Assignment on Birth out of Wedlock

Assignment on Birth out of Wedlock

Custody of Wedlock Children

Who have the right to take care the wedlock children?

Illegitimate child in the Arabic term is called [1] al-walad adultery means a natural child or children born out of wedlock. The jurists' and Muzakarah Fatwa Committee of the National Council (MKI) in 27 July 2004 consensus that it is referring to children born of adultery and not the result of a valid marriage or [2]syubhah intercourse (sexual intercourse by men and women who thought they were husband and wife valid). The issue on out of wedlock children in Malaysia has become a common social problem and the stories about abandoned babies often get major coverage in the newspapers. [3]Statistics from the birth of an illegitimate child National Registration Department in 2000 until July 2008 show a very large number, which are 155.744 babies. So, what happen to the innocent baby? Who should take care of them? According to the Family Law Act of Islam 1984 (Act 303) section 85 provides that: Custody of illegitimate child is solely in the mother and her relations. This provision is consistent with the requirements of Islamic Law which establish the relationships of consanguinity (offspring) only with his mother. This position is certainly provides the right care to her mother or other family members. Illegitimate child is not a man of idle and no dignity as supposed by some people. Even the religious view and the law, he had the full protection of the mother, his mother's family and government.[4] The Prophet said: "Children are the (owner) of the overlays. For adulterers nor is al-Hajr". So, in this case the mother have more responsible to custody the children either she want or not. Although the natural father is the biological father of the child, the child himself will be attributed to his mother not his father. Thus, the child is entitled to inheritance from his mother only. The relationship of consanguinity illegitimate child with a mother and a member of the family are not broken. Therefore, the responsibility of keeping children is the rightful responsibility of the mother and family members on the mother.

Ways to custody the wedlock children based on the Law and Islamic perspective.

[5]Since the women or mother takes the responsibility, she has to do her duty to offer[6] nafkah to the children. [7]This is as stated in Section 80 of the Islamic Family Law Act 1984 which provides for the Federal Territory Duty to maintain its illegitimate child, if a woman neglects or refuses to maintain the out of wedlock son who is unable to maintain himself, the court may upon proof duly ordered the woman to make any allowance that the Court considers reasonable. But, from Islamic perspective, Allah will not put the burden of any person beyond what He has given. [8]“Let the man of means spend according to his means: and the men whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. After a difficulty, Allah will soon grant relief”. This ayah can ensure the mother to take care of the illegitimate children, there is no more reason for not to custody the children. However, the family also should give support to make sure the out of wedlock children will not be neglected. This is because nowadays teenagers abandoned their baby without thinking of the baby has a right to live. Most of the girls are not aware of the responsibilities which have been outlined by the Islam view and the government how to take care of the children out of wedlock. A mother should take care the baby with full of love although he or she is illegitimate children. The baby is not guilty and still has the right on privileges, benefits, welfare, educations and can perform daily activities as other children. [9]Syed Sabiq has stated that “Surely all guardians and child care have the individual right. But the right of the child or the child benefit is more important than the rights of his guardian”. It is not only for the guardian but the government also must be concerned about the welfare of children and request from the mother who gave birth if in case there are fighting for the child custody. In child custody, the state of physical and mental also spiritual should be considered. For example, the mother itself has the responsible to prepare her children about the basic religion such as prayer as Rasulullah pbh said, “Teach your children to perform the prayer at their age of 7 years old and when they are 10 years old, beat them if they reluctant and separate their sleeping room”, same as the other legal children.

The responsibility of the Government.

The chronic issue in this country have caught government’s attention. The government has formulated some enactments and laws relating to this case. The example of the relating enactment is Section 80 of the Islamic Family Law Act 1984 which provides for the Federal Territory Duty to maintain its illegitimate child, or the Criminal Procedure Act 1977 about the father can be ordered to pay the maintenance in terms of a court order direct to the authority or person having custody of the child, and many more. This special laws and enactments are to protect the right of the illegitimate children. Another than that, the government also make a program like had cooperated with Non-government Organisation (NGO) such as Raudatus Sakinah. Then, the latest action by government is ‘Sekolah Harapan’ and [10]‘Baby Hatch’. This is implemented by the Ministry of Women, Family and Community Development and Orphan CARE to address the symptoms of abandoned babies and not planned to promote the case of pregnancy outside of marriage but to save dumping baby. Babies are kept in the meantime be given to the adoptive parents in accordance with their religion. [11]The State government's claims were supported by Malacca police chief Datuk Chua Ghee Lye, who confirmed there had been no more baby-dumping cases reported in Malacca since the school was set up. For our information, if a child is not collected to determine whether the baby is non-Muslims or Islam, it is the responsibility of the Government raised through charity organizations and to educate them. With this action, the baby will be not neglected and this is good to the children as they can grow up in Islamic way of live. The Prophet says; ‘Every human is born a natural believer (in Islam) and it is the parents who make the child Christian, Jewish or Mazdaist’ (al-Bukhari). The related programme is established since Malaysia has a government that is responsible and caring.

[1] http://www.islam.gov.my/ accessed on 10 April 2011

[2] Hudud, Hukum dan Pelaksanaan by Prof Madya Datin Dr. Paizah Hj. Ismail, Jabatan Fiqh dan Usul, Akademi Pengajian Islam, University Malaya, page 179

[3] http://www.islam.gov.my/ accessed on 10 April 2011

[4] HR Bukhari and Muslim from Abu Hurairah

[5] http://ujie.com/, answer by Marlina Amir Hamzah, Exco Syariah Lawyers Association of Malaysia (PGSM)

[6] http://www2.esyariah.gov.my/ accessed on 10 April 2011

[7] Enactment of Islamic Family Law,  Part Vi - Maintenance Of Wife, Children And Other

[8] Surah al-Talaq (Divorce), 65:7, from The Holy Quran, Abdullah Yusuf Ali, page 713

[9] Sunnah ýFiqh, Syed Sabiq, Juz 8, page 219

[10] http://www.ismaweb.net/ accessed on 10 April 2011

[11] http://www.mmail.com.my/, the Malay Mail ,Friday, March 4th, 2011 12:39:00, Cecilia Victor