Istihsan in Contemporary Islamic Family Law Contextualizing Legal Reasoning for Maintenance and Child Custody

Abstract

Contemporary Islamic family law increasingly encounters social and economic circumstances that cannot always be resolved through the mechanical application of established legal rules. Maintenance and child custody are particularly important because their implementation involves changing family structures, unequal economic capacities, post-divorce vulnerabilities, and the protection of children's welfare. This article examines the relevance of istihsan as a method of Islamic legal reasoning in addressing contemporary family law issues, with particular attention to family maintenance and child custody. This normative legal study employs a conceptual and doctrinal approach by examining classical Islamic legal literature, contemporary scholarship, and relevant legal studies concerning istihsan, nafqah, hadanah, maslahah, and judicial discretion. The analysis is conducted through identification of the basic rule, examination of circumstances that make strict application problematic, assessment of the stronger legal consideration, and evaluation of its consistency with the objectives of Islamic law. The study finds that istihsan provides a controlled mechanism for moving from a general legal analogy or rule toward a more appropriate ruling when its application produces hardship, injustice, or the loss of a stronger benefit. In maintenance cases, this reasoning supports contextual determination according to economic capacity and actual family needs, while in custody cases it supports prioritizing the child's welfare without abandoning Islamic legal principles. The article contributes a contextual model of istihsan that connects classical legal reasoning with contemporary family justice while maintaining normative limits against arbitrary judicial discretion.