A. Understanding Nasab
Etymologically, nasab comes from Arabic, namely, َسَبََ- َسْبِبَُ- نَسِبََ, if there is the sentence َسَب َ ال َسَبََ it means showing characteristics and mentioning one's descendants. It can be concluded that the word lineage according to language is descent, or relatives. Nasab according to the Big Indonesian Dictionary (KBBI), is defined as descent (especially from the father's side) or family ties. In the Islamic Encyclopedia, nasab means descent or kin, namely family ties through a valid marriage contract.
B. Understanding Children Out of Wedlock According to Islamic Law
An illegitimate child is defined from the perspective of Islamic law as a child born without a marriage bond. An illegitimate child, in simple terms, is defined as a child born to a woman, while the woman is not in a legal and religious marriage with the man who impregnated her. What is commonly called a child of adultery, includes marriages that occur and do not meet the requirements and If the marriage is harmonious, the child she gives birth to is also categorized as a child of adultery. Children born outside of marriage are also called "naturlijk kind". Islamic law also stipulates that children out of wedlock are:
1. Li'an's child
A child born to a woman in a legal marriage, but denied by her husband through an oath of li'an or in other words a child born to a woman who was dili'an by her husband.
2. A doubtful child
Children born from shabby relationships. There are two forms of this syubhat relationship, namely:
a. Syubhat in action (deeds), namely when a man interferes with a woman without any agreement between the two of them, whether legal or false, simply because he was not aware when doing so, or he believed that the woman was halal for sexual intercourse, but then it turned out that the woman was a woman which is haram to have sex with.
b. Syubhat in the contract, namely when a man carries out a marriage contract with a woman as with any other valid marriage contract, but then it turns out that the contract was false for one reason or another.
C. The Position of Illegitimate Children According to Islamic Law
Basically, discussing the position of illegitimate children according to Islamic law means discussing the position of the child towards his father. The position in question is whether or not there is a birth connection between the child and his biological father, so that
it can be determined whether he is a legitimate child with all legal rights and consequences or vice versa. The position of a child towards its mother immediately applies because of birth, whether the birth is the result of sexual intercourse which is in accordance with the sharia or which violates the sharia.
Islam teaches that children who are born legally in accordance with the provisions of Islamic teachings have a good and honorable position. The child has a relationship with his father and mother. The conclusion is that a child can be linked to his father if he is born from a legal marriage. Meanwhile, children born outside of a legal marriage or children of adultery cannot be connected to their father, but only to their mother.
Family relationships are blessings, and blessings are not given by Allah as a result of actions of Jarimah. Meanwhile, children outside of marriage come from sperm that is not respected according to Sharia.
All schools of thought agree that the lineage of a child of adultery cannot be linked to his father. They are of the view that illegitimate children do not have a legitimate lineage according to Sharia. The basis for this opinion is:
Allah's blessings: Allah's blessings )ْلس وهاخِش شَور لَاَاَفِش لَلِهاَفْلِ اَ لِشاَلِفْلِ ُ
Meaning: "The Prophet SAW said: The child that is born is assigned to the husband, while for the perpetrator of adultery it is a stone."
The status of children out of wedlock according to positive law as in Law No.1 of 1974 article 43 paragraph (1) states that children born out of wedlock only have a civil relationship with their mother and her mother's family.
The scholars agree that adultery is not the cause of a child's lineage relationship with the father, so that children resulting from adultery should not be connected to the father's lineage. Even though biologically it comes from the seed of a man who commits adultery with his mother. The scholars give the reason, namely that lineage is a gift and a blessing, while adultery is a criminal act that does not deserve a reward at all, but a reward in the form of punishment, whether stoning, or lashing a hundred times and banishment. There is also a strong reason for this, namely the words of the Prophet in a hadith:
God willing, God willing, God willing, God willing, God willing ِشا َرِفْلِل ُدَل َوْلا َلاَق َمًلَ
ُرَجَحْلا ِرِهاَعْلِل َو Meaning: "From Abu Hurairah, the Messenger of Allah actually said: "The child is for those who sleep with their wives (legally), namely the husband, while for adulterers he is only entitled to stones." (HR. Muslim).
The above hadith has been agreed upon by the ulama on the grounds that adultery will have absolutely no effect on the causes of the fate of the child and the biological father who committed adultery with the mother. In several juridical aspects, the man who is biologically the biological father is in the position of another person, so he is not obliged to provide maintenance, there is no inheritance-inheritance relationship, even if the child of adultery is a girl, the biological "father" is not the guardian in his daughter's marriage. , because there is no relationship between the two at all in Islamic law. Because her biological father cannot be the guardian who will marry her, the guardian in the marriage contract is the judge's guardian.
Ibn Hazm is of the opinion that a child resulting from adultery cannot be related to his father, but he has a lineage to his mother, the reason is the Prophet's action in linking the child's lineage to the mother who had been li'an to her husband, not to the father, because the birth was experienced by a woman. Both halal and haram remain as causes for the emergence of lineages. So the child's lineage is only to the mother, not including the biological father. And based on Allah's words in Surah An-Najm verse 38:
ىرخأ رزو ةرزاو رزت لاا Meaning: "(namely) that a sinner will not bear the sins of others."
Therefore, the child must be treated humanely, given education, teaching and skills that are useful for his future life in society.
1. Nasab Status
The legal position for the child of adultery is not to be punished by the man who committed adultery against his mother. He does not follow the line of the man who owned the sperm that caused his birth, but his line follows that of the mother who gave birth to him. So this also results in the loss of the child's rights to the father. Between the two is as another person.
The scholars have agreed regarding the continuity of the nasab relationship of a child born in a valid marriage. However, they differ in their opinion regarding whether the line-of-breed relationship remains solely because of the marriage contract without any sexual intercourse involved.
Some scholars are of the opinion that the marriage contract is the main cause of the relationship between a child and his parents. If a pregnancy occurs without sexual relations between husband and wife, the child can be assigned to the father. As explained by Imam Abu Hanifah as follows.
"Indeed, a valid marriage contract automatically becomes the cause of the continuity of a child's lineage, even though in that marriage the husband and wife never met at all.
So if there is a marriage where the wife is in the west end and the husband is in the east end and the marriage between the two is only by letter, then the wife gives birth to a child, then the child's lineage is connected to the father, even though they never met at all after the contract took place."
Jumhur fuqaha is of the opinion that marriage contracts and sexual relations (dukhul) are the causes of cross-breed relationships. Then, if a birth occurs before at least six months after the contract takes place, the child cannot be linked to his father. Thus, dukhul is the main cause of the emergence of a lineage relationship apart from a valid marriage contract between the parents.
From the two opinions above, it can be concluded that a child who is pregnant out of wedlock, then the mother marries the person who impregnated her and at least six months from that time her lineage can be linked to her father. In this way, the child becomes a legitimate child and all provisions that apply to legitimate children apply to him.
The stipulation that the wife gives birth to her child at least after 6 months have passed from the contract, is the minimum pregnancy period according to Islamic law.
Meanwhile, the longest pregnancy period for a woman has no clear text in the Qur'an and Sunnah. The opinions of the fuqaha regarding this matter vary from 9 months according to the Dzahiri school of thought, 1 year according to Muhammad bin Abdul Hakam Al- Maliki, 2 years according to the Hanafi school of thought, 4 years according to the Syafi'i school of thought and 5 years according to the Maliki school of thought. In the author's opinion, the opinion of the Dzahiri school of thought is the closest to the habits/experiences of pregnant women based on reality and empirically.
2. Inheritance Status
Islamic law does not stipulate a relationship of inheritance between an adulterous child and the father (the man who impregnated her), because the adulterated child does not have a kinship relationship with him. Meanwhile, kinship relations arise on the basis of a valid marriage contract as determined by Islamic law. But a child is related to his mother and his mother's relatives and he has the right to inherit from his mother and his mother's relatives. There is no recognition and validation of children of adultery, because Islamic law only recognizes legitimate children according to sharia.
According to Ahlu Al-Sunnah, children of adultery have an inheritance relationship with their mother and their mother's relatives only. Thus, he can only be an heir for his mother and his maternal relatives, not for his grandmother, because the child of adultery for the grandmother is the child of her daughter and according to this group the child of the woman is not an heir, except in terms of Zul Arham's heirs.
Furthermore, the Shiite group is of the opinion that: the child of adultery has no inheritance relationship with the man who impregnated her or with the man's relatives, as is the case among the Ahlu Al-Sunnah ulama. However, unlike them, the Shiites believe that the child of adultery has no inheritance relationship with his mother. The reason is that inheritance rights are a blessing, while adultery is an immoral act. Favor cannot be based on the immoral act of adultery.
From the description above, it can be concluded that there is no inheritance relationship between the child of adultery and his father. As a way out in this case, the relationship between an adulterous child and the father who impregnated her can be connected through a gift or will, if the father is responsible for his actions which caused the birth of the child, because in Islamic law it is known as a gift and a will. This provision only applies to children born outside a valid marriage.
D. Legal Status of Illegitimate Children According to Indonesian Law
In the Compilation of Islamic Law, CHAPTER And in Marriage Law no. 1 of 1974 CHAPTER IX concerning the position of children article 43 reads:
(1) Children born out of wedlock only have a civil relationship with their mother and her mother's family.
(2) The position of the child referred to in paragraph (1) above will then be regulated in government regulations.
MK Decision Number 46/PUU-VIII/2010 namely:
a. An illegitimate child can be proven by science if the child is related by blood to the father.
b. If it is proven based on science to be an heir, the child has the same inheritance rights as other heirs.
c. There are no regulations implementing the Constitutional Court's decision, so there is still a legal vacuum regarding how illegitimate children can be guaranteed that they will receive their inheritance.
d. The progress made by the Constitutional Court's decision after providing evidence through scientific knowledge of other heirs cannot deny the existence of this illegitimate child. Because scientifically speaking, illegitimate children are the children of the heir.
e. An inheritance certificate can be made, but problems may arise in the administration of the inheritance certificate
