The Distribution of Child Custody on Muslim Divorce

If we look at Islamic law, we can refer to the Islamic Law Compilation ("KHI"). In Article 105 KHI, in the event of a divorce, the care of children who are not yet mumayyiz or not yet 12 years old is the right of the mother, while the care of children who are mumayyiz is completely the right of the child to choose between the father or mother as the holder of the right to care.

Regarding the provisions of Article 105 KHI, there are exceptions, namely: If it is proven that the mother has apostatized and embraced a religion other than Islam, then the mother's right to care for the child will be annulled. This is following the Jurisprudence of the Supreme Court of the Republic of Indonesia No .: 210 / K / AG / 1996, which contains a legal abstraction that religion is a requirement to determine whether a mother's right to care and care (hadhanah) for her child is not yet mumayyiz.

This is also supported by the opinion of the Ulama in the Kifayatul Ahyar Book, Juz II, page 94, as follows:

There are seven prerequisites for people who will carry out hadhanah duties: sensible, independent, Muslim, simple, trustworthy, living in a certain area, and not having a new husband. If one of these conditions is lacking, the right of hadlonah will be annulled from the hands of the mother.

 

"Hadhanah" is the maintenance of children who are not able to stand on their own, the cost of education and maintenance of everything that endangers their lives in order to guarantee their children's rights to live, grow and develop optimally