PROBLEMS COMING FROM ILLEGITIMATE CHILDREN

 PROBLEMS COMING FROM ILLEGITIMATE CHILDREN

     In this modern age, a phenomenon of birth out of wedlock among teenagers is very serious and worrying. An increasing trend of children born out of wedlock is so terrible with 234 674 cases are recorded between 2006 and 2009 based on National Registration Department (NRD) statistics[i]. Normally, birth out of wedlock comes from couples that do not marriage. In some cases, it happened unwillingly but most cases happened willingly without forces. Allah said in Al-Quran, “Nor come nigh to adultery, for it is a shameful (deed) and an evil, opening the road (to other evils).”[ii] Adultery or fornication creates many problems after that. Most of them have born illegitimate children. Unfortunately, the innocent babies are killed or throw away anywhere by the couples.

What are illegitimate children? According to guidelines of fatwa of illegitimate children based on shari’ah law in Selangor which was gazetted on 28 April 2005, sighah associated with an illegitimate child by syara’ law is as follows[iii]  :-

1)      children who born out without marriage as a result of adultery, rape or through scientific method against the syariah laws....

2)       children born less than six months (two lahzah qamariah) from the time of “imkad ad-dukhul” and not the result of syubhah intercourse..

3)       children born out of wedlock in six months ( two lahzah qamariah) from the time of “imkad  ad-dukhul” after the contract (nikah) is valid and there is no evidence in terms of Islamic law that the illegitimate children through an admission (confession) from they are concerned ( the husband and wife or one of them) or 4 witnesses who meet the legal requirements according to syara' law.

According to definition given above, we simply conclude that illegitimate children are the children who are born in situation that his/her parents do not marriage. Jurist or scholars from all mazhabs agree that a child who born out of wedlock and the pregnancy occurred before the marriage of both of her/his parents is the child as result of adultery. This child is considered as an illegitimate child.

     When we talk about an illegitimate child, various issues and problems will arise about the status, custody, inheritance of property, guardianship, and other aspects that are related to an illegitimate child[iv]. First and foremost, we want to talk about who is the person either his/her father or his/her mother should take care of this innocent child. According to the syari’ah laws, his/her mother should take care of this illegitimate child. For maintenance also, it is the responsibility of his/her mother to take care and bear the illegitimate child. This is because the illegitimate children have a connection (nasab) with his/her mother. For that reason also, illegitimate children cannot be “dibin” or “dibinti”kan to his/her father. Besides that, they also cannot inherit the property of their father. However, the property of his/her mother can be inherited by his/her illegitimate child.

Another problem is when the illegitimate children (women only) wants to get married, it is possible for her father (man who make intersexual intercourse with her mother before marriage)  to be guardianship (wali) ? The answer is no. The illegitimate child who wants to get married, should take a lawyer as her guardianship (wali hakim). Last but not least, we want to talk about the status of religion of the illegitimate children. The religion of the illegitimate children before their puberty is according to their mother. If their mother is Islam, then the innocent children are automatically Islam. If their mother is non-Muslims, then the religion of illegitimate children follows their mother. How about an innocent baby who is throwing away and then picked up by other society or community? If the children are picked up and not determined whether the offspring is Muslim or not, it is the responsibility of the governments or society or community to take care, maintain and educate them according to the religion virtues of Islam as the majority of citizen in Malaysia are Islam.

 According to the shari’ah laws, adultery is sexual intercourse between man and women who do not get marriage. According to the laws of Malaysia, there is no interpretation of the act of adultery. Thus, it is not considered as a crime because they do each other willingly. In contrast to the act of rape, it is considered as a criminal offense because there has the element of force and victim in this crime. Islam takes both crimes in a serious action. In Islamic laws (hudud), the man or women who guilty of adultery should flog each of them with hundred stripes[v].

 As a conclusion, every Muslim should take responsibility of the issue of birth out of wedlock. Parents should take care of their children and educate them with the religion virtues of Islam from the beginning so that with the fundamental of Islamic knowledge and faith ( aqidah) , they do not get into unhealthy lifestyle such as adultery, smoking, vandalism and so on. Rasulullah also said in hadith (Shahih Bukhari), narrated Abu Hurairah : Allah's Apostle said, "Every child is born with a true faith of Islam (i.e. to worship none but Allah Alone) but his parents convert him to Judaism, Christianity or Magainism, as an animal delivers a perfect baby animal. Do you find it mutilated?" Then Abu Hurairah recited the holy verses: "The pure Allah's Islamic nature (true faith of Islam) (i.e. worshipping none but Allah) with which He has created human beings. No change let there be in the religion of Allah (i.e. joining none in worship with Allah). That is the straight religion (Islam) but most of men know, not." (30.30)  (Book 23, Hadith 441)[vi].

 [i] http://www.asiaone.com/News/AsiaOne%2BNews/Malaysia/Story/A1Story20110321-269221.html , 24/4/2011

 [ii] The Holy Quran Text and Translation, July 2005, by Abdullah Yusuf Ali, Surah al- Isra’ (17 : 32) , pg 331

 [iii] Buatmu Ibu (Malay version) Section 17 :- Hamil Anak Luar Nikah (Born Out of Wedlock) by Suzana Ghazali , 2009 ,published  by Buku Prima sdn bhd.  pg 271.

 [iv] http://www.1malaysia.com/blogs/7191/462/anak-tak-sah-taraf-da-implikasi (24/4/2011)

[v] The Holy Quran Text and Translation, published by Islamic Book Trust, Kuala Lumpur, July 2005, by Abdullah Yusuf Ali, Surah Al-Nur (24 : 2) pg 419.

 [vi] http://www.searchtruth.com/searchHadith.php?keyword=Born+in+nature&translator=1&search=1&book&start=0&records_display=10&search_word=all (24/4/2011)