Hadhanah

Hadhanah or child’s custody is one of the classic issues that occur as a result of

parents’ divorce. In the era of Rasulullah (PBUH), there was a debate among the companions

on who has the utmost rights for child’s custody after a divorce. Presently, the issue of

hadhanah is still occurring when the parents got divorce and each of them egotistically claim

that they hold the utmost rights for child’s custody without taking into consideration their

children’s needs and wants, especially the children who have reached their puberty and

mumayyiz. Children will always suffer the after effect of parents’ divorce as they will lose the

love, attention and happiness as well as facing some psychological issues including the issues

of child’s custody. The fighting of child’s custody among the parents will add to children’s

psychological burden. This is unfair to them as children are the most valuable gift given by

Allah. Therefore, a divorce cannot deny the children’s ultimate rights as mentioned by the

shariah law. Parents should take good care of the gift given to them by fulfilling their rights.

Among the rights of children that should be fulfilled by the parents are; rights for love and

attention, rights for alimony, rights to live with the parents or rights for education and safe

life guarantee. (Ibrahim, 2006)1

Hadhanah, according to the Islamic Family Law, when a divorce happens, the child’s

custody will be held by the husband since a father possessess the ultimate rights towards his

children. This is because, he is responsible for the children’s maintenance or alimony.

Nevertheless, a divorced woman is also entitled to hold the child’s custody based on few

terms and conditions. Hadhanah can literally be defined as taking care and nurturing the

young children by providing maintenance and education. It can also be defined as holding the

children and educate them since they were born. (Salleh, 1992)2

1
(Ibrahim, 2006)
2
(Salleh, 1992)
 Hadhanah is derived from the Arabic root word al-Hidn which means ribs or chest.

Based on the meaning of the word, it is connected to the nurturing act, as usually the mother

or the nanny will tightly hold the child close to their ribs or laps. Other than that, according to

the syarak term, hadhanah can be defined as the act of educating or nurturing the children by

anyone who has been given the hadhanah rights by the syarak. It is also defined as nurturing

and taking care of people who are not able to take care of themselves from things that could

hurt them as they cannot differentiate between good and bad things (not mumayyiz) such as

children, insane people and disabled people. Hadhanah also comprises the act of providing

the children’s needs; for example food, drink, cloth, health, education and other necessities.

(al-Zuhayli, 1985)3

As mentioned earlier, women have the ultimate rights in child’s custody if compared

to men as they are more capable in loving the children. Conversely, if the children do not

have any female relative, or they refuse to take the responsibility, the child’s custody will be

handed over to man. In this case, the children’s mahram by following the arrangement of the

wealth inheritors with the exception for the grandfather since a grandfather is prioritised more

than other male relatives. The inheritors’ priority is arranged as follows; father, grandfather

and great grandfather, brothers of the same parents, brothers of the same father, nephews of

the same parents, nephews of the same father and the next inheritors. (Ibrahim, 2006)4

Who has more right to custody (Hadhanah) in Islam?

3
(al-Zuhayli, 1985)
4
(Ibrahim, 2006)
 Women have more right to custody of children than men, in principle custody belongs

to them, because they are more compassionate and kind-hearted, and they know better how to

raise small children, and they are more patient in dealing with the difficulties involved. The

mother has more right to custody of her child, whether it is a boy or a girl, so long as she does

not re-marry and so long as she meets the conditions of custody. This is according to

scholarly consensus.

The conditions of custody are being accountable (an adult of sound mind), being free

(as opposed to being a slave), being of good character, being a Muslim if the child concerned

is a Muslim, and being able to fulfil all obligations towards the child. The mother should not

be married to a person who is a stranger or not related to the child. If one of these conditions

is not fulfilled and there is an impediment such as insanity or having remarried and etc, the

woman forfeits the right to custody, but if that impediment is removed, then the right to

custody is restored. But it is best to pay attention to the interests of the child, because his

rights come first.

The period of custody lasts until the age of discretion and independence, which mean,

until the child is able to discern what is what and is independent in the sense that he can eat

by himself, drink by himself, and clean himself after using the toilet and etc. When the child

reaches this age, the period of custody ends, whether the child is a boy or a girl. That is

usually at the age of seven or eight.

regarding hadhanah. Hadhanah is not merely rights that parents are fighting for, but it is a

responsibility that should be clearly understood and accomplished for the sake of children’s

future. Islamic Law stresses that in the issue of hadhanah, children’s welfare and benefits

should be the main priority that should be taken into consideration if compared to the benefits

for people who are fighting for it. That means, once the decision is made, the guardians

should carry the responsibility as perfect as possible. In Malaysia, the Sharia Court made

decision regarding the issue of hadhanah by referring to the Islamic Family Law which is

based on syarak. Other than that, the Civil Law of Malaysia also protect the issue of

hadhanah for children by introducing few clauses in relation to the rights of custody, rights or

meeting, maintenance, shelter and other related matters. This is highly significant in

protecting the children from the parents’ conflicts and hadhanah claim. Besides, the

differences in both laws can be accepted as both laws are created based on different

references. Even though both laws are different, they are still perfectly protecting the

children’s rights in hadhanah. In conclusion, both laws are promoting the efforts of assuring

the safety and peaceful life for the children despites their parents’ conflicts.