Child Maintenance Without Paternal Filiation: A Comparative Analysis of Indonesian Law, Aceh’s Qanun, and Contemporary Islamic Jurisprudence

This study examines the legal construction of paternal maintenance obligations toward children born outside marriage by comparing Indonesian law, Aceh’s Qanun, and contemporary Islamic jurisprudence. It aims to identify the normative divergences among these legal frameworks and develop a child-protection approach that distinguishes maintenance obligations from the legal recognition of paternal filiation. This study employs normative legal research using statutory, conceptual, and comparative approaches. The primary legal materials include the 1945 Constitution of Indonesia, the Marriage Law, Constitutional Court Decision No. 46/PUU-VIII/2010, Aceh’s family law regulations, and Indonesian Council of Ulama Fatwa No. 11 of 2012, supplemented by classical and contemporary Islamic legal scholarship. The findings reveal a fundamental divergence in the construction of paternal responsibility. Indonesian law, as interpreted through Constitutional Court Decision No. 46/PUU-VIII/2010, recognizes civil relations between a child born outside marriage and a biologically related father when established through legally admissible evidence. Aceh’s Qanun, by contrast, reflects a more restrictive approach to paternal filiation and maintenance obligations. Contemporary Islamic jurisprudence provides an alternative framework through taʿzīr, potentially enabling state-imposed maintenance obligations without establishing paternal lineage. This study argues that a taʿzīr-based model offers a promising normative framework for reconciling child protection with Islamic legal principles, although its implementation requires a clear legal basis and procedural safeguards. It recommends developing explicit regulations governing evidentiary standards, maintenance assessment, enforcement mechanisms, and the child’s best interests while preserving the distinction between biological paternity, legal filiation, and financial responsibility.