Implications of Child Custody in Islamic Family Law: A Case Study of Customary Courts in Oyo State, Nigeria

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Aminullahi Adetoro Yusuff

Abstract

Studies carried out to investigate the immediate and remote causes of marital discord arising from many of the customary courts in Oyo State, Nigeria, revealed that out of 127 divorce-related cases, 87 involved Muslim couples. Out of this number, 53 were linked to custody of children (al-hadanah which is a regulation that has to do with whom should a child stay after the dissolution of marriage for his/her proper nourishment, protection and wellness in the process of upbringing). This issue has led to many serious disputes among Muslim couples and their families in many localities of the state so much that, in many cases, it has led to street fights, vandalisation of property, civil unrest and legal battles. To worsen the situation, without recourse to Islamic marital jurisprudence, judgments are passed in the customary courts in favour of either of the couples. Therefore, the aftermath of the court verdict does not end this debacle in some cases, with to snowballing into spiritual fighting, where family members of the couples bewitch one another to take custody of the children. This problem is not new but it has risen to an alarming proportion these days. It is against this backdrop that an attempt is made in this paper to examine the practice of child custody after divorce or separation in Islam with a view to laying to rest the series of crises associated with the determination of who is to take care of children after divorce and to bring to people’s awareness the shariah rulings on child custody. The paper concludes that al-hadanah is a measure in disguise to safeguard indiscriminate severance of the cord of marriage and that Islam, through its system of law, has provided practical and lasting solutions to every imagined and real problem of man and that adoption of children in its various forms and types is forbidden in Islam.

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