Ghali Fairuzy Windiansyah

1406640291
Annisa Lintang J.
1406640266
Subject: Adat Inheritance Law
TOPIC 2
Law of Relationship Child-Parent & Child-Kin groups
relationships
Ter Haar defined the law of relationship as an expression of the social
consequences of biological kinship, which this derives from the wants of the
naturalijke persoon inside the law of person to make a family which result a
bloodline / lineage from one generation to another generation.
The law of relationship discusses about the child-parent relations, childkin group relations, adoption, and also about the care of orphans. But in this
2nd topic we will only write about 2 sub-topics of the law of relationship which
are the Child-Parent Relationships and also the Child-Kin group
Relationships.
The Law of relationship will further be discussed about the status of a
child in a family, which will determine the relationship of the child to its kin
group. This topic will also be related with the structure of the autonomous
communities, the types of mating which connects to the types of marriage,
and also related to the inheritance system of Adat based on the autonomous
community.

A. Child-Parent Relationships
The most important aspect in the child-parent relationships is whether the
child is born out of wedlock (marriage) or not, which means that child is legal

or illegal. The mom who gave birth to the child born out of wedlock is called
the biological mother, and also the father who is married to the mom that
gave birth to the child is called the biological father. The child who is born
out of wedlock is recognized as the legitimate child (legal), while the child
who is born outside of wedlock is recognized as illegitimate child (illegal)
which in adat practices, both the mother and the illegitimate child will be
treated inhuman as it gives flaws to the status (popularity) of the adat, which
they are both excommunicated by killed by drowning, or they are given to
the prince as a slave. But fortunately, there are still protetions against this
inhuman practices.
As I said that the important aspect is the child born of of wedlock or not, the
legitimate child has an important position in every adat communities, which
most adat communities held lots of ceremony for the child which the
ceremonies symbolize a religious and magical aspect of the adat and the
ceremonies kept following the child in his/her physical growth. The purpose
of the adat communities to held a ceremony is to protect the child (inside her
mothers womb) and the mother (that still in state of carrying the child inside
her womb), from any distractions or dangers and in hope that the child that
will be born will fulfill the dreams of the parents (to fulfill the vision of their
parents as a successful child). Further more, to show how important the child
born legitimately is shown where a man is appointed to marry a woman
which already had her child inside the womb, to forcefully marrying her, this
force marriage is usually ordered by the village chief which acts as the
prevention against the child born out of wedlock (in fact it is an act of
protection to prevent) so that the purpose of this is in order to make the birth
possible in wedlock.
In Java, where the system of the parents is a parental system, they
really respect their legitimate child where it is stipulated that the parents
have a financial obligation to pursue the livings and the educations of the
child that has not recognized as an adult. This obligation is burdened to both
of the childs mother and father. Which if they fail to execute their obligation,

they can be sued and will be charged where the legal basis is the Supreme
Courts Decision, September 3rd 1958 Regulation No.216 / K / Sip. / 1958.
Following how precious is a child in java, they held a ceremony to for
the child which are divided into phases based on the growth of the child:
1)
2)
3)
4)

Child that is still inside the womb of the mother

When the child is born
When the childs tali ari is taken of
After the 40 days of the life of the child on the mother earth

In case a married woman has a child inside her womb, outside the
doings of her own husband, the child is considered legitimate and recognized
as the biological child of her husband too, unless he rejects the childs
existence. The children of the husbands second wife have a lower rank than
the first wife, in aspects of the status to his/her father and also in terms of
inheritance. Incest in the adat family is strictly prohibited between the
internal relation of the extended family (mother-son or father-daughter).
In certain cases, there are also the dissolution of the child-parent
relationship, for example when the father disowning his own son that is
considered to be legal, where in Bali it is called pegat mapianaq and in
Angkola it is called mangaliplip.

B. Child-Kin groups Relationships

As this is the consequence of the blood relationship / lineage, thus it is based
on the forms of adat communities which there are 3 types: Unilateral
(Patrilineal and Matrilineal), and Bilateral.
In Bilateral kin-ship system, there are no differences between the
relatives position whether it is the fathers family or the mothers family, the
relationship of the child to the fathers family and the mothers family are
both equal. Thus, the relationship of the child in his/her kinship relation is
balanced between his/her fathers and mothers family.
In Unilateral kin-ship system, the name unilateral means single, thus
this means that the relationship of the child will be heavy on one side, which
are either his/her fathers family or the mothers family. Thus, in Patrilineal
the child will be heavy to the fathers side and in Matrilineal the

child will be heavy to the mothers side. This doesnt mean that the
other side of the family can not take care of the child, this only determines
which side of the family has a big portion of role in having the relations with
the child. Because, it is heavy to one side, the relation between the children
and his/her kin-groups are more obvious than the bilateral system.
Regarding the children that are born out of wedlock, illegitimate child
mostly does not recognize as a relative, which they always have the title of
child outside of the family and that is the way of the community to
perceive the child, but if people do not know whether the child is illegitimate
or legitimate it is considered as fine while if the child is gapped to be
illegitimate, the social sanctions to the child will be applied and it is different
in each tribes.

Comparing to Western Law

Child-parent relation is contained in Law of Marriage (Law no.1 year
1974 that is inspired by the western law and acts as the unification
of marriage in Indonesia) in Article 45 and article 48 considering the
wealth of the child, while in Article 45 it is stated that:

paragraph (1): "Both parents are obliged to maintain and

educate their children as well as possible".

Paragraph (2): "The obligation of parents referred to paragraph
(1) of this Article applies until the child marries or can stand
alone by him/herself, where applicable obligations continue even
though the marriage between the parents breaks apart".

Thus, we can conclude thatthe rights and duties of parents of a child can be
explained as follows: Protection for the child, Providing education for the
future of the child, Represent the child in all legal acts in when the childs
age is below eighteen years old and have never been married, Provide child
maintenance costs despite when the parental authority has been disbanded.

As According to this article means that parents have obligations to maintain

and educate the child as well as possible (for the purpose of the future life of
the child). If parents do not do the obligations or parents behave badly
towards the child, the righst of the parents to the child may be revoked.
In Article 48 of the Law of Marriage concerning about the wealth of the child,
it is stated that

"Parents are not allowed to move right or pledge the goods that is still
owned by his child who has not aged eighteen years or never enters
into a marriage, unless the child's wishes it to be done.

This articles purpose is to provide the protection to the wealth of the child so
that the property of the child can be protected from the parents actions
(usually considered as a deterred actions) which can lead to the loss of the
child's property (goods) and deterrence.

Child- Kin group relationship is stated in the Law of Marriage (Law no.1 year
1974 that is inspired by the western law and acts as the unification of
marriage law in Indonesia), in Article 43 Paragraph (1) it is stated that The
illegitimate child only has a legal relations with only his/her mother and
his/her mothers family. Which means that the mother bears the burden to
ensure the childs livelihood and education alone by herself, which if the
child wants to have a legal relationship to his mother is contained in Article
44 Paragraph (1) that states: The husband can rejects the child as
illegitimate child, if he can prove that the child is born out of marriage.
Which means that if the child is accepted and not rejected, the child will
have the legal relationship with his father.

Comparing to Islamic Law

A legitimate child can be recognized after 6 months of time after
marriage, this is to ensure that the child is not born because of zina / outside

of the marriage. Also, in case of divorce the child is considered to have the
biological father (the widower), if the child is born within 9 months of divorce.
The rights and obligation of the parents-child in maintaining the child is
contained in KHI or we can call them The Compilation of Islamic Law in
Article 105(a) about Wilayat Al-Mal and Hadhanah.

Hadhanah in the Fiqh science is defined as the taking care of children

at the period of immaturity (not yet experiencing aqil baligh), and can
not stand/live by themselves. This obligation is burdened for the
mother and father of the child when they are still inside the marriage
or divorced. The relatives (usually the mothers or fathers family) also
can be burdened with this obligation incase the parent of that child are

considered incompetent in taking care of the child

Wilayat Al-Mal in the Fiqh science is defined as taking care of the
wealth of the child and the interests of the child that is related to the
property, which in this case the obligation is burdened to the father or
the father of his/her father (grandfather), which the father has the
power to appoint anyone to take care of the childs property through a
will or wasiat. Even though there is an exception of anyone can be
chosen, in reality in fact, the mother is chosen, while if there is no one
who can take care of the childs property, then the state will take over
in maintaining the wealth of the child.

This obligation is usually imposed to the parents or the relatives of the

parents until the child is considered as Aqil Baligh and reach the Al-Rashid
stage where it is the most perfect stage in describing the maturity of a
person.

MINUTES
Gianna Larenta (Group 6)

In Adat Law, harsh treatment out of wedlock, but still given protection,
Islamic Law about Hadhanah, in Islamic Law are there any protection or
harsh treatment?
Hadhanah is about the science of fiqh (taking care of children), so there are
alot of protection of the childen, where it is not harshly killed, but the
sanction arrives during the inheritance, where it only can be inheritted from
mother, while father not (except the father accepts the child as his biological
child)
Ananda Vania (Group 3)
Regarding excommunication, is there any other consequences and
what is the purpose on that. Because in the community it is considered
inappropriate according to the custom?
The other consequences usually they will be trated harsh by the comunity
and alsdo dicsrimination towards the illegitimate child and the mother. But
nowadays, people tend not to talk about other familys business, as they are
more individualist now.
Why do you think the illegitimate child and the mother should be treated
(harsh) like that?
Because usually in the community, it is usually considered as inappropriate
according to the custom.
Baiq Himawanti N. P. A. (Group 5)
On your slide you stated that effectual excommunication no longer takes
place, can you specify more on why it doesnt exist anymore?
The reason is because right now people ar more individual and tends to focus
on their own problems instead. However, in Nias excommunication still exist.

Mutiara Windraskinasih (Group 12)

In Islamic Law, adoption is prohibited. What about in Adat Law?
(Out of topic)
Dooyoung Choi (Group 7)
What will happen to the child born out of wedlock if the father rejected
thepaternity. Wht are theconsequences to the child?
If it happens in the unilateral, the child is still in the clan of the mother, but it
is considered outside the family of the mother. While in Minahasa,
extramarital child has no father according to Adat Law, but if tje father
wishes to establish his relation beyond a doubt, when he is not living with the
mother, he gives her the present, called lilikur (hak lilikur).

Nabila Radityanti (Group 10)

If an endogmous marriage happened inside a unilateral marriage, to whom
the child is related? (Unable to answer)
Olivia Lee (Group 8)
Are children born outside wedlock still exist? Is it still happening? Is it against
the human rights?
In the present times, it is still exist, because the adat law is not prevails as
positive law again in present times. Because it is based on peoples choice of
moral living. Concerning about the killed by drowning, it is actuallystill agains
the human rights, but it doesnt exist anymore.
Ghali Fairuzy (Group 9)
Does killing a mother and her child is a solution to restrore the cosmic
balance?

First of all, what we know is that cosmic balance only refers to marriage or it
is focusing to the bride price. So killing the mother and her child is not a
solution to restore the cosmic balance.