Şırnak Üniversitesi İlahiyat Fakültesi Dergisi

Öz

Classical Fiqh has established certain rules within the framework of shar‘i evidence to provide solutions to the problems that arise in all areas of life, from birth to death. At the forefront of these are the regulations relating to the family in which the individual was born, raised, and integrated into society, which is considered within the framework of family law, a subdivision of civil law in the modern era. The family, which is an important turning point in the life of the individual, established by marriage contract(nikāḥ̣). All the basic needs of children born in a marriage union established with a valid marriage contract are under the responsibility of the parents as long as the marriage contract remains valid continues. To ensure the healthy upbringing of children left unprotected in a family that has broken up due to the divorce of the parents or the death of one or both parties, to meet their basic needs, and to prevent any possible victimization from the outset, certain rights have been granted to the parents, if there are any, or to their close relatives, if there are none. Custody (hidāna), which is handled as a section under topics such as marriage contract, divorce (talāq), custody, and alimony in classical fiqh books, deals with the provisions regarding the provision of basic needs such as shelter, education, housing, alimony, and care of children who require care due to the divorce of their parents or the death of one of them. In this section, answers are sought to questions such as who should take care of the child, what qualifications the person taking care of the child should have, in what cases this right can be lost, the duration of care, and who is entitled to custody in principle. In the context of the questions mentioned in this study, it aims to compare the decisions taken in the text of the law (ḳanūn) called al-Mudawwana al-usrā, which is a reform in the field of Moroccan Family Law in 2004 with the Mālikı̄ sect. This comparison aims to provide a framework for the extent to which the law enacted in the modern era adheres to the Mālikı̄ sect and in which provisions it departs from it, and it is also expected that this comparison will give an idea of the impact of the sect's views and, indirectly, of concepts such as equality, freedom, human rights, and women's rights, which are widely emphasized in the modern era, on the new law in Morocco, a country whose population is almost entirely Muslim and the majority of whom belong to the Mālikı̄ sect. In the essay, the views of the sect were processed by referring to the high representative works of the Mālikı̄ sect, and then the provisions of the law text were conveyed by making use of the annotations written on the text of the law and the secondary literature on the law. In addition, a comparison was made by analyzing the case law of the Moroccan Court of Cassation and the decisions taken by the local and appeal courts. As a result of the study, it has been seen that the decisions taken in the law generally adhere to the sect's views but differ from the sect in some issues. The law recognised some new rights for children and parents in a dissolved family. By prioritising the welfare of the children, it made some decisions about parents and other relatives that differed from the views of the sect. For example, one of the most radical decisions is that the mother whose child is under the age of seven will continue to have the right of custody if she marries. Accordingly, the father, the other figure of the family, was granted the right to custody just before the grandmother, for instance. Apart from the nuclear family, only the grandmother's right to custody was maintained in the law, and the granting of custody to others was entrusted to the court in case of need. However, the law did not break its connection with the sect by stating that the provisions of the Mālikı̄ sect were binding in the areas that remained unaddressed. In addition, the study concluded that, unlike the sect, the courts, which were the enforcers of the law, considered custody a child’s right and prioritized the best interests of children in their decisions.