The Lineage Status of Children and Pregnant Women Outside Marriage in Law (Islam & Conventional) by Gender Perspective

Abstract

The increasing case of children born out of wedlock or to parents who have committed adultery is the background of this research. This is because there are people who still tarnish the meaning of marriage by committing adultery or having sex outside of marriage, causing a problem known as pregnancy outside of marriage. What is new relates to the legal status of their children, which can be communicated to society as a whole or legal experts about the legal status of children or the validity of marriages, especially in matters of guardianship. The research findings show that, although the civil court decision of the Constitutional Court separates a child who commits adultery from his biological father, the issue of guardianship in the marriage of a child who commits adultery is not discussed explicitly. As a result, children born out of wedlock do not have any rights over their parents, in this case, rights with the biological father, even though there is already evidence to show it (DNA test). This is stated in Article 43 paragraph 1 of Law No. 1 of 1974. According to religious and conventional law, children born out of wedlock do not have any legal rights because they only have a relationship with their mother and do not have blood relations (lineage) with the man who is her biological father. Such as the right to maintenance, guardianship rights over daughters, and the right to mutual respect. When viewed from a gender perspective, this is very detrimental for the child and the woman and tends to benefit the man or father for the child.