A Critical Appraisal of the Right of Inheritance of Children Born Out of Wedlock

Ajanwachuku, Michael Akpa

doi:10.20956/halrev.v1i1.192

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“…The DNA test was exerted in the legal development in Nigeria to establish the paternity of the children born out of wedlock and assigned their right of inheritance. [22] The ICC decree number 46/PUU-VIII/2010 also indicated that the paternity of the children born out of wedlock can be concluded by means DNA test in lieu of the acknowledgment of the father provisioned by BW. It can be concluded that based on maqasid al-shariah, the children born out of wedlock, whether the legitimate and illegitimate children have the right to obtain their inheritance from their mothers and fathers as well as their parent's family.…”

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confidence: 99%

The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

Mahmudi¹

2018

Proceedings of the 1st International Conference on Indonesian Legal Studies (ICILS 2018)

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The discourse on the right of children born out of wedlock, especially concerning their rights towards their biological fathers is a hot topic triggering heat debate among scholars. Orthodox Muslim scholars had unanimous opinion denying their lineage towards their fathers while human right activists contended that they should enjoy the same benefits as those of children born of the wedlock. They based their opinion on the Universal Declaration of Human Rights and the United Nations Convention on the Right of Child. This paper focuses on the examination of the Constitutional Court decree Number: 46/PUU-VIII/2010 concerning with legal status of children born out of wedlock. The study will delve into the reasons behind the decree and analyze them according to Islamic law, especially by the objectives of sharia (maqasid al-shariah). The maqasid al-shariah assumes that Islamic law is a linked system consisting of multi-dimensions aspects strengthening each other. Therefore, based on maqasid al-shariah, the examination of children born out of wedlock should regard international, national as well as Islamic law. The examination also regards various aspects for instances: justice, welfare, psychology, and social status of the children and their mothers. These multi-dimensions of life were employed in issuing the legal decree concerning with the children born out of wedlock. The results from this study show that first, the reason behind orthodox s of Islamic law not to associate the lineage of children born out of wedlock towards their biological father is that they lacked evidence as those of their mothers such as pregnancy, birthing, and suckling. Second, based on the constitutional decree, the lineage of children born out of wedlock should be established toward their father, and the children should enjoy the rights towards their fathers to the extent that the legitimate children did. They also have the right of inheritance towards not only their mothers but also their biological fathers as well as their parents' families.

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Section: ]mentioning

confidence: 99%

The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

Mahmudi¹

2018

Proceedings of the 1st International Conference on Indonesian Legal Studies (ICILS 2018)

View full text Add to dashboard Cite

show abstract

A Critical Appraisal of the Right of Inheritance of Children Born Out of Wedlock

Cited by 1 publication

References 0 publications

The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

The Status of Children Born Out of Wedlock in Indonesian Context with Special Reference to Their Inheritance Right Perspective of Maqasid Al-Shariah

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