PENETAPAN ASAL-USUL ANAK DAN IMPLIKASINYA TERHADAP NASAB (STUDI PENETAPAN PENGADILAN AGAMA KAJEN NOMOR 266/PDT.P/2022/PA.KJN)

Muhammad Hadyan Wicaksana, NIM.: 21203011033 (2023) PENETAPAN ASAL-USUL ANAK DAN IMPLIKASINYA TERHADAP NASAB (STUDI PENETAPAN PENGADILAN AGAMA KAJEN NOMOR 266/PDT.P/2022/PA.KJN). Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This research aims to explore the origins of children and their implications for their lineage. Children born outside a legal marriage only have a civil relationship with their biological father and mother in accordance with Constitutional Court Decision Number 46/PUU-VIII/2010. However, in the case of a child's petition submitted to the Religious Court by the Plaintiffs in case Number 266/Pdt.P/2022/PA.Kjn, the Panel of Judges in making a decision used arguments that led to the nasab. This is different from the Constitutional Court's decision that relationships are only related to civil matters, whereas the Panel of Judges seems to want something more, namely regarding family lines. Based on this, the author is interested in conducting research to find out about the legal basis for the origin of children and the implications for the lineage associated with the determination of the lineage by the Panel of Judges. The type of research used is field research where the data is taken directly from the research location. With the nature of descriptive-analytic research. This research approach uses a juridical-empirical approach. Data collection techniques include observation and interviews with related parties. The analysis of the data used is qualitative with an inductive method by analyzing using progressive legal theory and legal discovery theory. The results of the research analyzed the decision of the Kajen Religious Court that the marriage was false, but the children born from the marriage could still be considered as the Petitioner's biological children. This is based on the opinion of people from the Hanafiyyah school of thought, which was taken over by the Panel of Judges at the Kajen Religious Court to use as the basis for its legal considerations. In considering the decision, the panel of judges used a progressive thinking approach, not just based on the child's request. As a result, this decision is a new legal discovery with an extensive interpretation method because it expands the meaning of Constitutional Court decision Number: 46/PUU-VIII/2010, which only relates to civil relations but is expanded to include relations between biological children and lineages. The child gets mahramiyah so he is entitled to inheritance and guardian rights in marriage. This is because the Kajen Religious Court accepted the application for the origin or recognition of the child based on the existence of a marriage entered by the Petitioner before the birth of the child.

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