الاعتياض عن الحضانة بالمال

Abstract

Abstract

This research examines the ruling on a custodian receiving financial compensation in exchange for waiving her right of child custody (ḥaḍānah) in Islamic jurisprudence, a sub-issue whose texts are scattered across the books of the jurists. It aims to determine the ruling on such compensation; to clarify the disagreement over whether custody is a right of the custodian, of the child, or of both; to explain the effect of that disagreement on the permissibility and binding force of the compensation and on the possibility of retracting it; to examine compensation by non-monetary means such as khul‘; and to present the views of earlier and contemporary scholars. The researcher followed the inductive, deductive and comparative approaches, tracing the statements of the jurists of the four schools and deriving the ruling by relating it to its basis, namely the nature of the custody right. The research is organised in two sections: the first lays the groundwork (definitions and the general rulings of custody) and the second addresses compensation for waiving custody in exchange for money. The main findings are: the ruling depends on whose right custody is; the Maliki school and Ibn Taymiyyah permit such compensation and treat it as binding; the Hanafi, Shafi‘i and Hanbali schools uphold the khul‘ but void the condition of waiving custody because it is the child’s right; contemporary fatwas follow these two approaches; and the researcher inclines to the view that custody is the child’s right, so the child’s interest must be safeguarded in any compensation arrangement.
Keywords: Compensation; Custody (Ḥaḍānah); Waiver of rights; Khul‘; Custodian; Ward.