Court: Child outside the Marriage Still Has Civil Relations with His/Her Biological Father

mahkamahkonstitusi.go.id, friday, 17 February 2012

The Constitutional Court (MK) decided to keep children out of wedlock have a civil relationship with a man who can be proven by science and technology and / or other evidence under the law turns out to have ties of blood as his father. Decision of the Court with a number 46/PUU-IX/2011 was read by the Chairman of the Constitutional Court, Moh. Mahfud MD with other constitution was accompanied by eight judges on Friday (17/2) at the Plenary Court Room.

"Article 43 paragraph (1) of Law No. 1 of 1974 on Marriage, which states,"a child born outside marriage has only a civil relationship with his/her mother and his/her family ", has no binding legal force meant eliminating all civil relationships with a man who can be proven by science and technology and / or other evidence under the law turns out to have ties of blood as his/her father, so that the paragraph should read, "A child whom is born outside marriage has a civil relationship with his/her mother and his/her family as well as a man as a father who can be proven by science and technology and / or other evidence under the law to have a blood relationship, including a civil relationship with his/her father’s family, ‘"said Mahfud read the verdict.

In the opinion of the court which was read by Judge Ahmad Fadlil Sumadi, constitution law regarding the subject matter of children born outside of marriage is the legal meaning the phrase "born out of marriage". Naturally, further Fadlil, it is not possible for a pregnant woman without the occurrence of a meeting between the ovum and the sperm through sexual intercourse (coitus) or through other means based on technological developments that lead to conception. Therefore, said Fadlil, inaccurate and unfair when the law stipulates that a child born of a pregnancy due to sexual relations outside of marriage just to have a relationship with the woman as mother.

"It is inappropriate and unfair if the law also frees a man who had sexual intercourse leading to pregnancy and birth of the child from his responsibilities as a father and with it negates the legal rights of the child to the man as a father. The more so when based on existing technology enables the development can be proven that a child is a child of a particular male. The legal consequence of legal events of births due to pregnancy, which is preceded by a sexual relationship between women with man, is a legal relationship in which there are rights and obligations as opposite sides, are subject jurisdiction of children, mothers, and fathers." Fadlil said.

Based on the above, explain Fadlil child relationship with a man as the father was not solely because of the marriage bond, but can also be based on proof of blood relationship between the child with the man as the father. Thus, apart from the matter of procedures / administration of marriage, a child born should receive legal protection. "If not, then the aggrieved is a child born outside marriage, even though the child is not guilty because of his birth in spite of himself. Children who are born without fathers have clear status often get unfair treatment and stigma in the society. Law should provide protection and legal certainty that justice to the status of a child born and rights available to him, including that of children born though still disputed the validity of his marriage, "he explained.

Fadlil explained based on all the considerations above, the Petitioners’ argument as far as Article 2, paragraph (2) of Law 1/1974 is not unreasonable under the law. "As for Article 43 paragraph (1) of 1/1974 which states," Children who are born outside marriage has only a civil relationship with her mother and her family ‘is contrary to the 1945 conditionally (conditionally unconstitutional) that is unconstitutional throughout the verse meant eliminating civil relationship with a man who can be proven by science and technology and / or other evidence under the law as his father had a blood relationship, "he explained.

In the decision, the Constitutional Justice Maria Farida Indrati expressed a different opinion (concurring opinion). In her opinion, she reveals the potential loss is reinforced by the provisions of Article 43 paragraph (1) of 1/1974 which states, "Children who are born outside marriage have only a civil relationship with her mother and her family". This is the risk of marriage that is not recorded or marriage that is not carried out according to Law 1/1974, but it is not in place when the child should bear the losses caused by the action (marriage) of his parents.

"If it is considered as a sanction, the law of the state and the religious law (in this case Islam) does not recognize the concept of the child shall bear the penalty due to the actions taken by both parents, or known by the term" derivative of sin ". In other words, the potential losses due to marriages conducted in accordance with Law no 1/1974 is a risk for men and women who perform marriages, but not the risk to be borne by the children born within marriage. Thus, in my opinion, the fulfillment of the rights of children born of a marriage, regardless of whether or not the marriage is valid under state law, remains the obligation of the biological parents," he said.

(Lulu Anjarsari / mh/Yazid.tr)