The Maqasid-Based Dimension of Awarding and Withdrawing Custody from a Non-Muslim Mother A Comparative Study in Light of Islamic Jurisprudential Schools, Algerian Legislation and Judicial Practice

Abstract

After marital separation, custody becomes one of the principal legal concerns because children are particularly vulnerable owing to their young age, physical fragility and developing mental capacity. Islamic jurisprudence and positive law generally give the mother priority in custody because of her close relationship with the child and her capacity for care and compassion. This priority, however, is subject to conditions, including the requirement that the child be raised in accordance with the applicable religious framework. The issue becomes particularly complex where the mother is non-Muslim, and becomes more sensitive where she is a foreign national seeking to relocate permanently with the child to a country in which the child’s religious environment may differ from that of the father. This study examines whether religious difference between the custodian and the child affects the mother’s priority in custody. It adopts inductive, analytical and comparative methods and approaches the issue through the objectives of Islamic law (maqasid al-Sharia), with particular attention to the objective of preserving religion (hifz al-din). The study examines divergent positions within Islamic jurisprudence and the relevant provisions of Algerian family law, together with Algerian judicial practice.