The Custody in Islamic Jurisprudence and Afghan Civil Law (A Comparative Study)

Abstract

It is an undeniable fact that society originates from the family, and the family is formed through the union of a husband and wife. From this union, children are born, who will later become the future leaders of society. Therefore, Islamic law and the Afghan Personal Status Law have defined the rights of children, among which is the right to custody. Based on this, I have chosen the topic "The Right of Custody for Children in Islamic Law and the Afghan Personal Status Law" as the subject of my research.

This research is a desk-based study, and I will rely on libraries and research resources to complete it. The goal of this study is to address the problems related to the right of custody in society, and it will clarify how both Islamic law and the Afghan Personal Status Law have addressed the child’s right to custody in detail.

The study of this topic is crucial, as in Afghan society, when a father dies or when divorce occurs between the parents, the child is often deprived of the mother’s custody. This results in improper upbringing and a lack of proper care for the child. At the conclusion of this research, it will be confirmed that Islamic law has provided a detailed treatment of the right to custody, though there are differences between the Islamic schools of thought (madhahib) on certain matters. Since the Hanafi school is the official school of thought in Afghanistan, the provisions of custody in the Afghan Personal Status Law align with Hanafi jurisprudence. The research will also clarify that the right to custody in Islamic law primarily belongs to the mother, followed by close female relatives, and this will be explained in detail throughout the study.