Ḥiẓānah (حضانة)
Definition
Ḥiẓānah (حضانة) refers to the right and responsibility of a mother to the custody of her children in Islamic law. It encompasses the care, guardianship, and upbringing of young children, particularly focused on their welfare during early childhood.
Etymology
- Arabic: حضانة (Ḥiẓānah) - The root “ḥḍn” connotes nurturing and caring for an infant or child.
- Turkish: Hıdânet
Significance
In Islamic jurisprudence, ḥiẓānah prioritizes the best interest of the child, recognizing the mother as the primary caregiver during the formative years. This right is intricately linked with the emotional and developmental needs of the child, particularly when they are most dependent on maternal care.
Custody According to Islamic Schools of Thought
Ḥanafī School
- Daughters: Custody until puberty.
- Sons: Custody until the age of seven.
Mālikī and Shāfiʿī Schools
- Daughters: Custody continues until marriage.
- Sons: Option to remain under mother’s guardianship until puberty.
Shīʿah School
- Both sexes: Custody usually until the child is weaned, often around the age of two. For daughters, this continues until the age of seven.
Conditions for Custody
The right of ḥiẓānah may be forfeited if:
- The mother remarries a non-relative.
- Engages in misconduct or behaviors deemed harmful.
- Changes domicile in a way that hinders the father’s or legal guardian’s ability to supervise.
- Converts from Islam to another religion.
Special Cases
- Illegitimate Children: Custody typically remains with the mother and her family.
- Apostasy: A woman who apostatizes loses her right to ḥiẓānah over Muslim children.
Key Sources
- Fatāwā-i-ʿĀlamgīrī: An authoritative compilation of Islamic legal opinions.
- Personal Law of Muḥammadans by Syud Amīr Ali: Provides insights and interpretations specific to Muslim personal law.
Further Reading
- “Islamic Jurisprudence” by Mohammad Hashim Kamali
- “An Introduction to Islamic Law” by Wael B. Hallaq
- “Islamic Family Law” by Abdullahi Ahmed An-Na’im
- “Women and Islamic Law in a Non-Muslim State: A Study Based on Decisions of the Sharia Courts in Israel” by Aharon Layish
Takeaways
- Ḥiẓānah underscores the importance of early childhood care within Islamic law.
- Each Islamic school of thought prescribes specific guidelines regarding the duration and conditions for maternal custody.
- The mother’s right to custody is conditional and can be forfeited under certain circumstances.
Conclusion
Ḥiẓānah is a vital concept in Islamic family law, designed to ensure the well-being and proper upbringing of children within the framework of Islamic jurisprudence. Understanding the variances among different schools of thought provides a comprehensive view of how custody issues are approached in Islamic contexts.
