Hukum Waris Banci Perspektif Fiqh Islam dan Kitab Undang-Undang Hukum Perdata

Abstract

hree things must be fulfilled to distribute the inheritances: inheritor(s),heir(s), and inheritance. The problem arises if the sex is unknown(transvestite), will he receive the male’s or female’s portion of inheritance?This research uses a literature research method, namely by analyzingexisting literature materials, both from the literature and from the laws andregulations, especially those relating to inheritance laws. Research resultsobtained by researchers that the Criminal Code has not discussed thetransvestite laws. The Criminal Code does not differentiate between maleand female inheritance whereas Islamic fiqh represented by Islamic LawsScholars begged to differ in views about the rule of transvestite and theperson who inherited with him: Hanafiyah argued that transvestites took theworst part and the heirs with him made the best part. Malikiyah explainedtransvestite and the person who inherited with him got half the male andhalf of women. Syafi'iyah argued that transvestites and the person whoinherited with him had the worst part of the two possibilities of being maleor female. Hanabilah was of the opinion that if the transvestite was stillsmall then they agreed with the view of syafi'iyah, whereas if the transvestitehad already matured then they agree with his opinion malikiyah.