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Visitation, Custody and Divorce

Answered as per Hanafi Fiqh by Askmufti.co.za
Q: My wife wants a divorce. We live hundreds of kilometers apart in different countries and we have a 5 month old daughter. What are my rights and obligations?
Should you divorce your wife at this stage then the following rules will apply:

1. Upon issue of the divorce, the wife must commence her iddat and it will have to be spent at the place where she is currently living, which I presume is her parents’ home. She shall have to spend three menstruation periods, which is what the iddat entails, without leaving the home for any reasons except for illness or serious injury (Allah forbid)

2. It is a major sin to divorce when the wife is in her menses. Therefore, if you are in contact with your wife then before issuing a divorce find out whether she has her periods or not. You can then ensure that the divorce will not take place during her haidh or menstruation periods. If you are not in contact with her, then I propose that you write the divorce to her in the form of a letter, with her name, address and other preliminaries at the top, and addressing her with the words …………if you are free of menses then I have given you one talaaq and if you are in haidh (menses) then upon the expiry of this haidh you will have one talaaq. This method will obviously ensure that talaaq falls in her clean period.
3. If the wife had left the marital home without your consent and approval then she is not entitled to any expenses, not now, nor after talaaq. If however, she had valid reasons to leave, such as physical abuse that threatened her body or her life, then she is still entitled to maintenance, now as well as for the duration of her iddat. After iddat there is no more maintenance for the wife. Maintenance during iddat will be the same as she receive whilst married to you.
4. As for the child, she will remain in the custody of the mother (after divorce) till the age of nine, or until she is capable of looking after her own affairs such as bathing herself, grooming herself, etc. Then you as the father have right of custody, though you may decide to leave the child with her mother even after the abovementioned age. The choice then will be entirely yours.
5. During the custody phase you have full visitation rights. With prior arrangement you can see the child any time you like.
6. The child’s expenses and maintenance is your responsibility, regardless of whether the wife left without your permission or not. This does not affect the father’s duty towards his child. You shall have to continue supporting her till she starts earning her own income or she gets married.
7. Maintenance for the child will cover her basic needs as she grows older, including, her food, clothing for the various seasons (not unnecessary), medical expenses, education fees, and so forth.
8. It is your choice to decide where the child should school (though the wife might not respect this).

Mufti Siraj Desai

This answer was collected from AskMufti.co.za, which is operated under the supervision of Mufti Siraj Desai of Darul-Uloom Abubakr, South Africa.

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