Negotiating Custody Rights in Islamic Family Law

Introduction The following examines the application of Islamic family law with regard to custody and custody rights in the Gaza city sharī‘a courts.1 Four objectives are pursued in the paper. First, it identifies areas of gender asymmetry in the legal code, which distinguishes female-oriented physical care of the ward (hadāna) from male-oriented guardianship (wilāya). Second, while examining the strategies adopted by men and women in claiming (or refraining from claiming) custody rights, the paper identifies areas of tension between the textually prescribed custody rights and their highly differentiated social construction. Thirdly, in fulfilling these objectives, it demonstrates the ways in which judges deal with various aspects of custody, and how, in the process, a knowledge of social norms overshadows the text; it will argue that today’s judges are still loyal to the heritage of Islamic jurisprudence, which asserts the concepts of fairness, consideration of the context, and protection of the weak. Finally, the conduct of judges is elaborated with reference to the notion of ijtihād (independent reasoning) in the contemporary application of Islamic family law. An illustrative case is presented to argue these points.

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