THE IMPLEMENTATION OF ḤAḌĀNAH IN MALAYSIAN SHARĪ ̒AH COURT: A LITERATURE REVIEW

Abstract

Ḥaḍānah or child custody is an issue that often arises after divorce until today. Various initiatives are carried out by the authorities such as the Syariah High Court, the Syariah Judiciary Department of Malaysia (JKSM) and the Islamic Religious Council for each state in Malaysia to overcome this problem. This is because, this issue involves the welfare of Muslim children, that are affected by divorce as well as the rights of disputing parties, namely mother and father that need to be emphasized. Therefore, this literature review is to identify the issues that arise, the development and solutions provided for haḍānah issues. This study is qualitative by taking a descriptive content analysis approach by evaluating facts and arguments from various primary and secondary sources related to the study. To support the findings of the study, syariah court judge was also interviewed. The results of literature review shows that several issues are arising in the Syariah Court such as the existence of International Convention affecting Islamic Family Law, the limitation of sole custody practice, the absence of specific interpretations for the welfare of Muslim children, the issue of determining children`s religion in ḥaḍānah, the issue of ḥaḍānah is assumed biased towards women. This study also identifies positive developments in the resolution of ḥaḍānah cases in terms of its application, namely the interpretation of the welfare of the children in ḥaḍānah is clarified, the proposal of the concept of maṣlaḥah as a measure of children's welfare, granting joint custody to parents, sulh function in ḥaḍānah, proposed establishment of the Family Court in Malaysia and involvement of experts in related disciplines. However, in general, there are some of these suggestions that have not been implemented and are still at the evaluation stage. Therefore, this study suggests that these aspects need to be discovered and specific guidelines need to be formed and harmonized based on the principles of haḍānah welfare to achieve Maqāṣid Al-Sharī ̒ah which also is in accordance with the demands of the times and social changes in Malaysia.