Reinterpretation of Article 105 of the KHI: Pesantren as Institutional Hadhanah for Neglected Children

Mochamad Faisal (Sekolah Tinggi Dirosat Islamiyah Imam Syafi’i)
Syailendra Sabdo Djati (Sekolah Tinggi Dirosat Islamiyah Imam Syafi’i)

Jurnal Ilmiah Multidisiplin (JUKIM)
Vol. 5 No. 04 (2026): Juli: Jurnal Ilmiah Multidisiplin

Childcare (hadhanah) in Indonesian Islamic family law remains predominantly constructed within biological family relationships, particularly through Article 105 of the Compilation of Islamic Law (KHI), which places parental figures as the primary holders of custodial rights. This construction becomes problematic when parents and extended family members are unable to provide adequate care for neglected children. Purpose: This study aims to analyze the legal position of Article 105 of the KHI and the scope for its reinterpretation concerning non-family caregiving institutions, examine the juridical and Islamic legal foundations that may support pesantren as alternative caregiving institutions, and formulate a normative construction of institutional hadhanah. Methodology: This study employs normative legal research with a library research design, using statute and conceptual approaches. Primary legal materials include Articles 105 and 156 of the KHI, Law Number 35 of 2014 on Child Protection, Law Number 18 of 2019 on Pesantren, and Government Regulation Number 44 of 2017 on the Implementation of Child Care. The materials were analyzed through descriptive-analytical, textual, systematic, and teleological interpretation. Findings: The study finds that Article 105 remains the principal legal basis for parental hadhanah, but a systematic interpretation with Article 156 and child-protection regulations provides normative space for alternative caregiving when family-based care fails. Pesantren may be considered within this framework, but their status as hadhanah institutions is not automatically recognized under existing law. The proposed model requires five institutional ahliyyah criteria: legal legitimacy, adequate caregiving facilities, pedagogical and psychological competence, reliable child monitoring, and communication with biological families. Implications: The model requires judicial authorization, periodic supervision, and clearer regulatory standards to ensure accountability and protection of the child’s best interests. Originality: The novelty of this study lies in developing institutional hadhanah as an institutional-functional reinterpretation of Article 105 of the KHI by integrating Islamic family law, maqashid al-shari‘ah, child-protection principles, and the institutional characteristics of pesantren.