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All Journal Demokrasi: Jurnal Riset Ilmu Hukum, Sosial dan Politik
Valensi Aliya Zahira
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Law, Crime, Criminology & Criminal Justice Social Sciences

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Analisis Kritis Terhadap Putusan Mahkamah Konstitusi No.46/PUU-VIII/2010 : Hubungan Nasab dan Keperdataan Anak di Luar Nikah dalam Perspektif Maṣlaḥah Valensi Aliya Zahira
Demokrasi: Jurnal Riset Ilmu Hukum, Sosial dan Politik Vol. 2 No. 2 (2025): Demokrasi: Jurnal Riset Ilmu Hukum, Sosial dan Politik
Publisher : Asosiasi Peneliti dan Pengajar Ilmu Hukum Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62383/demokrasi.v2i2.878

Abstract

Nasab is a fundamental concept in Islam that determines a child's relationship with the father, which then affects guardianship rights, inheritance, and family relationships. The preservation of lineage is one of the main objectives of Maqāṣid sharia because it has significant legal, social, and moral implications. Constitutional Court Decision No. 46/PUU-VIII/2010 recognizes the civil relationship between an extramarital child and his biological father if it can be proven by technology or other valid evidence. This decision is in accordance with the concept of nasab in Islam but is not recorded by the state. This study examines the concept of nasab and civil status of out-of-wedlock children in Constitutional Court Decision No. 46/PUU-VIII/2010 from the Maṣlaḥah perspective. Using a juridical-normative approach and descriptive analysis, this research is based on sources, including court decisions and legislation, as well as secondary literature discussing Maṣlaḥah. The results show that the decision is in line with the concept of Maṣlaḥah in Islam. The suitability of the Constitutional Court's decision with the concept of maslahah is based on the status of the applicant's marriage as religiously valid. Decision No. 46/PUU-VIII/2010 is not appropriate when used as jurisprudence for children born outside a legal marriage or can be called adulterous children.
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