SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 https://doi.
org/10.
18592/sjhp.
E-ISSN : 2549-001X
REDEFINING LEGAL FRAMEWORKS:
PROGRESSIVE METHODS IN ASCERTAINING
CHILDRENAoS LINEAGE FROM FASID
MARRIAGES IN RELIGIOUS COURT
Fitriyadi, 2Tri Hidayati, 3Ahmadi Hasan, 4Akhmad Sukris Sarmadi 1,2,3 State Islamic University of Antasari Banjarmasin.
Indonesia 4 State Islamic Institute of Palangkaraya.
Indonesia Email: mahlanfitriyadi@gmail.
com1, tri.
hidayati@iain-palangkaraya.
id2 ahmadihasan58@yahoo.
akhmadsukrissarmadi@gmail.
Received 21-09-2.
Revised 01-02-2024, 23-03-2024, 28-04-2024 | Accepted 28-05-2024 Abstrak: Penelitian ini bertujuan untuk mengungkap dan menganalisis pertimbangan majelis hakim dalam perkara penetapan asal usul anak akibat perkawinan fasid di seluruh Pengadilan Agama di Kalimantan Selatan, serta menawarkan konstruksi hukum yang ideal dalam penetapan asal usul anak dalam rangka perlindungan hukum bagi anak berdasarkan pendekatan hukum Penelitian ini merupakan penelitian hukum normatif yang menggunakan pendekatan kasus .
ase approac.
dan pendekatan perundang-undangan .
tatute approac.
Analisis data menggunakan teknik analisis isi kualitatif, yaitu menginterpretasikan pertimbangan hukum hakim dalam Penetapan Pengadilan Agama.
Hasil penelitian ini menetapkan asal usul anak dari perkawinan fasid di Pengadilan Agama di Kalimantan Selatan dari tahun 2020 sampai dengan tahun 2022 terdiri dari 13 yang menolak permohonan dan 15 yang mengabulkan permohonan.
Mereka yang mengabulkan mempertimbangkan pentingnya perlindungan anak berdasarkan UU Perlindungan Anak dan pendapat ulama kontemporer.
Di sisi lain, mereka yang menolak berlandaskan pada UU Perkawinan dan KHI bahwa perkawinan fasid tidak sah secara materiil dan formil sehingga anak yang dilahirkan menjadi tidak sah.
Perlindungan terhadap anak merupakan hak asasi yang harus digali oleh hakim dengan pendekatan hukum progresif, bahwa anak dari perkawinan fasid tidak boleh menanggung beban atas kesalahan dan kelalaian kedua orang tuanya terhadap peraturan hukum yang berlaku.
Pendekatan hukum progresif ini harus diimplementasikan dalam bentuk aturan yang pasti untuk melindungi hak-hak anak dari perkawinan fasid di Indonesia.
Kata Kunci: Perkawinan Fasid.
Hukum Progresif.
Pertimbangan Hakim.
Perlindungan Anak.
Abstract: This study aims to reveal and analyze the considerations of the panel of judges in cases of determining the origin of children due to fasid marriages in all Religious Courts in South Kalimantan, and to offer an ideal legal construction in determining the origin of children in the context of legal protection for children based on a progressive legal approach.
This research is a normative legal research that used a case approach and a statutory approach.
Data analysis used qualitative content analysis techniques, namely interpreting the judge's legal considerations in the Religious Court Determination.
The results of this study determine the origin of children from fasid marriages in the Religious Courts in South Kalimantan from 2020 to 2022 consisting of 13 that rejected the application and 15 that granted the application.
Those who granted considered the importance of child protection based on the Child Protection Law and the opinions of contemporary scholars.
On the other hand, those who rejected based on the Marriage Law and the KHI that fasid marriages were invalid materially and formally so that their children became Protection for children is a fundamental right that must be explored by judges with a progressive legal approach, that children from fasid marriages should not bear the burden of the mistakes and negligence of both parents regarding applicable legal regulations.
This progressive legal approach should be implemented in the form of definite rules to protect the rights of children from fasid marriages in Indonesia.
Keywords: Fasid Marriage.
Progressive Law.
JudgeAos Considerations.
Child Protection.
https://jurnal.
uin-antasari.
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php/syariah/article/view/12894 SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 149
INTRODUCTION
The status of marriage validity determines the legal protection for both spouses and their offspring.
Law No.
1/1974 on Marriage .
ereinafter referred to as Law No.
1/1.
as amended by Law No.
16/2019 on the Amendment of Law No.
1/1974 .
ereinafter referred to as Law 16/2.
, stipulates that a marriage will be considered valid if it is carried out in accordance with the religious beliefs of the couple concerned .
ubstantive requirement.
and administered .
ormal requirement.
in accordance with applicable regulations (Article 2 paragraphs .
juncto Article 8 letter .
Marriage registration is conducted at the Religious Affairs Office (KUA) for Muslims and at the Civil Registration Office (DUKCAPIL) for Muslims.
2 non-Muslims.
This is done to provide legal certainty and legal protection, because the main purpose of this law is to create order and balance in the order of society in order to realize order in accordance with the applicable The Religious Court has the authority to determine the validity of marriage through the itsbat nikah procedure due to nikah sirri.
2 However, the request for itsbat nikah is not always accepted by the Religious Court because it is considered that it does not fulfill the conditions of marriage or there is a violation of the principles of marriage that results in the cancellation of the marriage .
ikah fasi.
This impacts on the validity of the marriage substantively and formally, and which in turn affects the status of the children from the 3 Children born into a registered marriage will be recognized as legally legitimate.
Meanwhile, children born from unregistered marriages, whether substantively valid .
n accordance with religious principle.
or formally or administratively invalid, are both considered legally illegitimate.
For illegitimate children, legal remedies can be made through the process of itsbat nikah and child validation through filing a lawsuit or application for the origin of the child with the Religious Court.
In the context of Islamic law, fiqh scholars have differing opinions on the definition and criteria of a void marriage .
According to the Hambali scholars, a fasid marriage is one that does not fulfill its conditions, while if there are defects in certain elements, then the marriage can be considered void.
For example, according to Hambali, the presence of 1 Sudikno Mertokusumo.
Knowing Law: An Introduction (Yogyakarta: Cahaya Atma Pustaka, 2.
, 99.
2 Unrecorded marriages are known by several terms, such as kawin sirri, kawin di bawah tangan, kawin syar'i, kawin modin, and often also called kawin kiyai.
What is meant by sirri marriage in the context of marriage law is marriage in general in Islam, where there are several conditions and pillars that must be fulfilled such as the existence of a prospective bride, guardian, 2 witnesses, aqad and masawin.
In Indonesian Marriage Law, nikah sirri is a marriage practice, either monogamous or polygamous, that is not registered at the local Religious Affairs Office.
The sirri marriage has been studied by many researchers including: Anwar Hafidzi et al.
, "Sirri Marriage Celebration and Its Impact on Social Change in Banjarese Community.
South Kalimantan," Al-Ahkam (October 153-68, https://doi.
org/10.
21580/ahkam.
Rahmiyati Rahmiyati.
Diana Rahmi, and Nadiyah Nadiyah, "Siri Marriage Practices In Makmur Village Community.
In Gambut.
Banjar District," Syariah:
Journal of Law and Thought 20, no.
1 (July 1, 2.
: 27-40, https://doi.
org/10.
18592/sjhp.
Khairani Amalia Tambunan.
Sriono Sriono, and Risdalina Siregar, "Legal Respect for Children from Sirri's Marriage in the Perspective of Islamic Marriage Law and Reglations Indonesian Law in the District Labuhanbatu," Budapest International Research and Critics Institute (BIRCI-Journa.
: Humanities 4, no.
: 2043-52.
Idris Idris.
Raya Lestari, and Zetria Erma, "The Problems of Siri Marriage for Couples Who Have Not Married According to the Law in Marriage Legal Perspective," Legal Brief 11, no.
: 3520-29.
3 Tambunan.
Sriono, and Siregar, "Legal Respect for Children from Sirri's Marriage in the Perspective of Islamic Marriage Law and Reglations Indonesian Law in the District Labuhanbatu".
Nurhadi Nurhadi, "The Dualism of the Supreme Court's Decisions on the Position of Non-Marital Child," Journal of Law and Justice 8, no.
: 228-54.
4 Muhammad Fauzinudin Faiz.
Zezen Zainul Ali, dan Muhammad Taufiq.
AuUnderage Widows and Widowers before the Law: Problem.
Contestation and Legal Certainty in Marriage Dispensation,Ay JURIS (Jurnal Ilmiah Syaria.
22, no.
Desember 2.
: 223, doi:10.
31958/juris.
150 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
a guardian is not a valid condition of marriage, whereas according to Shafi'i, the permission of the guardian is one of the valid conditions of marriage for a woman, whether she is a girl or a widow.
Substantive provisions related to marriage can be found in Law No.
1/1974 and the Compilation of Islamic Law (KHI), which is the result of the agreement of most scholars with a background in the Syafi'i school of thought.
Law No.
1/1974 and KHI regulate the prohibition of marriage and the annulment of marriage.
Marriage prohibitions can include technical aspects (Article 7 of Law No.
1/1.
and permanent or temporary prohibitions (Article 8 to Article 12 of Law No.
1/1974 and Article 40 to Article 44 of KHI).
Regarding marriage annulment, this procedure is regulated in Article 28.
Articles 39 to 44 of Law No.
1/1974, and Articles 70 to 76 of KHI.
However, these regulations do not explicitly regulate void marriages .
ikah fasi.
The problem of clarifying the status of children born from a failed marriage can indeed be submitted to the Religious Court, but not all applications for the origin of children submitted are accepted by the judge.
For example, several religious courts in South Kalimantan rejected applications for the origin of children for various reasons.
Among them are because the woman is still bound by her first husband's marriage .
(Case No.
38/Pdt.
P/2017/PA.
Bjb.
the woman is in the waiting period .
or the marriage guardian is not the nasab guardian in accordance with the provisions of Islamic law (Article 1 letter b KHI), but the wali muhakkam appointed by the village head as the marriage guardian (Case No.
581/Pdt.
P/2020/PA Bj.
7 Another reason, in Case 38/Pdt.
P/2017/PA.
Bjb, was that one of the applicants was still bound by a previous marriage because it had not been divorced through the Religious Court.
The applicants entered into an unlawful marriage and gave birth to a child.
After the birth of the child, the two entered into a legal marriage.
In this case, the Panel of Judges rejected the application on the basis that the status of Applicant II, who was still bound to her previous husband, was something that Applicant I and Applicant II were aware of, so it could not be considered a void marriage .
ikah fasi.
As a result, the children of the applicants could not be recognized as descendants of their father.
A child can be said to have a legitimate nasab relationship with his father if he is born from a legal marriage, both materially and formally.
Conversely, a child born outside a legal marriage cannot be called a legitimate child and is usually called an adulterous child or a child outside a legal marriage and he only has a nasab relationship with his mother.
According to Rofik, talking about the origin of children is actually talking about legitimate 5 Wahbah Zuhaily.
Al-Fiqhul Islamy Wa 'Adillatuhuh.
Volume 7 (Beirut: Dar al-Fikr, 1.
, 686-87.
Some studies that mention marriage guardians include: Agustin Hanapi and Edy Yuhermansyah, "Urgency of Marriage Registration for Women and Child Protection in Gayo Lues District," Samarah: Journal of Family Law and Islamic Law 4, no.
2 (December 28, 2.
: 528-44, https://doi.
org/10.
22373/sjhk.
Fatum Abubakar, "Islamic Family Law Reform: Early Marriage and Criminalization (A Comparative Study of Legal Law in Indonesia and Pakista.
," Al-Ahkam Journal of Shari'ah and Legal 4, no.
https://oldjournal.
id/index.
php/al-ahkam/article/view/1667.
Nabilah Luthfiyah Chusnida and Teddy Prima Anggriawan, "Dispensation of Marriage in the Perspective of Children's Rights: Best Interest of the Children," De Jure Journal of Legal Research 22, no.
: 295-310.
Nur Alam Nur Alam.
Rusdaya Basri, and Fikri Fikri, "Dynamics of Judges' Considerations in the Determination of Marriage Dispensation at the Enrekang Religios Court," Al-Iftah: Journal of Islamic Studies and Society 1, no.
: 112.
Ahmad Ropei et al.
, "Managing 'Baligh' in Four Muslim Countries: Egypt.
Tunisia.
Pakistan, and Indonesia on the Minimum Age for Marriage," Al-Ahwal: Journal of Islamic Family Law 16, no.
1 (June 30, 2.
: 112Ae40, https://doi.
org/10.
14421/ahwal.
6 Muna Madrah dkk.
AuThe Policy Integration Concept of The Mahram Relationship on Nurseling Study on Nurseling Practices in Semarang.
Central Java-Indonesia,Ay AL-IHKAM: Jurnal Hukum & Pranata Sosial 17, 2 .
Desember 2.
: 356, doi:10.
19105/al-lhkam.
7 "Directory of Decisions," accessed June 15, 2023, https://putusan3.
8 Compilation Team of Banjarbaru Religious Court.
Compilation Team of Banjarbaru Religious Court.
Contextualization of Islamic Civil Law: Text-Context Synergy (Yogyakarta: Phoenix Publisher, 2.
, 173.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 151 9 In some cases about the determination of the origin of children in the Religious Court, there are some differences between one case and another because of differences in understanding and beliefs of the Religious Court judges about the status of the child, whether the legitimate child of the father and mother, the biological child of the father of the mother, the child of the mother who has a biological and civil relationship with the father, or the child recognized as the child of the father of the mother who does not clearly mention whether the child is legitimate or not.
Of course, with the difference in determination, there are different legal consequences for the child.
The origin of the child is the basis for showing the existence of a relationship of kemahraman .
with his father.
This is what is believed in Sunni Jurisprudence.
The scholars agree that adulterated children, or li'an children only have a nasab relationship with their mother and mother's siblings.
Determining a child's nasab is one of the most important rights of a child and is something that has a lot of impact on the child's personality and A child must know about his descendants, because the origin of which concerns the offspring and is very important to take life in society.
Based on the above background, this research aims to reveal and critically analyze the considerations of Religious Court judges in South Kalimantan in determining the origin and status of children from facade marriages and construct an ideal law for determining the origin of children based on a progressive legal perspective.
There are several relevant previous studies on facade marriages and child protection in facade marriages.
Among them is Rofahiyah's research12 , which examines normatively the concept of protection of children outside of marriage.
Fathoni and Auliya13 , who examine the status of children in invalid Oktaviana and others, who examine the decisions of the Religious Court and the Sharia Court regarding the nasab of children.
14 However, all of them have not comprehensively studied and have not mapped the differences in determining the origin of children in the religious courts, especially since this research intends to offer a solutive legal 9 Ahmad Rofiq.
Islamic Law in Indonesia (Jakarta: PT.
RajaGrafindo Persada, 1.
, 220.
10 Fika Aufani Kumala.
AuSewa Rahim Antara Pro dan Kontra,Ay El-Mashlahah 10, no.
Desember 2.
26, doi:10.
23971/maslahah.
11Andi Sumsul Alam and Muhammad Fauzan.
The Law of Child Adoption from an Islamic Perspective (Jakarta:
Pena Media, 2.
, 175.
12 Gina Rofahiyah, "The Concept of Legal Protection of Unmarried Children in Indonesia and Malaysia from the Perspective of Ibn Qayyim Al-Jauziyyah in Tufatu Al Maudd Bi AhkAmi Al Mauld" (Master Thesis.
Faculty Sharia Law.
UIN Syarif Hidayatullah Jakarta, https://repository.
id/dspace/handle/123456789/65617.
13 Al Fathoni and M.
Irsyad Auliya, "Juridical Analysis of the Status of Children After the Cancellation of Marriage Due to Wrongful Guardianship (Study of Decision Number: 0947/Pdt.
G/2016/PA.
Po at the Ponorogo Religious Cour.
" (PhD Thesis.
IAIN Ponorogo, http://etheses.
id/id/eprint/25676.
14 Dwi Oktavia, "Protection of Children's Nasab Rights Without Isbat Nikah (Analysis of the Stipulation of the Syar'iyah Court Number 40/Pdt.
P/2021/MS.
Bn.
" (PhD Thesis.
UIN Ar-Raniry, 2.
, https://repository.
ar-raniry.
id/id/eprint/23636/.
Jati Prihantono, "Analysis of the Decision to Validate the Origin of Extra-Marital Children Based on Law Number 1 of 1974 concerning Marriage in the Perspective Hifzhu Nasl" (PhD Thesis.
IAIN
KUDUS,
http://repository.
id/id/eprint/11266.
Yosan Yolanda, "Analysis of the Position of Children in the Cancellation of Marriage in Indonesia from the Perspective of Islamic Law" (PhD Thesis.
UIN Fatmawati Sukarno Bengkulu, 2.
, http://repository.
id/id/eprint/536.
Tambunan.
Sriono, and Siregar, "Legal Respect for Children from Sirri's Marriage in the Perspective of Islamic Marriage Law and Reglations Indonesian Law in the District Labuhanbatu".
Nurhadi, "The Dualism of the Supreme Court's Decisions on the Position of Non-Marital Child".
Haniah Ilhami.
Destri Budi Nugraheni, and Tata Wijayanta, "Child Protection Post the New Marriage Law: How the Indonesian Religious Court Interprets the Urgency in Child-Age Marriage," Journal Ius Kajian Hukum Dan Keadilan 11, no.
: 75-95.
Qodariah Barkah et al.
, "Abandonment of Women's Rights in Child Marriage.
An Islamic Law Perspective," ALIHKAM: Journal of Law & Social Institutions 17, no.
: 383-411.
152 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
construction for the protection of children from fasad marriages, especially in the jurisdiction of religious courts in Indonesia.
METHOD
This research is a normative legal research that uses a case approach and a statutory The case approach aims to examine the application of legal norms or rules in legal practice contained in Court Decisions/decisions,15 namely Religious Court Decisions regarding the origin of children from fasid marriages in the jurisdiction of the South Kalimantan Religious High Court.
The statutory approach aims to explore the inclusiveness or accommodation power of legal norms on the authority of religious court judges, facade marriage, child status, and protection of children's rights.
This research data comes from literature review in the form of secondary data consisting of primary legal materials and secondary legal materials.
Primary legal materials consist of Religious Court Decisions in the South Kalimantan region regarding the origin of children from facade marriages in 2020 to 2022.
This data is obtained from the directory of Supreme Court decisions17 and from the documents of the Religious Courts in the South Kalimantan Region, and is complemented by laws and regulations including the 1945 Constitution.
Marriage Law.
Judicial Power Law.
Human Rights Law.
Child Protection Law, and the Compilation of Islamic Law.
The secondary legal materials of this research are in the form of annual reports of the Religious Courts and Religious High Courts, books, and journal articles relevant to the object of research.
The data analysis process uses technical content analysis18 which is presented in a descriptive qualitative manner, namely interpreting the legal argumentation of the judge in the Religious Court decision and analyzing it using legislation and legal discovery theory and progressive legal theory.
RESULTS AND DISCUSSIONS
Child Protection in the Legal Consideration of Determining the Origin of Children from Fasid Marriages in the Religious Courts of South Kalimantan Region The obligation to determine the origin of children for individuals who adhere to Islam is the duty of the Religious Court based on Law Number 7 of 1989 concerning Religious Courts as amended by Law Number 3 of 2006 and the second revision through Law Number 50 of 2009 concerning Amendments to Law Number 7 of 1989 concerning Religious Courts.
Determination of the origin of children for Muslims can be done in 2 .
ways Law No.
1/1974 Article 55 and KHI Article .
, through: first, official documents such as birth certificates or other legal evidence that can validate the origin of a or second, through a Religious Court Determination.
In the absence of valid official evidence such as birth certificates or documents mentioned in point .
, the Religious Court is authorized to issue a decision on the origin of the child after conducting a careful investigation with reference to valid evidence.
On the basis of the decision issued by the 15 Jonaedi Efendi and Johnny Ibrahim.
Legal Research Methods: Normative and Empirical (Jakarta: Kencana, 2.
, 146-47.
16 Efendi and Ibrahim, 132.
17 "Directory of Decisions.
"Basic Content Analysis | Robert Philip Weber | Download," August 8, 2022, https://en.
org/book/1184154/4d0538.
Jumal Ahmad, "Content Analysis Research Design," Research Gate 5, no.
: 1-20.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
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June 2024 | 153 Religious Court as described in point .
, the birth registration agency within the jurisdiction of that Religious Court has the authority to issue a birth certificate for the child concerned.
From 2020 to 2022.
Religious Courts in the jurisdiction of the Banjarmasin High Religious Court.
South Kalimantan Province, have handled cases of the origin of children from facade marriages.
The number of incoming applications and judges' legal considerations can be classified as follows:
First, there were 15 cases of Religious Court decisions accepting applications for the origin of children.
The details are in table 1.
1 below:
Table 1.
List of Religious Court Decrees Granting Applications for the Origin of Children No.
Year Religious Court Religious Court of Barabai Religious Court of Barabai Religious Court of Marabahan Religious Court of Batulicin Religious Court of Amuntai Religious Court of Barabai Religious Court of Martapura Religious Court of Tanjung Religious Court Decree Causes of facade Number 92/Pdt.
P/2020/PA.
Brb The wife is still married to another person The husband is still 107/Pdt.
P/2020/PA.
Brb married to another each wife and husband 30/Pdt.
P/2020/PA.
Mrb are still married to someone else The guardian of the 101/Pdt.
P/2021/PA.
Blcn marriage was the village each wife and husband 104/Pdt.
P/2021/PA.
Amt are still married to someone else 74/Pdt.
P/2021/PA.
Brb The wife is still married to another person The guardian of the 361/Pdt.
P/2021/PA.
Mtp marriage was the village 279/Pdt.
P/2021/PA.
Tjg The wife is still in her iddah period 19 Akhmad Wafi dkk.
AuReaktualisasi Persyaratan Perempuan Menjadi Saksi Perkara Perdata Dalam Fikih Klasik Dan Korelasinya Pada Hukum Modern,Ay JOURNAL OF ISLAMIC AND LAW STUDIES 7, no.
November 2.
: 186, doi:10.
18592/jils.
154 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
No.
Year Religious Court Religious Court Decree Causes of facade Number The husband is still Religious Court of Barabai 128/Pdt.
P/2022/PA.
Brb married to another person and The wife is still in her iddah period Religious Court of Kandangan Religious Court of Negara Religious Court of Batulicin Religious Court of Rantau Religious Court of Kotabaru Religious Court of Pelaihari 232/Pdt.
P/2022/PA.
Kdg 95/Pdt.
P/2022/PA.
Negr 4/Pdt.
P/2022/PA.
Blcn The wife is still married to another person The wife is still married to another person The wife is still married to another person each wife and husband 207/Pdt.
P/2022/PA.
Rtu are still married to someone else 9/Pdt.
P/2022/PA.
Ktb The wife is still married to another person The husband is still 502/Pdt.
P/2022/PA.
Plh married to another In the above cases it can be seen that there was a material defect in the marital status of the applicant or applicants, namely that the wife/husband or both were still married to the marriage guardian was not the nasab guardian, but a muhakkam guardian appointed by the village head as the marriage guardian.
and the marriage was during the iddah period.
In this case, the judge first checks the marital status of the child's parents by ascertaining in evidence whether the child is the result of adultery or not .
n accordance with Article 44 of Law No.
1/1.
Apart from adultery, the judge also considered the status of the child as a result of the marriage of the applicants, without questioning the material or formal defects of the marriage .
ncluding fasid marriage.
20 Given that there was no violation of Article 44 of Law No.
1/1974, the judge also examined in depth and comprehensively before determining the status and validity of the child.
The judges' legal considerations in the 15 .
decisions above generally used the legal basis with an intensity that can be classified as in the following table:
Table 1.
Legal Basis for Judges Granting Petitions Origin of Children 20 Adinda Dewi Mutiara Sari dan Seno Aris Sasmito.
AuPenetapan Wali Hakim Dalam Perkawinan Di Kantor Urusan Agama Kecamatan Karanganyar Kabupaten Karanganyar Tahun 2020,Ay El-Usrah: Jurnal Hukum Keluarga 5, no.
Desember 2.
: 340, doi:10.
22373/ujhk.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 155 Number No.
Legal Basis for Granting the Application Referral Intensity Constitution of the Republic of Indonesia Amendment II Article 28B Paragraph .
Constitution of the Republic of Indonesia Amendment II Article 28I Paragraph .
Constitution of the Republic of Indonesia Amendment II Article 28I Paragraph .
20,00% 6,67% 6,67% 6,67% 33,33% 26,67% 26,67% 6,67% 33,33% 6,67%
6,67%
26,67%
20,00%
Law Number 1 of 1974 which has been amended by Law Number 16 of 2019 concerning Marriage.
Article 44 paragraph .
Law Number 39 Year 1999 on Human Rights.
Article 52 Paragraph .
Law Number 39 Year 1999 on Human Rights.
Article 53 Paragraph .
Law No.
23/2002 on Child Protection, concordance.
Child Protection Law Number 23 of 2002 concerning Child Protection.
Article 5 Child Protection Law Number 23 of 2002 concerning Child Protection.
Article 7 Child Protection Law Number 23 of 2002 concerning Child Protection.
Article 27 Law Number 4 Year 2004 on Judicial Power Article 25 Paragraph .
Law Number 35 of 2014 amending Law Number 23 of 2002 concerning Child Protection.
Article 7 Paragraph .
Constitutional Court Decision 46/PUUVi/2010 Number Compilation of Islamic Law.
Article 99
20,00%
QS.
Al-An'am: 164
6,67%
156 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
Number No.
Legal Basis for Granting the Application Referral Intensity The Hadith of the Prophet SAW which reads: "That the child is born in a state of fitrah.
The Hadith of the Prophet (SAW) which reads: "The children of a woman belong to the man who is her husband.
Kitab al-Fiqh al-Islamu wa-Adillatuhu.
Volume V.
Kitab al-Fiqh al-Islamu wa-Adillatuhu.
Volume VII, pages 675-676.
kitab al-wajiz fi fiqh madzhab al-imam al-shafi'i pages 1,59% 1,59% 93,33% 6,67% 6,67% Qawa'id al-Fiqh, p.
6,67%
Al Majmu' book page 360
6,67%
Kitab Al-Mughni volume Vi page 96
6,67%
Al-Maqashid ash-Shari'iyyah 20,00% Child Interests 1,59% Based on the data above, there are various legal bases and references that were used as legal references by the panel of judges.
The reference most often used by judges is the opinion of Wahbah Az-Zuhaily in Kitab Al-Fiqh Al-Islamu wa-Adillatuhu.
Volume V, page 21 According to Wahbah Az-Zuhaily, if a marriage has actually taken place, even if it is a fasid .
marriage or a marriage that is carried out in a customary or traditional way, even if it is not registered in an official marriage certificate, then the nasab of the child born to the woman is the child of the husband and wife .
22 This is a matter of justice for the child.
The concept of justice that is attributed to divine teachings can be understood as an effort to maintain the obligation for the existence of children, because Allah SWT's justice is basically his mercy and kindness.
23 Children born to sinful parents should not bear the sins of their parents, because children are born in a state of purity or The sanctity of this child is a right that must be understood by everyone, especially by Religious Judges.
24 In line with that, judges also refer to the 1945 Constitution, including Article 28B paragraph .
and Article 28I paragraphs .
Law Number 39 of 1999 21 Wahbah Zuhaily.
Al-Fiqhul Islamy wa 'Adillatuhu, vol.
II (Cairo: Darul Fikri, 1.
, p.
22 Wahbah Zuhaily.
Al-Tafsir al-Munir, vol.
IX (Beirut: Dar al-Fikr, 1.
, p.
23 Zulkifli Zulkifli, "Demands for Justice in the Perspective of Islamic Law," JURIS (Sharia Scientific Journa.
17, no.
1 (June 30, 2.
: 140Ae42, https://doi.
org/10.
31958/juris.
24 Mutiara Fahmi dan Fitiya Fahmi.
AuPenetapan Nasab Anak MulAAoanah Melalui Tes DNA (Studi Atas Metode IstinbA Ysuf al-QarasA.
,Ay Samarah: Jurnal Hukum Keluarga Dan Hukum Islam 3, no.
Agustus 2.
: 133, doi:10.
22373/sjhk.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 157 concerning Human Rights in Article 52 paragraph .
and Article 53 paragraphs .
All of these articles emphasize that every child has the right to survival, growth and development and the right to protection from violence and discrimination.
For this reason, children have the right to life, not to be tortured, freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of retroactive laws.
For its sake, the rights of the child are recognized and protected by law even from the womb.
Judges are part of the judiciary, which is a representation of the Indonesian State, and are obliged to apply the Constitution in each of their decisions, without denying the judges' Another reference for the judges was Law No.
23/2002 on Child Protection (Law No.
23/2.
Article 5 stipulates that every child has the right to a name as an identity and citizenship status, and Article 7 Paragraph .
that every child has the right to know his or her parents, to be raised, and to be cared for by his or her own parents.
In this case the judge seemed to consider the psychological aspects of the child who would be disturbed because they did not know who their parents were if they held the status of illegitimate children.
The judge considered that the sins of the parents should not be a burden for the child, especially since the sins were committed due to ignorance and not intentionally by the applicants when they got married.
This is in line with the Qur'an Surah Al-An'am Verse 164.
To ensure the protection of children's rights and welfare, the status and identity of children must be legalized as stipulated in the Child Protection Law, namely in Article 27 Paragraph .
and Paragraph .
However, in the dictum of the ruling of the Religious Court above there are differences in the diction of children, such as the biological children of the applicants, biological children of the applicants, children of the applicants, biological children of the applicants, or biological children of the applicants.
Meanwhile, the term biological child refers to the decision of the Constitutional Court Number 46/PUUVi/2010, and there is no definite rule in positive law.
Islamic law, and fiqhiyah doctrines.
Secondly.
Religious Court decisions rejecting child origins applications amounted to 13 cases, with the following details:
Table 1.
List of Religious Court Decrees Rejecting Child Origin Applications No.
Year Religious Court Religious Court of Banjarmasin Religious Court of Banjarmasin Religious Court Decree Causes of facade Number 527/Pdt.
P/2020/PA.
Bjm 171/Pdt.
P/2020/PA.
Bjm the guardian of the marriage is not a Muslim The wife is still married to another person 25 Abdullah Jarir.
Ratno Lukito, dan Moch Nur Ichwan.
AuLegal Reasoning on Paternity: Discursive Debate on Children Out of Wedlock in Indonesia,Ay AHKAM : Jurnal Ilmu Syariah 23, no.
Desember 2.
, https://journal.
id/index.
php/ahkam/article/view/27005.
26 Agustin Hanapi.
Imanuddin Imanuddin, dan Khairuddin Hasballah.
AuKedudukan Metode al-QAfah Dalam Penetapan Nasab Anak Menurut Ulama Perspektif Maqashid al-Syariah,Ay De Jure: Jurnal Hukum dan SyarAoiah 14, no.
Juni 2.
: 21, doi:10.
18860/j-fsh.
27 Fahmi Al Amruzi.
AuHak Dan Status Anak Syubhat Dalam Pernikahan,Ay Syariah: Jurnal Hukum Dan Pemikiran 17, no.
Agustus 2.
: 10, doi:10.
18592/sy.
158 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
No.
Year Religious Court Religious Court of Banjarmasin Religious Court of Banjarbaru Religious Court of Martapura Religious Court of Banjarmasin Religious Court Decree Causes of facade Number The guardian of the 581/Pdt.
P/2020/PA Bjm marriage was the village 166/Pdt.
P/2020/PA.
Bjb 290/Pdt.
P/2020/PA.
Mtp 67/Pdt.
P/2021/PA.
Bjm The wife is still married to another person The wife is still married to another person The wife is still married to another person The wife is still married to Religious Court of Banjarmasin 551/Pdt.
P/2021/PA Bjm another person and The guardian of the marriage was the village headman Religious Court of Amuntai Religious Court of Banjarbaru Religious Court of Banjarbaru Religious Court of Martapura Religious Court of Banjarmasin Religious Court of Banjarmasin 348/Pdt.
P/2021/PA.
Amt The wife is still married to another person each wife and husband are 115/Pdt.
P/2021/PA.
Bjb still married to someone 157/Pdt.
P/2021/PA.
Bjb The wife is still married to another person each wife and husband are 169/Pdt.
P/2021/PA.
Mtp still married to someone The guardian of the 234/Pdt.
P/2022/PA.
Bjm marriage was the village 262/Pdt.
P/2022/PA.
Bjm The wife is still married to another person In their legal considerations, the judges of the 13 .
decisions above used material law references with intensity as shown in the following table:
Tabel 1.
Legal Basis for Rejecting an Application SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 159 Number No.
Legal Basis for Rejecting the Application Intensity Referrals Law Number 1 Year 1974 Concerning Marriage Article 2 Paragraph .
Law Number 1 Year 1974 Concerning Marriage Article 2 Paragraph .
46,15% 7,69% Law Number 1 of 1974 concerning Marriage Article 3
30,77%
Law Number 1 of 1974 concerning Marriage Article 9
15,38%
Law Number 1 of 1974 concerning Marriage Article 10
15,38%
23,08%
Law Number 1 Year 1974 concerning Marriage Article Compilation of Islamic Law Article 1 letter b
23,08%
Compilation of Islamic Law Article 4
15,38%
Compilation of Islamic Law Article 5
7,69%
7,69%
Compilation of Islamic Law Article 7 Paragraph .
Compilation of Islamic Law Article 14
15,38%
Compilation of Islamic Law Article 20
7,69%
Compilation of Islamic Law Article 23
7,69%
Compilation of Islamic Law Article 40
30,77%
Compilation of Islamic Law Article 99 letter a 69,23% 7,69% 15,38% 7,69% 15,38% Regulation of the Minister of Religious Affairs of the Republic of Indonesia Number 30 of 2005 concerning Guardian Hakim Article 1 Point 2 An-Nisa verse 24 Hadith of the Prophet SAW, which means: The government .
becomes the guardian of a person who has no guardian (HR.
Ash Shafi'I.
Abu Daud and Ibn Hibba.
Kitab Ats-Tsamr Ad-Daani fi Taqriib al-Ma'aani.
Syarh Risaalah Ibni Abi Zaid Al-Qoyrowaani.
Al-Azhari, p 160 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
Number No.
Legal Basis for Rejecting the Application Intensity Referrals 451: The definition of shubhat marriage is when a person marries an invalid marriage, which is agreed to be invalid, but is not enforced.
Such as marrying a woman who is still in 'iddah, or a woman who is his fifth wife, or a woman who is his mahram, if he is unaware of that, and he has had intercourse with her, or he has had intercourse with a woman whom he thought was his wife.
So all these women are haraam for the man concerned, including anything other than Kitab Al Muhazzab Juz II page 320 which means: If the claim .
is not proven, then the claim
7,69%
7,69%
must be rejected.
Kitab al-Nikah page 11 .
pinion of Shaykh Muhammad Arshad al-Banjar.
: "It is haraam for a man to approach a married woman and a woman in 'iddah if he is aware of that and knows that it is haraam.
It is also haraam to go to a woman who is being proposed to by someone else, provided that the proposal is clearly accepted, and he is aware of the circumstances of the proposal and knows that it is haraam.
Looking at the 13 cases in table 1.
4 above, the panel of judges assessed the applicant's marital status as invalid, leading to the rejection of the application for child origins.
The panel of judges did not consider the rights of the child, the sense of justice and the benefit of the child.
It can be understood that the panel of judges tended to be very textual in understanding and using some of the legal basis above so that they only questioned the disability in the marriage of the parties/applicants.
The panel of judges did not pay attention to the fiqhiyyah rule, that the law in a region can change along with changes in the times, places, culture, and civilization of the region.
28 If they prioritize textual 28 As quoted by Hidayati and Hidayatullah from Ma'ylim Ushyl al-Fiqh 'Ind Ahl as-Sunnah wa al-Jamy'ah by Muhammad bin Husain bin Hasan al Jaizyny.
Tri Hidayati and Muhammad Syarif Hidayatullah, "The Urgency of the DSN-MUI Fatwa Regarding Sharia-based Financing Risk Management," Al-Manahij: Journal of Islamic Legal Studies 15, no.
2 (December 1, 2.
: 217, https://doi.
org/10.
24090/mnh.
See also Tri Hidayati et al.
, "Digitalization of Islamic Finance: Epistemological Study of the National Sharia Board- SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 161 understanding of Islamic law, it shows that Islamic law is rigid and not pro-social justice.
This certainly injures the values of divine justice taught in Islam.
Relevant to Zuhaily's opinion in Sodikin, that when justice comes from religion, then Islamic Law places God as the source of religion.
29 Likewise.
Askari and Mirakor emphasized that justice correlates with the level and extent to which a person obeys God's commands in a society with an overtly religious culture.
30 The concept of justice that is attributed to the divine teachings can be understood as an effort to maintain the obligation for the continuation of existence and the acquisition of grace in all aspects of life, because God's justice is basically His grace and goodness.
So many legal changes have occurred in Islam, especially in marriage law, which in essence is to maintain the religion of Islam itself .
ifz al-dy.
32 and the benefit of the people in order to live life properly according to Islamic law.
These legal changes in the context of the judiciary are realized by rechtsvinding or legal discovery carried out by judges which ultimately becomes jurisprudence which is included in one of the formal sources of law in the Indonesian legal system.
33 The process of legal discovery through ijtihad of Religious Judges, must go side by side with legal progressivity which in substance is responsiveness to social symptoms that occur and often change over time and advance the development of law and national civilization.
Ideal Legal Construction in Determining the Origin of Children from Fasid Marriage Progressive Legal Perspective The case of a petition for the origin of a child is a case that clearly arises from the marriage of a husband and wife who are only materially valid, therefore they need a religious court determination to fulfill formal legality to obtain a child's birth certificate.
Judges are part of the actors of judicial power in Indonesia who must be independent as intended by Law Number 48 of 2009 concerning Judicial Power in Article 5 states that judges must explore, follow and understand the values of law and a sense of justice that lives in society.
Judges can use the authority of Contra Legem, which can deviate from the provisions of written law if it is contrary to propriety and not in accordance with dynamic social realities, or find laws that do not yet exist or have unclear provisions in order to Indonesian Council of Ulama's Fatwa," Al-Ahkam 33, no.
2 (October 31, 2.
: 259Ae62, https://doi.
org/10.
21580/ahkam.
29 Ali Sodiqin, "Legal.
Moral, and Spiritual Dialectics in the Islamic Restorative Justice System," Ahkam:
Journal Sharia Science .
, http://journal.
id/index.
php/ahkam/article/viewFile/22675/9583.
30 Hossein Askari and Abbas Mirakhor.
Conceptions of Justice from Islam to the Present (Cham: Springer International Publishing, 2.
, ix.
, https://doi.
org/10.
1007/978-3-030-16084-5.
31 Zulkifli, "Demands for Justice in the Perspective of Islamic Law," 140-42.
32 The fulfillment of children's rights leads them to become good and dignified human beings.
In the language of maqasid al-syariah, it can be understood that hifz al-din .
reserving religio.
also includes the maintenance of aqidah .
, character building that will be felt horizontally by those around him, and fostering worship that strengthens him as a good being vertically.
Ahmatnijar Ahmatnijar et al.
, "When Religious Judges Protect Children's Rights: Case of Divorce in Padangsidempuan Religious Court," Al-Ahwal: Journal of Islamic Family Law 15, no.
2 (December 30, 2.
: 235, https://doi.
org/10.
14421/ahwal.
33 Kukuh Pramono Budi et al.
, "Adjudicating Joint Property Dispute in Islamic Jurisprudence: Balancing The Best Interests of The Child With A Focus on Residency," Syariah: Journal of Law and Thought 23, no.
245Ae66, https://doi.
org/10.
18592/sjhp.
34 Harifin A.
Tumpa, "Application of the Concept of Rechtsvinding and Rechtsschepping by Judges in Deciding a Case," Hasanuddin Law Review 1, no.
, https://doi.
org/10.
20956/halrev.
Id.
See also Muwahid, "Methods of Legal Discovery (Rechtsvindin.
by Judges in an Effort to Realize Responsive Law," The Indonesian Journal of Islamic Family Law, vol.
07, 2017.
Page.
162 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
realize justice, benefit and legal certainty for people's lives.
35 When judges are likened to legal spokespersons, progressive thinking can be an appropriate effort, because legal texts have weaknesses so it is necessary to understand the meaning behind the text.
The law should continue to develop towards better perfection.
This quality towards perfection is what is always sought and pursued by the panel of judges in seeking the truth to provide justice, legal certainty, and the welfare of the justice-seeking community.
Justice is the main goal in law enforcement, as a noble aspiration that develops along with the development of society.
37 According to Yahya Harahap, the judge's decision in principle is to resolve case disputes.
38 Through the judge's decision, it is hoped that the problems faced by the applicants and the applicant's children as seekers of justice in the religious court can be resolved.
By using contra legem, the judge must certainly have clear and sharp legal considerations from various other legal aspects.
39 According to Nasir Asnawi, the function of the Decision is also as a reformer, namely as a reformer in the normative order .
egal rules or norm.
and a reformer in the practical order .
he dynamics of law that occur in 40 This thinking led to the birth of progressive law in the Decision or determination of the panel of Judges, because Judges are required to not only consider juridical aspects, but also multidisciplinary aspects such as sociological, philosophical and historical aspects so that legal justice, public justice and moral justice in the decision / determination of the judge can be realized.
Even according to Bagir Manan, if the application of the law based on existing laws will cause injustice and harm to the community, then the judge is obliged to side with real justice .
oral justic.
and has the right to override the existing laws or rules of legislation .
egal justic.
A good law is a law that is in accordance with the living law in society .
he living la.
, which reflects local wisdom or values that exist and apply in a society .
ocial justic.
41 Therefore, judges have a very important role in legal policy or politics which always makes the court one of the objects of legal reform.
The judge's decision on the case of the origin of children from a fasid marriage becomes a legal product as well as a source of material law .
in Indonesia, so that judges are also law makers.
Based on the data of this research, there are three main problems that need to be examined, namely the legal consideration of the marital status of the applicants, the legal consideration of the application for the origin of the child from the fasid marriage, and the certainty of the use of child diction in the verdict.
In the context of legal protection of children, a progressive approach is needed in using legal arguments 35 Adi Nur Rohman, - Sugeng, and Hesti Widyaningrum, "Instrumentation of Ex-Officio Rights of Religious Courts Judge Related to Fulfilling Children and Wife's Rights Due to Divorce," Journal of Law & Development 50, no.
2 (September 28, 2.
: 369, https://doi.
org/10.
21143/jhp.
36 Suci Ramadhan and Jm Muslimin, "Indonesian Religious Court Decisions on Child Custody Cases:
Between Positivism and Progressive Legal Thought," JURIS (Sharia Scientific Journa.
21, no.
1 (June 10, 2.
92Ae93, https://doi.
org/10.
31958/juris.
37 Satjipto Rahardjo.
Progressive Law.
A Synthesis of Indonesian Law (Yogyakarta: Genta Publishing, 2.
, 71.
Nur Hidayah and Abdul Azis, "Implementation of Progressive Law in Sharia Banking Dispute Settlement:
Case Study of Religious Court Decisions in Indonesia," Ulumuna 27, no.
1 (June 26, 2.
: 227-57, https://doi.
org/10.
20414/ujis.
Muhammad Akbar, "Judges' Freedom to Make Progressive Decisions," Bilancia: 17, no.
: 155-70.
38 Yahya Harahap.
Civil Procedure Law (Jakarta: Sinar Grafika, 2.
, 859.
39 Ali Muhtarom dan Yuli Sutoto Nugroho.
AuGrants as a Model of Inheritance Prospective Distribution in the Coastal Santri Community,Ay Al-Ahkam 32, no.
Oktober 2.
: 169, doi:10.
21580/ahkam.
40 M.
Nasir Asnawi.
Hermenetics of Judges' Decisions: A Civil(Yogyakarta: UII press, 2.
, 74.
41 Imam Mustofa.
AuDampak Putusan Mahkamah Konstitusi Mengenai Pasal 43 Ayat .
Undang-Undang Nomor 1 Tahun 1974 Terhadap Hukum Keluarga Di Indonesia,Ay Al-Manahij: Jurnal Kajian Hukum Islam 6, 2 .
: 287, doi:10.
24090/mnh.
42 Bagir Manan in Suad Fikriawan.
Syamsul Anwar, and Misnen Ardiansyah, "The Paradigm of Progressive Judge's Decision and Its Contribution to Islamic Legal Reform in Indonesia," Al-Manahij: Journal of Islamic Legal Studies 15, no.
: 256.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 163 for judges in making a determination of the origin of children from a failed marriage in the Religious Court.
43 The legal construction in question does not mean to rule out the existence of laws and regulations that are already in force but rather so that judges can consider juridical aspects, sociological aspects, and philosophical aspects in preparing legal There are several juridical foundations that must be taken into consideration by the panel of judges in deciding the case of an application for the origin of children in the Religious Court, namely:44 The 1945 Constitution of the Republic of Indonesia The right of children to live a decent and respectable life is regulated in Article 28B Paragraph .
and Article 28I Paragraph .
of the 1945 Constitution.
Every child has the right to live and develop optimally, to be protected from violence and discrimination, the right to freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of retroactive laws are human rights that cannot be reduced under any circumstances.
All of these rights must be possessed by children, regardless of the quality of the legality of their parents' marriage.
The panel of judges should consider children's rights to legal status and equal justice before the law.
There are only two legal statuses of children, legitimate children and illegitimate children.
This constitutional norm also has the consequence that if the application for the origin of the child is accepted or granted by the panel of judges, then the legal status as a legitimate child must be given to the applicant child, he must be treated equally before the public.
Law Number 1 of 1974 Concerning Marriage Marriage issues carried out by Muslims in Indonesia are specifically regulated in the Marriage Law .
ege speciali.
, while what is regulated in the Compilation of Islamic Law is an elaboration of the Marriage Law so that if there are still doubts for the panel of judges in understanding the provisions of marriage in the Compilation of Islamic Law, it must be returned to the Marriage Law.
The annulment of marriage or rejection of Itsbat nikah by the Panel of judges should not apply retroactively to the existence of their children.
In accordance with the provisions of Article 28 of the Marriage Law, the status of the children of the Plaintiffs must be returned to the status of the validity of the marriage believed by the parties involved, because this is a form of legal justice that has been regulated in the Marriage Law.
granting the origin of the child from the Fasid marriage, even though the parents' marriage was annulled due to problems, this provides basic protection rights for these children, where children who are born pure and clean do not accept and bear the sins or mistakes of their parents, legal justice is truly realized for the child.
Furthermore.
Article 44 Paragraph .
gives the husband the right to refuse to recognize a child born by his wife, if he can prove that his wife had an affair and the child is the result of the affair.
Against this provision, it needs to be understood more broadly, namely that as long as no one denies the legitimacy of the child of the Plaintiffs, then it should be considered as their legitimate child, because if you pay attention to the provisions 43 Zainal Azwar dkk.
AuChild Filiation and Its Implications on Maintenance and Inheritance Rights: A Comparative Study of Regulations and Judicial Practices in Indonesia.
Malaysia, and Turkey,Ay Journal of Islamic Law 5, no.
Februari 2.
: 62, doi:10.
24260/jil.
44 Ali Imron dkk.
AuBaby Engagement within the Traditional Ulama of the Madurese Ethnicity: A Malaua Analysis,Ay Ijtihad : Jurnal Wacana Hukum Islam Dan Kemanusiaan 23, no.
: 261,
doi:10.
18326/ijtihad.
45 Khaeron Sirin.
AuAspek Pemidanaan Dalam Hukum Perkawinan (Analisis Terhadap Perkawinan Yang Tidak Dicatatkan Di Indonesia,Ay Al-Risalah: Forum Kajian Hukum Dan Sosial Kemasyarakatan 12, no.
10, doi:10.
30631/alrisalah.
164 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
of Article 44 Paragraph .
which means that the Court has the authority to determine whether a child is legitimate or illegitimate at the request of the parents or other interested parties.
Therefore, the simple interpretation in relation to Paragraph .
is that the status of illegitimate children is determined only for children resulting from adultery, not for children resulting from marriages with material, formal or both problems, because the substance of the marriage cannot be aligned with adultery.
The issue of the validity of the marriage of the child's parents is indeed one of the basic considerations in resolving the case of determining the origin of the child in the Religious Court, but it is not the main element in accepting or rejecting the application.
The most important thing is the existence of the child with his parents, whether the child is truly recognized by both parents as their biological child, whether this child has been well cared for by the petitioners, and the absence of other parties who object to the status of the child if it is determined to be the legitimate child of the Petitioners.
This is justified in accordance with the concept of Islamic law, namely the term child recognition .
and the Civil Code procedure with the term Recognition of children outside marriage.
Law Number 39 Year 1999 on Human Rights Indonesia is a rechtstaat or state of law, therefore ratification of the Human Rights Convention is a must in every regulation issued by the State, including the Supreme Court and its jurisprudence.
The Human Rights Law is an elaboration of the Human Rights provisions set out in the Indonesian constitution, namely in the 1945 Constitution.
The existence of this Law is a clear alignment of the state towards the protection of children's rights, especially as stipulated in Article 52 Paragraph .
, which means that children have rights that are part of human rights, so it is important for the law to recognize and protect children's rights, even from the womb.
Article 53 Paragraphs .
state that every child has the right to live, maintain their life, and improve their quality of life since they are still in the womb.
The state also guarantees a child's right from birth to have a proper name and appropriate citizenship status.
The judges are not only the 'representatives of God' in the world, but also as a father or a mother who has a child so that sociologically and psychologically they can feel the spiritual atmosphere of the parties who have difficulty obtaining guarantees for the basic rights of their children.
Law Number 23 Year 2002 on Child Protection Indonesia is a state of law, which applies protection to human rights for its citizens, as well as in Islamic law which protects the rights of the people and pays attention to the problems of the people.
Therefore, the Child Protection Law must be one of the main juridical bases by the panel of judges in considering accepting the case of determining the origin of children in the Religious Court.
Article 2 of the Child Protection Law is an important norm to note, that judges should consider the best interests of the child, even though the parents' marriage is a problematic marriage.
Furthermore, to ensure the implementation of the protection of children's rights and welfare, the status and identity of children must be legalized .
n the form of birth certificate.
as stipulated in Article 27 Paragraph .
and Paragraph .
of the Child Protection Law, and progressive judges' considerations do not look back by reconsidering the issue of the validity of their parents' marriage, but must look forward to the benefits and best interests of children.
Al-QurAoan Surah Al-AnAoam Verse 164 Allah SWT in the Qur'an Surah Al-An'am Verse 164 has emphasized that the actions carried out by a servant the consequences are only accepted or charged to that servant.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 165 Each individual is responsible for his own sinful deeds, and will not be held accountable for others.
Therefore, in the context of fasad marriage, the problems of a marriage must be borne by the person concerned .
, not to be a burden for their children.
Hadith of the Prophet Muhammad narrated by Imam Bukhori (HR.
Bukhori.
No.
AEE IOE OOE EO EAA
This hadith explains that every child is born in a state of fitrah or purity.
The purity of this child is a right that must be understood by everyone, especially by Religious Judges that the child cannot be charged with the fault of his or her parents, even if the parents' marriage is declared rejected or fasid by the Religious Court.
Doctrines of Jurisprudence The fiqh doctrines referred to here are Islamic law which in substance states that the child born of the parents, who require recognition of the petitioners' application to the Religious Court is a child who really comes from them .
ot the child of adultery of the petitioner.
, regardless of the problematic ikhtilaf furu'iyyah.
Islamic law .
must be able to adjust and accommodate dynamic changes in society through the process and products of ijtihad.
47 In the current context, ijtihad can be explained as a progressive effort to update the existing provisions in the Qur'an or Sunnah.
This is done so that both can accommodate new situations and conditions, by providing solutions or legal rules that are in accordance with the times.
48 Elasticity of fiqh has actually occurred since long ago, even the differences in the laws formed by the scholars of the madhhab itself are historical evidence that there have been changes in the law among the Imams of the Mazhab.
Based on the data above, it was found that judges who rejected the application for the origin of children from fasid marriages were because the judges were still textual, so that in the arguments of consideration they were still bound by the facts of the marriage of their parents that had occurred in the past which was problematic without paying attention to justice and the problems that the children would face later.
Meanwhile, the judge who granted the application for the origin of children from the fasid marriage tried to find the law by taking the basis of his consideration out of the texts of existing laws that were no longer relevant to the fundamental interests of children.
The judge's consideration of granting the application for the origin of the child is in line with the concept of progressive law.
By granting the origin of children from this fasid marriage, it guarantees justice and benefits for children and the legal norms formed in the stipulation are truly responsive, provide benefits for the parties and society, and reject greater harm, so that the values of justice will truly be realized, not only for the parties, but also for children and In principle, the determination of giving birth to progressive law is like Satjipto Rahardjo's thinking that progressive law places the law not as a final scheme, but the law 46 Imam al- Bukhari.
Shahyh al-Bukhyri (Beirut: Dar Ibn Katsir_al-Yamymah, 1.
, 456.
47 Badruddin Badruddin and Aditya Prastian Supriyadi, "The Dynamics of Indonesian Islamic Law : Islamic Norms in Reasoning Positive Law Responding to Contemporary Socio-Cultural Era," De Jure: Journal of Law and Shar'iah 14, no.
1 (June 29, 2.
: 38Ae57, https://doi.
org/10.
18860/j-fsh.
48 Hidayah and Azis, "Implementation of Progressive Law in Sharia Banking Dispute Settlement".
Diky Faqih Maulana and Abdul Rozak, "Istihsan as a Finding Method of Progressive Islamic Law in the Industrial Revolution Era El-Mashlahah (December 127-45, https://doi.
org/10.
23971/elma.
Imam Asmarudin, "Struggle of Legal Positivism Versus Progressive Thoughts in the Formal Tests of the Job Creation Act (Legal Development through Hermeneutic.
," Journal of 22, no.
: 124-43.
166 | Fitriyadi.
Ahmadi Hasan.
Akhmad Sukris Sarmadi.
Tri Hidayati.
Redefining Legal Frameworks: Progressive Methods in Ascertaining ChildrenAos Lineage from Fasid Marriages in Religious Court.
continues to move, change, following the dynamics of human life.
Law is not seen as something that lives in a vacuum.
Law is born from the provisions that live in society .
bi societas ibi iu.
On that basis, the law must continue to be dissected and explored through progressive efforts to reach the ultimate truth for the sake of justice.
49 The construction of progressive law in determining the origin of children in this fasid marriage is by making legal norms that are in accordance with the facts of legal development in society, by granting the application for the origin of children in a fasid marriage so that it will become jurisprudence on the basis of considering the future, moral and social interests of children without violating or injuring the provisions of Islamic law that are qath'i.
By considering the regulations and doctrines of the Islamic law that are already qath'i.
By considering the regulations and fiqh doctrines as explained above, it is certain that progressive, just and maslahat decisions of the panel of judges will be born in examining, deciding and adjudicating cases of Child Origins in the Religious Courts, especially in the South Kalimantan region.
CONCLUSION
Based on the results of the above research, it can be concluded that the decision of the Religious Courts in the South Kalimantan region on the application for child origins is divided into two, namely rejection and granting by the judge.
The legal considerations of the panel of judges who accept in general are for the benefit of the child's future with the argument of the Child Protection Law, and the opinion of Wahbah az-Zuhaily .
ontemporary fiqh scholar.
that children from fasid marriages are legitimate children of their parents.
However, the diction used by the panel towards the status of the child is different, namely child, legitimate child, biological child and biological child.
The legal considerations in rejecting the application for the origin of the child generally based their legal basis on Law No.
1/1974 and the Compilation of Islamic Law, which basically states that a legitimate child is born from a legal marriage, at least materially valid, while a fasid marriage is considered an invalid marriage both materially and formally.
The ideal legal construction in the decision to determine the origin of the child by the judge of the Religious Court in the jurisdiction of the Banjarmasin High Religious Court from the perspective of progressive law is to postulate a legal basis related to the future interests of the child consisting of the 1945 Constitution Article 28B Paragraph .
and Article 28I paragraph .
Marriage Law Article 44 Paragraph .
Human Rights Law Articles 52 and 53.
Child Protection Law Article 27 Paragraph .
Al-Qur'an Surah AlAn'am Paragraph 164, and Hadith of the Prophet SAW (HR.
Bukhori.
No.
as well as fiqh doctrines that accommodate dynamic changes in society.
The fasid marriage is not due to a deliberate act of defying the laws of Allah SWT and the laws of the state, but rather due to the negligence and ignorance of the applicants of the applicable legal rules.
The logical consequence of accepting the petition is to determine that the petitioned-for child is the legitimate child of the petitioners.
Based on the above conclusions, the author recommends, namely: First, the government should be able to reconstruct marriage law related to the issue of children's rights contained in legislation, so that the Supreme Court has legal reasons to be able to modify the law related to children contained in the Compilation of Islamic Law, or through Supreme Court Regulations.
Decrees of the Chief Justice of the Supreme Court or Supreme Court Circular Letters.
Religious Judges should be able to consider aspects of legal justice for children, social aspects in the lives of children, as well as the 49 Muh Ridha Hakim, "Implementation of Rechtsvinding Characterized by Journal of Law and Justice 5, no.
: 229, https://doi.
org/10.
25216/jhp.
SYARIAH : Jurnal Hukum dan Pemikiran Volume 24.
No.
June 2024 | 167 purpose of establishing a rule of law, in considering the status of children born from a fasid marriage.
Thus, legal progressivity in examining, deciding and adjudicating the case a quo can be considered to be applied as a paradigm frame regarding the validity of the status of children from fasid marriages.
and third, further researchers can examine and develop the issue of legal construction of determining the origin of children from other angles and contexts so that science and legal studies related to the origin of children can develop comprehensively which in turn can present legal constructions that are able to represent the values of justice for both the applicants and the applicants' children from all aspects of life.
Third, this research has not revealed more about the rejection of Religious Court judges on the application for the origin of children who are not from a fasid marriage .
aterially vali.
, such as children from polygamous marriages and children of pregnant marriages whose gestational age does not reach 6 months.
For this reason, further studies are needed in various perspectives or scientific disciplines comprehensively in order to present progressive legal reforms that carry the values of justice for both the applicants and their children.
REFERENCE