2. DEFINITION Of HADANAHDEFINITION Of HADANAH
Literally : nurturing or upbringing.Literally : nurturing or upbringing.
Technically : the protection of the child orTechnically : the protection of the child or
insane person who is unable to depend oninsane person who is unable to depend on
himself from harm and his upbringinghimself from harm and his upbringing
3. • The fuqaha are unanimous that the
mother is the best person
• the mother is more affectionate and
loving to children.
• Mother is more experience and
knowledgeable in handling a small infant
especially in the case where she
breastfeeds the baby.
4. AUTHORITIESAUTHORITIES
al-Baqarah: 233al-Baqarah: 233
A woman was divorced by her husband andA woman was divorced by her husband and
came to see the Prophet (saw), she said: “came to see the Prophet (saw), she said: “
O Prophet! My womb is a vessel to this sonO Prophet! My womb is a vessel to this son
of mine, my breasts a water-skin for himof mine, my breasts a water-skin for him
and my lap is a refuge for him, yet his fatherand my lap is a refuge for him, yet his father
has divorced me and wants to take himhas divorced me and wants to take him
away from me. The Prophet (saw): Youaway from me. The Prophet (saw): You
have more right to him as long as you dohave more right to him as long as you do
not marry”.not marry”.
5. Imam Shafie in giving the rationale forImam Shafie in giving the rationale for
preferring the mother stated that;preferring the mother stated that;
““Thus when a child has not reached the ageThus when a child has not reached the age
of discreation, the mother has a greaterof discreation, the mother has a greater
right to his upbringing in as much as this isright to his upbringing in as much as this is
a question of the right of the child, not thea question of the right of the child, not the
question of the degree of love, attachmentquestion of the degree of love, attachment
and affection of the parents”.and affection of the parents”.
6. Duration of CustodyDuration of Custody
With regard to the right of a mother toWith regard to the right of a mother to
hadanah, The Hanbalis and the Shafiishadanah, The Hanbalis and the Shafiis
regard that the duration of custody of a childregard that the duration of custody of a child
is until he or she reaches the age ofis until he or she reaches the age of
mumayyiz of seven years old.mumayyiz of seven years old.
However, according to the most preferredHowever, according to the most preferred
view under the Hanafi school, the durationview under the Hanafi school, the duration
of custody is until the child aged sevenof custody is until the child aged seven
years for a boy and nine years for a girl.years for a boy and nine years for a girl.
7. Provisions under the Law InProvisions under the Law In
MalaysiaMalaysia
THE IFLATHE IFLA
Custody of legitimate child – Sections 81 –Custody of legitimate child – Sections 81 –
84, s. 86-87.84, s. 86-87.
Custody of illegitimate child – Section 85Custody of illegitimate child – Section 85
8. CASESCASES
Wan Abdul Aziz v Siti AishahWan Abdul Aziz v Siti Aishah
Zaliha v RahmatZaliha v Rahmat
Wan Khadijah v IsmailWan Khadijah v Ismail
Faridah v Mohd FirdausFaridah v Mohd Firdaus
Mohd Radhi v KhadijahMohd Radhi v Khadijah
Azizi v Wan Sharinee FitraAzizi v Wan Sharinee Fitra
Nong Azman Shah v Ahood ThamarNong Azman Shah v Ahood Thamar
9. Custody of Adopted ChidlCustody of Adopted Chidl
Rosnah v Ibrahim [1979] 1 JH (2) 94Rosnah v Ibrahim [1979] 1 JH (2) 94
Divorced wife claimed among othersDivorced wife claimed among others
custody of an adopted child aged threecustody of an adopted child aged three
years oldyears old
The Chief Kadi has given the right toThe Chief Kadi has given the right to
custody of the adopted child to the adoptedcustody of the adopted child to the adopted
mother (divorced wife)mother (divorced wife)
12. Al-Baqarah : 233Al-Baqarah : 233
“ …“ …But he shall bear the cost of their foodBut he shall bear the cost of their food
and clothing on equitable terms…”and clothing on equitable terms…”
13. At-TALAQ: 7At-TALAQ: 7
Let the man of means Spend according toLet the man of means Spend according to
His means: and the man whose resourcesHis means: and the man whose resources
are restricted, Let him spend according toare restricted, Let him spend according to
what Allah has given him…what Allah has given him…
14. HADITHHADITH
Narrated from Aisyah that Hindun bintiNarrated from Aisyah that Hindun binti
Utbah said; O Rasulullah, Abu Sufyan is aUtbah said; O Rasulullah, Abu Sufyan is a
miser. He didn’t give my children and memiser. He didn’t give my children and me
sufficient amount of maintenance, unless Isufficient amount of maintenance, unless I
took it out of his knowledge. Rasulullahtook it out of his knowledge. Rasulullah
(saw) said, Take what is sufficient for you(saw) said, Take what is sufficient for you
and your family in a good manner…and your family in a good manner…
15. Provisions of The Islamic Law InProvisions of The Islamic Law In
MalaysiaMalaysia
Sections 72 – 80Sections 72 – 80
* Duty To maintain children – s. 72* Duty To maintain children – s. 72
* Duty To maintain child accepted as* Duty To maintain child accepted as
member of family or adopted child – s. 78member of family or adopted child – s. 78
* Duty to maintain illegitimate children – s.* Duty to maintain illegitimate children – s.
80.80.
16. CASESCASES
Mohamed v SelamahMohamed v Selamah
Rokiah v Mohamed IdrisRokiah v Mohamed Idris
Roslan v Abdul GhaniRoslan v Abdul Ghani
Mohd Hassan v Siti SharidzaMohd Hassan v Siti Sharidza
Hafizah Indra v JamaluddinHafizah Indra v Jamaluddin
Faridah Hanim v Abd LatifFaridah Hanim v Abd Latif
17. Roslan v Abdul GhaniRoslan v Abdul Ghani
The learned Kadi dismissed the claim forThe learned Kadi dismissed the claim for
maintenance of a child who had been bornmaintenance of a child who had been born
outside wedlockoutside wedlock
