The MK ruled that a child born outside formal wedlock does have a civil relationship with the man who, through existing scientific, technological or other means, can be proven to be its father.
The clause in Law No 1/1974 on Marriage saying that a child born outside an officially registered marriage only has a civil relationship with its mother was considered by the MK as being against Indonesia`s 1945 Constitution.
The MK issued its ruling in response to a request from Aisyah Mochtar (Machica Mochtar) and her child, Muhammad Iqbal Ramadhan bin Moerdiono, for a judicial review of Article 43, Section (1) of Law No 1/1974 on Marriage.
"We have endorsed part of the petitioners` request on Article 43, Section (1) of Law No 1/1974 on Marriage saying that `A child born outside a legal marriage shall only have a civil relationship with its mother and her family` and concluded that this clause runs counter to the 1945 Constitution insofar it is interpreted as negating the existence of a civil relationship between the child and the man who, through scientific, technological or other legal means can be proven to be its father," MK Chairman Mahud MD said when reading out the ruling here Friday.
An MK justice, Fadlil, in explaining the court`s ruling said it was naturally impossible for a woman to conceive if there was no meeting between her ovum and spermatozoa during sexual intercourse or through another fertilization process.
"Therefore, it is not correct and unjust for legal rule to say that a child born outside official wedlock or through an extramarital relationship only has a relationship with its mother. It also not right and unjust for the law to free the man who had the sexual relationship that led to the pregnancy and the child`s birth from his responsibilities as the child`s father while also denying its rights towards the man who is its father," he said.
Therefore, Fadlil said, regardless of whether or not a child is born from an officially registered marriage, it must have the protection of the law.
Commenting on the MK`s ruling, Machica Mochtar said "This is a victory for my child who has never been recognized by its father", the late Moerdiono who was minister/state secretary during the Soeharto era.
Moerdiono married Machica under an Islamic siri arrangement in 1993 and fathered a child named Muhammad Iqbal Ramadhan. Their siri marriage could not be registered with the religious affairs office as Moerdiono was still wed to his wife and the marriage law only recognized monogamous unions.
After their siri marriage broke down, Moerdiono did not recognize Iqbal as his son and not provided any support since Iqbal was two years old. (*)
Editor: Kunto Wibisono
Copyright © ANTARA 2012
