A Review of the Maqashid Al-Shariah Regarding the Inheritance Rights of Children Born Out of an Unregistered Interfaith Marriage (An Analysis of Constitutional Court Decision No. 46/Puu-Viii/2010)

Abstract

This study examines the inheritance rights of children born from unregistered interfaith marriages from the perspective of Maqashid al-Shariah, with particular reference to Constitutional Court Decision No. 46/PUU-VIII/2010. The study employed normative legal research using statutory and conceptual approaches. The findings reveal three main points. First, from a legal perspective, children born from unregistered interfaith marriages face multiple obstacles, including the absence of their parents’ marriage certificate and religious differences, which constitute barriers to inheritance under the Compilation of Islamic Law. However, the jurisprudence of the Supreme Court, from Decision No. 368 K/AG/1995 to Decision No. 331 K/AG/2018, has consistently developed the concept of a mandatory bequest (wasiat wajibah) of up to one-third of the estate as a compromise mechanism. Second, an analysis based on Maqashid al-Shariah indicates that the absolute denial of children’s civil rights may conflict with the five essential objectives categorized as daruriyyat. In this context, wasiat wajibah may serve as a middle-ground solution consistent with the objectives of Islamic law because it can be understood as an extension of the biological father’s maintenance obligations rather than as the granting of inheritance rights contrary to the faraid system. Third, there remains an uneven institutional response among branches of state power. The executive has responded through the Statement of Absolute Responsibility instrument since 2016, and the judiciary has responded through Supreme Court Circular Letter No. 3 of 2023. By contrast, the legislature has not substantively followed up on Constitutional Court Decision No. 46/PUU-VIII/2010, as reflected in the absence of an amendment to Article 43 paragraph (1) of Law No. 16 of 2019.