IMPLEMENTASI HADHANAH DI INDONESIA DALAM PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF

Abstract

 This study aims to analyze the implementation of hadhonah (child custody rights after divorce) in Indonesia from the perspective of Islamic Law and Positive Law. Hadhonah in Islamic Law is a moral and legal obligation to ensure the welfare of children, where mothers, in principle, have primary rights as long as they meet the requirements of being good caregivers. Meanwhile, in Indonesian positive law, the regulation of hadhonah is contained in Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law (KHI), specifically Article 105, which grants custody rights to mothers for children who are not yet mumayyiz, as well as the right to choose to children who have reached that age. This study uses a normative legal method with a conceptual, legislative, and comparative approach. The results show that the implementation of hadhonah in Indonesia reflects the harmonization between Islamic Sharia values and national legal principles by placing the best interests of the child as the main basis in every religious court decision. In addition, the jurisprudence of the Supreme Court plays an important role in interpreting and adjusting fiqh provisions to social and psychological dynamics, as well as child protection in the modern era. Thus, the implementation of hadhonah in Indonesia not only upholds religious norms, but also ensures substantive justice and maximum protection for children as legal subjects whose rights and welfare must be protected.