INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

ISSN No. 2454-6186 | DOI: 10.47772/IJRISS | Volume IX Issue XXX December 2025 | Special Issue

Page 386

www.rsisinternational.org

This study discusses the issue of the right of custody (hadanah) for young children of interfaith couples following

(Hanafi, Maliki, Shafi'i, and Hanbali) regarding the condition of Islam for the right of hadanah, and to evaluate

the strength of each school's arguments and evidence to determine the most preponderant (rajih) and contextually

appropriate opinion. The methodology employed is a qualitative library-based study using a content analysis

approach on primary sources of jurisprudence such as authoritative classical texts and textual evidence (naqli ),

namely the Quran and Hadith, relied upon by each school. The study's findings reveal two main opinions. The

Hanafi and Maliki schools hold that Islam is not an absolute condition; a non-Muslim mother who is a dhimmi (a

protected non-Muslim citizen in an Islamic state) has the right to custody of a Muslim child, provided the child

is not yet mumayyiz (around the age of seven) and there is no fear of the child being influenced by the mother's

religion. However, the Shafi'i and Hanbali schools firmly maintain that Islam is a fundamental condition; the

right of hadanah is exclusively for a Muslim custodian to protect the child's faith (aqidah) and best interests.

An incident concerning the right of child custody for an interfaith couple occurred during the time of the Prophet

Muhammad (peace be upon him). Among these incidents is the one narrated by Abu Dawud in his Sunan (al-

Sajastani, n.d., 1:267):

From Rafi' bin Sinan that he embraced Islam while his wife refused to embrace Islam. She came to the Prophet

(peace be upon him) and said, "My daughter, she is weaning or of similar age." Rafi' said, "My daughter." The

Prophet (peace be upon him) said to him, "Sit in one corner," and said to her, "Sit in another corner." The Prophet

(peace be upon him) then placed the girl between them and said, "Call her." The girl inclined towards her mother.

The Prophet (peace be upon him) said, "O Allah, guide her." Then she inclined towards her father, and he took

her.

INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

ISSN No. 2454-6186 | DOI: 10.47772/IJRISS | Volume IX Issue XXX December 2025 | Special Issue

Page 387

www.rsisinternational.org

When divorce occurs involving an interfaith couple and a dispute arises regarding the right to custody, the

(2018).

Therefore, a non-Muslim mother has the right to custody of a Muslim child, whether male or female. Their right

is equal to that of a Muslim. However, they must be a dhimmi residing under an Islamic state. Otherwise, the

right of hadanah cannot be granted to non-Muslims.

In the book al-Dur al-Mukhtar wa Rad al-Muhtar by Ibn 'Abidin, it is stated: "A dhimmi woman, even if she is

a Magian, is like a Muslim woman in obtaining the right of hadanah as long as the child does not recognize

religion, i.e., around the age of seven, because his/her Islam is established at that time, or there is no fear of the

child inclining towards the mother's religion, such as being taken to places of worship, etc. If that occurs, then

the right of hadanah should be revoked even if the child does not yet recognize religion."

They argue based on the aforementioned hadith narrated by Abu Dawud in his Sunan. Additionally, they argue

be given to the eligible Muslim according to the hierarchical order of those entitled to hadanah (Zaydan, n.d.).

The Maliki school holds an opinion similar to the Hanafi school, that Islam is not a condition for obtaining the

right of hadanah over a Muslim child. The mother has a greater right to custody, whether she is Muslim or non-

Muslim.

However, they state that if there is concern about the child being exposed to the non-Muslim mother's religion,

it becomes obligatory upon Muslims to supervise the mother until the end of the hadanah period, which is

puberty for males, after which the child is handed over to the father or his substitute, such as the grandfather,

paternal uncle, etc. As for female children, they remain with their mother until they marry.

Al-Dardir mentions in his book al-Sharh al-Kabir that Islam is not a condition for obtaining the right of hadanah,

whether the custodian is male or female. If there is fear of the child being exposed to harm, such as being served

Therefore, there is no maslahah for a Muslim child to be in the care of a non-Muslim, as the child is exposed to

trials concerning their religion, which is a great harm (al-Sharbini, 1995, 5:195).

If the child is non-Muslim due to following the lineage of a non-Muslim father, a Muslim still has the right to

custody over that child.

INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

ISSN No. 2454-6186 | DOI: 10.47772/IJRISS | Volume IX Issue XXX December 2025 | Special Issue

Page 388

www.rsisinternational.org

He also said: "If the mother is a slave or a non-Muslim, while the father is a Muslim, then the mother has no

As for the hadith stating that the Prophet (peace be upon him) gave the child a choice between staying with the

mother or the father during a divorce caused by differing religions, it has been abrogated (naskh). This is because

there is consensus (ijma') among Muslims that a Muslim child cannot be handed over to a non-Muslim, even if

it is the biological mother, as stated in the words of Allah the Almighty (Quran, al-Nisa' 4:141): "And Allah will

never grant the disbelievers a way over the believers."

Therefore, the right of hadanah should be given to the most entitled person among the child's Muslim relatives

After examining the arguments and evidence presented, as well as the resolution approaches taken by the schools

of jurisprudence, the author is of the opinion that the view of the Shafi'i school, which places Islam as a condition

for obtaining the right of hadanah over a Muslim child, is the strongest and most preponderant (rajih) compared

to other opinions, based on the evidence brought by that school.

Although according to the Hanafi school, Islam is not a condition for a non-Muslim to obtain the right

of hadanah over a Muslim child, they stipulate that the non-Muslim must reside in an Islamic state, referred to

as a dhimmi. Otherwise, the right cannot be granted to a non-Muslim to safeguard the child's best interests.

Therefore, the opinion of the Shafi'i school is appropriate and suitable for application in the current context,

where Muslims are exposed to elements contrary to Islam even if they grow up and are educated in a Muslim

environment, let alone if they grow up in a non-Muslim environment.

involves a deep consideration between maintaining natural familial bonds (such as a mother's affection) and the

principle of safeguarding the child's faith (aqidah) and religious best interests as the highest priority. Although

there are differing approaches among the schools of jurisprudence, an analysis of the arguments and evidence

indicates that the opinion of the Shafi'i (and Hanbali) school, which makes Islam a mandatory condition for

possessing the right of hadanah over a Muslim child, is stronger and more preponderant. This opinion aligns

with the objectives of Islamic law (maqasid al-shari'ah) in preserving religion (hifz al-din) and the contemporary

reality that exposes Muslim children to various influences that could endanger their faith if under the care of a

non-Muslim. Therefore, to ensure upbringing and education consistent with the demands of Islam, the right

of hadanah should be granted to a custodian who is Muslim, whether from among the closest relatives or an

appointed Muslim guardian. This decision reflects a commitment to prioritizing the protection of the child's

INTERNATIONAL JOURNAL OF RESEARCH AND INNOVATION IN SOCIAL SCIENCE (IJRISS)

ISSN No. 2454-6186 | DOI: 10.47772/IJRISS | Volume IX Issue XXX December 2025 | Special Issue

Page 389

www.rsisinternational.org