "A child born out of wedlock
has only a relationship of inheritance with his mother and his mother's family
only".
In addition to the Marriage Law and the Compilation of Islamic Law, four school
scholars agree that the Marriage of an extramarital child with a man who impregnates his
mother is severed. As a result, they cannot inherit each other, and if the extramarital child
born is a girl, then the man cannot be the marital guardian of the daughter. Even followers of
the Shafi'I School argue that if the fate of an extramarital child against his father is severed,
then the child's status is as an Ajnabiyyah (foreigner). Therefore, the child may be married to
his biological father and is not a mahram for his biological father.7
In contrast to the view of the Marriage Law, the Compilation of Islamic Law and
scholars of the four schools of thought, the Constitutional Court Decision Number 46 / PUUVIII / 2010 states in one of its rulings that Article 43 paragraph (1) of Law Number 1 of 1974
concerning Marriage which states, "A child born out of wedlock only has a civil relationship
with his mother and his mother's family", has no binding legal force as long as it is
interpreted to eliminate civil relations with 8 a man who can be proven based on science and
technology and other evidence according to Law turns out to have a blood relationship as his
father, so the paragraph must read, "A child born out of wedlock has a civil relationship
with his mother and his mother's family and with a man as his father who can be proven
based on science and technology and other evidence according to law to have a blood
relationship, including civil relations with his father's family".9
In addition to the two views above, another view is MUI decision Number 11 of 2012
concerning the Position of Children Resulting from Zina and their Treatment of Him. The
content of the judgment, as stated in the JUDGMENT section on page 9 of the final decision,
5 Naskur Bilalu et al., “Compilation of Islamic Law as Judge’s Consideration at a Religious Court in
North
Sulawesi,
Indonesia,”
Samarah
6,
no.
2
(2022):
514–36,
https://doi.org/10.22373/sjhk.v6i2.12441.
6 Diana Farid et al., “Interfaith Marriage: Subjectivity of the Judge in Determination of No.
454/Pdt.p/2018 Surakarta District Court,” Al-Istinbath: Jurnal Hukum Islam 7, no. 2 (2022): 347–
62, https://doi.org/10.29240/jhi.v7i2.4574.
7
Dwi Arini Zubaidah, “Childfree Marriage in the Perspective of Maqashid Asy-Syari’ah,” Al-Qadha :
Jurnal Hukum Islam Dan Perundang-Undangan 10, no. 1 (June 13, 2023): 79–93,
https://doi.org/10.32505/qadha.v10i1.5852.
8 Halimah Basri et al., “Inheritance Rights of Women in Makassar Society: A Study of Living Qur’an
and Its Implications for Islamic Law,” Samarah: Jurnal Hukum Keluarga Dan Hukum Islam 6, no.
2 (2022): 537, https://doi.org/10.22373/sjhk.v6i2.13882.
9
Diana Farid et al., “Peran Kanal Online Dalam Edukasi Pranikah,” FASTABIQ: JURNAL STUDI
ISLAM 3, no. 2 (June 22, 2022): 81–93, https://doi.org/10.47281/fas.v3i2.119.

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Protection of the Rights of Adultery Children...

was aimed at protecting the child, not to legalize the sexual relationship between an
extramarital child and a man that resulted in his birth.10
Research written by Riri Wulandari with the title Status of Children Outside of
Wedlock Perspectives of the Hanafi School and the Shafi'I School explains that the Hanafi
School's opinion regarding extramarital children is children born less than six months after
the marriage contract. Nasab son remains Thabit against his biological father, because in
essence the child is his child. A child is called the son of his father because the child is born
from the semen of his father, therefore it is forbidden for the biological father to marry his
extramarital child. The nasab according to the view of shari'a is disconnected, which has
implications for the loss of obligations for biological fathers to fulfill children's rights, such as
bread, inheritance, and guardianship. The Shafi'I School has a different opinion from the
Hanafi School regarding extramarital children or adulterous children. In the Shafi'I School,
an extramarital child is a child born less than six months after intercourse with a legal
husband. Followers of the Shafi'I School hold that the fate of an extramarital child against his
father is severed, hence the status of the child is as an Ajnabiyyah (foreigner). Therefore, the
child may be married by his biological father, and is not a mahram for his biological father.11
In addition, research written by Rinanti Elfrida entitled "Protection of Zina Children
According to the Perspective of Islamic Law and Positive Law" explains that the protection
of adulterous children according to positive law and Islamic law is a positive law regulating
child protection at the conventional level, such as children's rights and obligations, child
maintenance (alimentation) by parents, recognition of children, legalization of children, and
others. Then Islamic law does not address the issue of protection of children resulting from
adultery which says that children resulting from adultery only have a relationship with their
mother, including in terms of protection. Then in this thesis also explains the similarities and
differences in the protection of children's rights resulting from adultery.12 The equality in
Islamic law and positive law is that adulterous children have rights from their parents,
namely parental power rights, child maintenance and education rights, inheritance rights,
and family name rights. While the difference lies in the civil relationship of the adulterous
child. Islamic law holds that an adulterous child has a civil relationship with his mother and
his mother's side of the family, and positive law holds that an adulterous child has a civil
relationship with his mother and his mother's family, and his biological father that can be
proven by evidence according to applicable law.13
Looking at several previous studies, the discussion in this study focuses more on the
rights of children born outside of legal marriage in terms of social, not to connect the child's
fate to his biological father and the efforts and strategies that may be carried out by positive
law so that society, especially men, still have responsibility for what they have done so that
10 Adelina Nasution, Pagar Pagar, and Asmuni Asmuni, “The Disparity Of Judge’s Verdict On Child
Custody Decision In Aceh Sharia Court,” Samarah: Jurnal Hukum Keluarga Dan Hukum Islam 6,
no. 2 (2022): 890, https://doi.org/10.22373/sjhk.v6i2.12758.
11 Riri Wulandari, “Status Nasab Anak Di Luar Nikah Perspektif Mazhab Hanafi Dan Mazhab Syafi’i
Dan Implikasinya Terhadap Hak-Hak Anak” (Undergraduate, Lampung, UIN Raden Intan
Lampung, 2018), 66
12 Jakobus Anakletus Rahajaan and Sarifa Niapele, “Dinamika Hukum Perlindungan Anak Luar
Nikah Di Indonesia,” PUBLIC POLICY (Jurnal Aplikasi Kebijakan Publik & Bisnis) 2, no. 2 (2021):
258–77, https://doi.org/10.51135/publicpolicy.v2.i2.p258-277.
13 Rinanti Elfrida, “Perlindungan Anak Zina Menurut Perspektif Hukum Islam Dan Hukum Positif”
(Undergraduate, Lampung, UIN Raden Intan Lampung, 2017), 67

150

the rights of children born out of adultery get what they should they get. If other people's
studies discuss the position of extramarital children, then this research is about protecting
the rights of children born out of wedlock in Indonesia.
Seeing the many different views on children's rights, researchers are interested in
researching the problem of children outside Marriage by focusing on " Protection of the
Rights of Adultery Children in Indonesia (Perspectives of Islamic Law and Positive Law)".14
The research method used is a library research with a sociological-legal approach.15
Data sources were obtained from the law and several important articles related to this
research problem. Apart from that, this article also uses the results of empirical research to
strengthen the arguments in this research. Several laws pertaining to Islamic law, human
rights, and child protection are all examined in this research study. This is done to assess the
degree to which the rights of children born outside of marriage are protected by these
legislation.
Children's Rights in the Perspective of Islamic Law and Positive Law
According to the language, Islamic Law is shari'a, which means the path humanity takes to
lead to Allah SWT. According to the term, these are the laws commanded by Allah SWT for
His people brought by a Prophet, both those related to belief (aqidah) and deeds ('aliyah). 16
Islam is not a religion that only teaches how to worship its God (worship). In addition, Islam
exists to regulate human relations with others (Ramallah).17 The rule is based on the Quran
and Hadith. Islamic Law is not just a theory; more than that, Islamic Law is a rule to be
applied in the joints of human life. Because many new problems are encountered, in the end,
the thinking of Muslims tends to be different in understanding a situation. The birth of Sunni
jurisprudence evidences this or can also be called the four schools of jurisprudence. The
same thing happened in Indonesia. The Muslims in Indonesia eventually made an ijtihad.
The results of ijtihad include:
1. Compilation of Islamic Law (KHI);
2. Fatwa of the Indonesian Ulema Council (MUI).
Positive Law is a law made by man that obliges or establishes an action. In Indonesia,
positive Law is divided into private (civil) and public (criminal). Positive legal forms in
Indonesia include:
1. Law Number 1 of 1974 concerning Marriage;
2. Law Number 35 of 2014 concerning amendments to Law Number 23 of 2002
concerning Child Protection;
3. Constitutional Court Decision Number 46/PUU-VIII/2010;
4. And so on.
Apart from being a source of happiness and cooling, children are gifts and trust Allah
SWT gives to parents. Every parent wants a good and righteous offspring, both personal,
intelligent, and valuable; his presence always has a positive impact and is devoted to both
parents. Thus, parents must educate their offspring responsibly because the child's future
14 Wahidah Ideham, “Substitute Heirs in the Compilation of Islamic Law: An Overview from Gender
Equality Perspective Case Study of the Religious Courts in Banjarmasin,” Samarah 6, no. 2 (2022):
1046–64, https://doi.org/10.22373/sjhk.v6i2.12466.
15 Emmanuel Melissaris, “The More the Merrier? A New Take on Legal Pluralism,” Social & Legal
Studies 13, no. 1 (March 2004): 57–79, https://doi.org/10.1177/0964663904040192.
16 Yusmalinda Yusmalinda et al., “Islam Dan Sosial Kontrol: Menelisik Penerapan Syariat Islam Di
Aceh,” Jurnal El-Qanuniy: Jurnal Ilmu-Ilmu Kesyariahan Dan Pranata Sosial 9, no. 1 (July 6, 2023): 145–
61, https://doi.org/10.24952/el-qanuniy.v9i1.7711.
17 Ibnu Rusyd, Bidayatul Mujtahid wa Nihayatul Muqtashid (Beirut: Dar Al-Kutub Al-Islamy, 1988), 433

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Protection of the Rights of Adultery Children...

depends very much on the parenting and education provided by parents. This is following
the following word of God:

ْ ‫اَي َأُّيه اا ذ ِاَّل اين أ امنُوا قُوا َأنْ ُف اس ُْك او َأ ْه ِل‬
َ‫و‬
‫وَ ذ ا‬
‫وَ اما يُ ْْ ام َُ ا‬
‫اَّل اما َأ ام اَ ُ ُْ اوي ا ْف اْعلُ ا‬
‫يُك َنا ًرا اوقُو ُدهاا النذ ُاس اوالْ ِح اج اار ُة عالاْيْ اا ام اَلئِ اك ٌة ِغ اَل ٌظ ِشدا ا ٌد اَل ي اْع ُُ ا‬

"O men of faith, preserve yourselves and your families from the fires of hell whose fuel is man
and stone; his guardians Angels who were harsh, hard, and disobeyed God not what he
commanded them, and always did what he commanded." (QS At-Tahrim: 6)

Ibn Kathir, in his tafsir, says that the purpose of preserving yourself and your family
from hellfire is education that leads to a form of obedience to Allah SWT and is an invitation
always to carry out all His commandments and stay away from all His prohibitions to avoid
the heat of hellfire. Thus, providing religious understanding to offspring is the primary
responsibility of parents. Suppose parents waste and do not educate their children with
valuable things. In that case, the parents have done an evil deed because the horror that
arises in a child is parental negligence stemming from lack of attention, lack of education and
so on.
In Article 106, paragraphs (1) and (2) of the Compilation of Islamic Law (KHI), it is
explained that parents are obliged and responsible to:
1. Parents are obliged to care for and develop the property of their child that has
not been or is under custody and may not transfer or duplicate it except for the
imperative necessity if the interests and benefit of the child so desire or an
unavoidable reality;
2. Parents are responsible for losses incurred due to errors and omissions of such
obligations in paragraph (1).
Providing education for children, especially when children have entered the stage of
thinking and starting to receive knowledge, is a responsibility that cannot be missed. At this
time, the child's thinking must be directed so as not to fall into thoughts that make him a
human being who is not virtuous, unfilial and has no charity. Children can be a source of
happiness, but do not rule out the possibility that children can also be a source of disaster. It
all depends on the parenting style parents give to their children.
There is little talk about a father's obligations when a child declares that he will soon
marry by his heart's choice. When a man comes to propose to a father's daughter, asking for
blessings, then the father's role as a parent becomes crucial.18 Because the obligations and
responsibilities that parents have will soon shift to their daughter's future husband,
accepting a proposal is not easy but will be done; this is in accordance with the command of
Allah SWT in QS. An-Nur: 32 following.

ْ ُ ‫او َأن ِك ُحو ۟ا أ ْ َْلي ا َٰ ام ٰى ِم‬
ٌ ‫نُك اوأ ذلُ َٰ ِل ِح اني ِم ْن ِع ابا ِد ُ ُْك اوا امائِ ُ ُْك ۚ اَ يا ُكونُو ۟ا فُ اق اَا اء يُغِْنِ ِ ُم أ ذ َُّل ِمن فاِْ ِ ِ َ اوأ ذ َُّل ا َٰو ٌِ ٌع عا ِل‬
ِ
ِ
"And marry those who are alone among you, and those who are worthy (to marry) of your
sahaya's male servants and your sahaya's female servants. If they are poor, God will enable
them by His grace. And Allah is vast (His gift) again All-Knowing". (QS. An-Nur: 32).
Thus, it can be concluded that the child is a trust or trust bestowed by Allah SWT,
which must be maintained and fostered earnestly by both parents. They educated him to

18

Diana Farid et al., “Praktik Pernikahan Dan Perceraian Di Bawah Tangan,” Mutawasith: Jurnal
Hukum Islam 6, no. 1 (July 27, 2023): 53–69, https://doi.org/10.47971/mjhi.v6i1.612.

152

become a functional human in the afterlife, giving practical lessons and sciences. Parents
must support and inform the child to be independent and stand alone.19
While in the provisions of Article 28 B paragraph (2) of the 1945 Constitution, it is
affirmed that: "Every child has the right to survival, growth and development and the right
to protection from violence and discrimination", the provision has provided a strong
foundation that children have the right to live, grow and develop and have the right to
obtain protection from violence, exploitation and discrimination. The Indonesian nation, as
part of the world community, is committed to ensuring the fulfilment of children's rights and
child protection, which are part of human rights, including the rights to life, survival, growth
and development, participate optimally by human dignity and dignity and receive
protection from violence and discrimination for the realization of prosperous, quality and
protected Indonesian children.20 Child protection is also affirmed in the 1945 Constitution,
namely Article 28 D paragraph (1) of the 1945 Constitution: "Everyone has the right to
recognition, guarantee, protection and fair legal certainty and equal treatment before the
law".
Islam and the State: Children's Rights Affected by Adultery
Children born out of wedlock, according to Islamic Shari'a, have legal consequences:
1. He has no sexual relationship with his biological father but only has a sexual
relationship with his mother and his mother's family. This provision is based on
Article 100 of the Compilation of Islamic Law: "A child born out of wedlock only
has a sexual relationship with his mother and his mother's family".
2. His biological father is not obliged to provide for his adulterous son, this is
summarized in the following hadith:

َُ ‫الْ او ا َُل ِللْ ِف اَ ِاش او ِللْ اْعا ِه َِ الْ اح اج‬

"The child born to the owner of the mattress (that is, the child born to one's wife or his
female slave is his). An adulterer has no right to a child who has adultery." (Muttafaq
'alaih of Abu Hurayrah and 'Aisha radhiyallahu 'anhuma).

3. He is not inheriting each other's property with his biological father. Article 186 of
the Compilation of Islamic Law (KHI): "A child born out of wedlock has only a
relationship of inheritance with his mother and his mother's family only".
4. Not to be the marital guardian of the adulterous child if the child born from the
illicit relationship is a woman.
Based on Article 52 paragraph (2) of the Presidential Regulation of the Republic of
Indonesia Number 25 of 2008 concerning Requirements and Procedures for Population
Registration and Civil Registration, reporting of the birth of children who are not
accompanied by a marriage book will still be accepted. Birth registration will still be carried
out, meaning that extramarital children do not have problems with birth certificates.21 So far,
the rights of extramarital children related to state administration have been fulfilled. But in
some cases, there are rights of children who are deprived of themselves because they are

19
20

21

153

Mu’ammal Hamidi and Imron A. Manan, Tafsir Ayat Ahkam (Surabaya: PT. Bina Ilmu, 2011), 261
Nasaiy Aziz Nasaiy Aziz and Muksal Mina Muksal Mina, “Nasab Anak Yang Lahir Di Luar Nikah:
Analisis Fatwa MPU Aceh Nomor 18 Tahun 2015 Dan Keputusan MK Nomor 46/PUU/VIII/2010,” SAMARAH: Jurnal Hukum Keluarga Dan Hukum Islam 1, no. 1 (July 17, 2017): 72,
https://doi.org/10.22373/sjhk.v1i1.1571.
Abdul rahaman Ghozali, Fiqh Munakahat (Jakarta: Kencana, 2008), 84

Iffah Fathiah, Sofyan Mei Utama, Diana Farid, et al,.

Protection of the Rights of Adultery Children...

born from a wrong act against religious norms and laws committed by their parents,22 not at
all the result of evil acts committed against them. The deprived right is the severance of civil
relations with his biological father. The regulation governing this case is Article 43,
paragraph (1) of Law Number 1 of 1974 concerning Marriage: "A child born out of wedlock
only has a civil relationship with his mother and his mother's family".
Constitutional Court Decision Number 46 / PUU-VIII / 2010 stated in one of its rulings
that Article 43 paragraph (1) of Law Number 1 of 1974 concerning Marriage which says, "A
child born out of wedlock only has a civil relationship with his mother and his mother's
family", has no binding legal force as long as it is interpreted to eliminate civil relations with
men that can be proven based on science and technology and/or other evidence According
to the law,23 it turns out to have a blood relationship as his father, so the verse must read, "A
child born out of wedlock has a civil relationship with his mother and his mother's family
and with a man as his father which can be proven based on science and technology and/or
other evidence according to law to have a blood relationship, including a civil relationship
with his father's family". Chief Justice Mahfud MD., stated: that what the assembly meant by
the phrase "child out of wedlock" was not the child of adultery, but the child of a sirri
marriage that was valid according to religion even though it was not recorded. Children born
from unions that are not registered and valid according to faith do not contradict the
Marriage's nasal, inheritance, and guardian. What the Chairman of the Constitutional Court
Mahfud MD said was correct because the Constitutional Court Number 46/PUU-VIII/2012
decision dated February 17, 2012, following Law Number 1 of 1974 Article 2 paragraph 1.
In addition to the two views above, another view is MUI decision Number 11 of 2012
concerning the Position of Children Resulting from Zina and their Treatment of Him. The
content of the judgment, as stated in the JUDGMENT section on page 9, ultimately aims to
protect the child, not to legalize the sexual relationship between an extramarital child and a
man that results in his birth. The following is the content of the MUI ruling regarding
children outside Marriage:
1. The adulterous child has no sexual relationship, marital guardian, inheritance, or
nafaqah with the man who resulted in his birth.
2. The child of adultery only has a relationship of nasal, inheritance, and nafaqah
with his mother and his mother's family.
3. The child of adultery does not bear the sin of adultery committed by the person
who resulted in his birth.
4. Adulterers are subject to harsh punishment by the authorities to preserve
legitimate offspring (high alnasl).
5. The government has the authority to impose ta'zir punishment on adulterers
who result in the birth of a child by requiring him to:
a. provide for the child's living needs;
b. give away property after he dies through a mandatory will.
c. The punishment referred to in number 5 aims to protect the child, not to
validate the sexual relationship between the child and the man who
resulted in his birth.

Ahmad Syarbaini, “Teori Ta’zir Dalam Hukum Pidana Islam,” Ius Civile: Refleksi Penegakan Hukum
Dan Keadilan 2, no. 2 (April 25, 2019): 1–10, https://doi.org/10.35308/jic.v2i2.967.
23 Muhazir Muhazir, “Islam, Fatwa Dan Negara: Meretas Pluralisme Hukum Perceraian Di Aceh,”
Al-Manahij: Jurnal Kajian Hukum Islam 15, no. 2 (December 1, 2021): 233–48,
https://doi.org/10.24090/mnh.v15i2.5150.
22

154

The Interconnectedness Between Children's Rights Outside of Marriage: An Analysis
from the Perspectives of Islamic and Positive Law
It can be seen that there is a standard view between positive Law and Islamic Law regarding
the position and rights of children outside Marriage; the similarity is the disconnection of the
adulterous man's fate against his unfaithful child, which causes the absence of mutual
inheritance, livelihood and guardianship rights.
In addition to the similarities, there are differences in views between Islamic Law and
Positive Law. The differences include:24
a. Islamic Law and positive Law have different terms for defining extramarital children.
Islamic Law uses the time adulterous child while positive Law uses extramarital
child.
b. The Criminal Code does not explain the definition of adultery but tends to describe
the characteristics of adulterers. The so-called adulterers are those who engage in
marital relations, whether married men or women with men or women who are not
husbands or wives. From this explanation, a common thread can be drawn that in the
Criminal Code, Zina does not apply to those not married, even though they have
marital relations intentionally. Islamic Law does not; adultery applies to both married
and unmarried people. The terms used in Islam are zina muhson and zina ghair
muhson.
c. The Marriage of a pregnant woman out of wedlock, given Islamic Law according to
the four imams of the madhhab, is divided into two opinions. Imam Hanafi and
Imam Shafi'I argued that the Marriage of a pregnant woman is legal because the
woman is not classified as a woman who is haram to marry. Meanwhile, Imam Malik
and Imam Hambali argue that the Marriage of a pregnant woman is invalid because
the woman has a waiting period so that when she wants to carry out the Marriage, it
must be ascertained that the child conceived has been born into the world.
d. Not so with the KHI, which states that marrying a pregnant woman is legal and the
Marriage that has taken place does not have to be repeated when the conceived child
has been born into the world.
A deep understanding of the meaning of Justice is the basis for understanding what
Justice looks like, which will further lead to understanding the theory of Justice in Islam.
The word al-'adl has such a broad meaning of the word. Therefore, it contains a variety
of meanings. Muhammad Husayn al-Thabathaba'i concluded that fair means consistently
moderate and avoiding two extreme positions if rath (more) and tafrith (less).25 Al-Raghib alIsfahani divides Justice into two kinds. First is absolute Justice, whose judgment is based on
reason and universal because it has not changed and applies throughout the ages. Second,
Justice is established through the provisions of sharia and can undergo changes and
cancellations in line with changes in the interests and guidance of the times.26
Justice27 in Islam is at the forefront, not just in matters of Justice and eroding disputes.
But in all cases of state, whether legal, governmental or political.

24 Suryati and Teguh Anindito, “Weak Protection of Civil Rights Zina Children in Indonesia,” Islam
Universalia: International Journal of Islamic Studies and Social Sciences 4, no. 1 (2022),
https://doi.org/10.56613/islam-universalia.v4i1.210.
25 Hamidi and A. Manan, Tafsir Ayat Ahkam.
26 Al-Raghib al al-Isfahani, Mu’jam Mufradat Alfazh Al-Qur’an (Kairo: Dar al-Katib al-’Arabiy, n.d.),337
27 There are at least four meanings of justice put forward by religious scholars. The first is fair in the
same sense, the second is adul in the balanced sense, the third is that justice is the concern for
individual rights and gives them rights to each owner, and the fourth is fair which is attributed to

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Protection of the Rights of Adultery Children...

In the Qur'an, two words generally mean Justice (al-'adl). The two words are Qisth and
Mizan. Justice is not only required in matters relating to deeds but is also commanded in
speech, that is, for people whose power is related to address, not deeds, or both at once, such
as those who serve in public administration, the muftis (fatwas-givers), the good-mongers
and the owners of the madhhab.28
There is a beautiful statement about Justice in the history of Khulafaur Rashidin.
During his reign, Caliph Abu Bakr ash-Shiddiq, in his first sermon on Bai'at, said, "Verily, the
strongest man among you to me is the weak until I assign rights to him. And that the
weakest among you is the strong man by my side until I exercise the right to him". In
addition to Caliph Abu Bakr ash-Shiddiq, Caliph Umar bin Khattab once wrote a letter to his
governor expressing Justice. The letter's content was as follows; "As for Justice, there is no
dispensation therein against near or distant people; in times of difficulty and ease. Justice,
though it looks gentle, is stronger, extinguishes tyranny more, and cuts down wickedness
more than wickedness". Similarly, Caliph Omar bin Abdul Aziz always tried to apply ideal
Justice. One day, Caliph Omar bin Abdul Aziz asked Muhammad bin Ka'ab about the
meaning of Justice and Muhammad bin Ka'ab replied: "Justice is to make yourself a father to
the little ones, as a child to the elderly, and as a brother to the same age. So it is with women,
and punish men according to the degree of their guilt."29
Muslim scholars such as Ibn Taymiyyah also spoke about Justice: "Indeed, people do
not dispute that the consequences of wickedness are terrible and the consequences of Justice
are noble. Therefore, it is narrated that Allah Almighty helps a just State even though it is an
infidel State and does not help a zhalim State even though it is an Islamic State". He added,
"Justice is the system of all things.30 If the cause of the world is established with Justice, then
he becomes upright even though the culprit has no share in the hereafter, but if Justice is not
done, then he will not be upright, even though the doer has faith that will be rewarded in the
hereafter".
According to Article 43, paragraph 1 of Law Number 1 of 1974 concerning Marriage,
extramarital children do not stand alone; it is closely related to the existence of marriages
carried out under Article 2, paragraphs 1 and 2. This Marriage is called outside Marriage
because the Marriage was carried out outside the procedure in Article 2, paragraph 2.
However, Marriage should not be interpreted as adultery because Marriage that falls into the
category of adultery is a marriage that is carried out with the non-fulfilment of the pillars
and conditions according to Islamic Law, which results in the disconnection of the child's
fate against his male parents so that he is not entitled to inherit each other. Even the
Marriage is by article 1 of Law Number 1 of 1974 concerning Marriage. The act of marriage
registration does not determine whether or not a marriage is valid but states that it exists and
occurs. Thus, a child born from a marriage that is valid according to Islamic Law and not
recorded under the Marriage Law does not fall into the category of unfaithful children or
children born out of wedlock due to adultery; the child is stillborn from a legal marriage that
the Divine who has the art of maintaining fairness for the continuation of existence, not preventing
the continuation of existence and the acquisition of grace when there are many possibilities for it.
28 Fuji Rahmadi P, “Teori Keadilan (Theory of Justice)Kajian Dalam Perspektif Filsafat Hukum Islam
Dan Barat,” Jurisprudensi: Jurnal Ilmu Syariah, Perundang-Undangan Dan Ekonomi Islam 10, no. 1
(June 30, 2018): 62–76, https://doi.org/10.32505/jurisprudensi.v10i1.871.
29 Diana Farid et al., “Interfaith Marriage: Subjectivity of the Judge in Determination of No.
454/Pdt.p/2018 Surakarta District Court,” Al-Istinbath: Jurnal Hukum Islam 7, no. 2 November
(December 1, 2022): 347–62.
30 Iman Jauhari et al., “The Qur’an and Islamic Legal Perspectives on Child Protection,” Pharos
Journal of Theology 104, no. 4 (2023), https://doi.org/10.46222/pharosjot.104.417.

156

Law also protects. The necessity of marriage registration refers more to the legal protection
of civil relations arising after Marriage. By being recorded according to laws and regulations,
the Marriage has legal force. If the Marriage is not registered, then the Marriage and children
born from the Marriage will not get maximum legal protection, guarantees, rights and
obligations. The legal consequence caused by the non-registration of a marriage is the nonright of inheritance for children.
Conclusion
The conclusion of this study is that Islamic law and positive law have their own terms in
meaning children resulting from adultery or children outside marriage. Islamic law uses the
term adulterous child while positive law uses extramarital child. When viewed from the
other side, the positive legal reason for using the term extramarital child and not using the
term adulterous child is to avoid forms of discrimination against other religions considering
that the term zina is very attached to Islam, while the religion adopted by Indonesian society
is diverse, not only Islam. Extramarital children according to article 43 paragraph 1 of Law
Number 1 of 1974 concerning Marriage do not stand alone, it is closely related to the
existence of marriages carried out under article 2 paragraphs 1 and 2. This marriage is called
outside marriage, because the marriage was carried out outside the procedure in article 2
paragraph 2. However, marriage should not be interpreted as adultery, because marriage
that falls into the category of adultery is a marriage that is carried out with the nonfulfillment of the pillars and conditions according to Islamic law which results in the
disconnection of the child's fate against his male parents so that he is not entitled to inherit
each other. Even the marriage is in accordance with article 1 of Law Number 1 of 1974
concerning marriage. The act of marriage registration does not determine whether or not a
marriage is valid, but states that it does exist and occur. Thus, a child born from a marriage
that is valid according to Islamic law and not recorded under the Marriage Law, does not fall
into the category of adulterous children or children born out of wedlock due to adultery, the
child is still born from a legal marriage that is also protected by law. The necessity of
marriage registration refers more to legal protection of civil relations arising after marriage.
By being recorded according to laws and regulations, the marriage has legal force. If the
marriage is not recorded, then the marriage and children born from the marriage, will not
get maximum legal protection, guarantees, rights and obligations. The legal consequence
caused by the non-registration of a marriage is the non-right of inheritance for children.
Nasab a child born from a marriage performed in violation of the pillars and
conditions of Islamic marriage is interrupted and impossible to connect because if a child
born outside of Islamic marriage is given legal status to the man who caused his birth, then
the whole institution of marriage that is so noble will fall apart and this act will tarnish the
marriage law. This means that what was originally the way of marriage was the only way to
connect the marriage, is no longer valid. The termination of the marriage between the
adulterer and his adulterous child is appropriate and in accordance with Islamic law.
According to M. Quraish Shihab, religion judges adulterers do not value sperm shed
unlawfully, so she is not entitled to honor through the bearing of her name on her child born
of adultery. However, from the termination of this fate, it is feared that the adulterer will feel
free from punishment for the mistakes he has committed because there is no responsibility to
be done to the child who committed adultery.
So the researcher thought of a middle way that could be taken, namely punishing
adulterers to remain responsible like parents in general by meeting all the needs of their
adulterous children and he was not entitled to the fate of his adulterous children. Thus, the

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Protection of the Rights of Adultery Children...

marriage law will not be tainted and the adulterer's deterrent for his actions will be
overcome.
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