Jurnal El-Thawalib
Vol 7, No 5 (2026)

The Judge’s Ratio Decidendi in Determining Child Custody after Divorce: An Analysis of Maqāṣid al-Sharī‘ah in Decision No. 838/Pdt.G/2025/PA.Kab.Kdr

Haikal Nortamami (Universitas Sunan Giri Surabaya)
Ahmad Fauzi (Universitas Islam Tribakti Lirboyo Kediri)



Article Info

Publish Date
21 Oct 2026

Abstract

The study is motivated by the importance of protecting children's rights, as children are the most vulnerable parties affected by their parents' divorce. This research aims to analyze the judge's ratio decidendi in determining child custody and to examine the court decision from the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah. This research employs normative juridical legal research using three approaches: the statutory approach, the case approach, and the conceptual approach. The legal materials consist of primary legal sources (the decision, Law No. 1 of 1974, Law No. 35 of 2014, and the Compilation of Islamic Law) and secondary legal sources (books and scholarly journals), collected through library research and document analysis of the court decision, which were then analyzed descriptively-analytically to draw conclusions in accordance with the objectives of the study. The findings reveal that the judge's ratio decidendi consists of the grounds for divorce, the grounds for child maintenance, and the grounds for custody, which rest on the child's age; however, the custody ground is not explicitly elaborated through the principle of the best interests of the child. From the perspective of Jamaluddin Athiyyah's maqāṣid al-sharī'ah, the decision is implicitly in line with the protection of life (ḥifẓ al-nafs), intellect (ḥifẓ al-'aql), lineage (ḥifẓ al-nasl), family (ḥifẓ al-usrah), and children's rights (ḥifẓ ḥuqūq al-aṭfāl), but the protection of children's education (ḥifẓ al-tarbiyah) is not yet explicit. Based on this single case, this study recommends that judges elaborate the custody ground separately and integrate maqāṣid al-sharī'ah values explicitly.

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Journal Info

Abbrev

thawalib

Publisher

Subject

Religion Law, Crime, Criminology & Criminal Justice

Description

Jurnal El Thawalib Journal focuses its study on issues related to Islamic law and society in Muslim and non-Muslim countries from various perspectives, both theoretically and practically. The primary objective of this journal is to serve as a medium for the communication of original research results ...