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What is the Islamic right afforded to divorced parents on visiting their child?

Wa Alikum Salam

I have actually tried resolving this matter through Ulema but the other party had no interest in resolving it in that matter. I have tried setting up numerous meeting with Ulema which they refuse to attend. I just wanted some Islamic rulings regarding my situation as some sort of guidance as the other party has consulted with Jewish lawyers who have informed me that Shari`ah is outdated and they would not be looking towards Islam in resolving this matter. The other party agreed.

I have been to psychologist, to many Ulema during and after my marriage. But it seems for as long as you do not use the wealth to push your weight around, justice seems virtually impressible.

But, inevitably Allah is not blind. I just would like to please know what are our Islamic rights, if not anything else.

JazakAllah

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

 

We make dua Allah assists you in your challenges. Ameen.

In principle, it is incumbent on the male to provide for his ex-wife during her iddat[1] and to bear all the expenses of his daughter[2].

The right of custody is clearly defined in Sharia. Children are a trust from Allah upon us. It is His command to us to fulfil the rights of this trust. Primarily, children have two rights: to receive love and to be blessed with good upbringing. Both these rights are equally important. A healthy child is he who has been jointly reared by both parents. However, when parents are unable to reconcile effectively and undergo divorce, the right of custody in the case of small children is firstly conferred to the mother if she is unmarried[3]. This is effective in the case of a boy up to the age of seven[4] and a girl up to the age of nine[5]; after which the father has the right of custody. At all times, the father of the child is responsible for maintaining the child[6]; in the case of a female, until she marries, and in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible[7]. When the mother has the rights of custody but does not have a shelter to stay in with the child, the father must also provide shelter for both[8]. The child does not possess the individual right to choose to stay with whomsoever he or she wishes; however, he or she may choose to live with whomsoever they wish after maturity or puberty[9]. Nevertheless, both parents maintain visitation rights when the children are not in their custody.

Islam stipulates visitation right to both divorced parents[10]. Visitation rights should be mutually agreed. However, the interest, advantage and wellbeing of the child will have precedence in establishing the manner and time of visitation.The father will have the right to visit his child; however, he must do so in a way which suits the interest and comfort of the child. However, in a case such as yours where it is the requirement of the law, you may take your child to her father’s resident to visit him and if she suffers negatively on you not being present, then your motherly feeling will surely prevail upon you to comfort your child.

Sister in Islam, your sacrifices and your suppression of your emotions are well known by Allah Ta`ala, the All-Seeing. He knows your pain and your sacrifices for your daughter. Ask Allah Ta`ala to give you the courage and, after a few instances, the pain will be converted to sweetness of Imaan. Be strong and confront the challenges for the comfort of your daughter.

And Allah Ta’āla Knows Best

Hanif Yusuf Patel

Student Darul Iftaa
UK

Checked and Approved by,
Mufti Ebrahim Desai.

www.daruliftaa.net

 

References
[1] [al-Fatawa al-Alamgiriyyah, 1:552; Al-Ikhtiyar: 2: 202-210; Fatawa Mahmoodiyah: 13: 390; Bahishti Zewar: 1: 475/ 479/ 484]

[2] [Fatawa Mahmoodiyah, 13: 467/ 567/ 573; Bahishti Zewar: 1: 489; Radd al-Muhtaar ala ad-Durr al-Mukhtar, 5: 345, H. M. Saeed Company]

[3] [Sunan Abi Dawud, 2276; Mustadrak al-Hakim, 2: 207]

[4] [Radd al-Muhtar ala ad-Durr al-Mukhtar, 3: 566, H. M. Saeed Company]

[5] [Al-Ikhtiyar li Ta’lil al-Mukhtar, 3: 237]

[6] إذا وقعت الفرقة بين الزوجين، فالأمّ أحق بالولد، والنفقة على الأب

[Al-Hidayah, 2: 434, Maktabah Shirkah Ilmiyah; Tabyin al-Haqa`iq, 3: 291/ 325, Dar al-Kutub al-Ilmiyah, Beirut; al-Ikhtiyar li Ta`lil al-Mukhtar, 2: 241 / 7, Maktabah Haqqaniyah, Peshawar; Fatawa Mahmudiyyah, 12: 439, Dar al-Iftaa Jamiah Farooqiyah, Karachi]

[7] [Radd al-Muhtar ala ad-Durr al-Mukhtar, 3: 604]

[8] [Ibid, 3: 561]

[9] [Ibid, 3: 567]

[10]   حق الرؤية أو الزيارة لأحد الأبوين غير الحاضن مقرر شرعاً باتفاق الفقهاء، لصلةالرحم، ولكنهم ذكروا آراء مختلفة نسبياً، بحسب تقدير المصلحة لكل من الولد والوالد الذي يكون ولده في حضانة غيره.

 

قال الحنفية : إذا كان الولد عند الحاضنة، فلأبيه حق رؤيته، بأن تخرج الصغير إلى مكان يمكن الأب أن يراه فيه كل يوم. وإذا كان الولد عند أبيه لسقوط حق الأم في الحضانة، أو لانتهاء مدة الحضانة، فلأمه رؤيته، بأن يخرجه إلى مكان يمكنها أن تبصر ولدها، كل يوم. والحد الأقصى كل أسبوع مرة كحق المرأة في زيارة أبويها، والخالة مثل الأم، ولكن كما جرى القضاء في مصر، تكون زيارتها كل شهر مرة.

[Al-Fiqh al-Islami wa adillatuhu, 7: 740, Dar al-Fikr]

This answer was collected from AskOurImam.com, which is operated under the supervision of Mufti Hanif Yusuf Patel. He graduated from Jamiatul Ilm Wal Huda, Blackburn, U.K, with a distinction in Alimiyyah degree. He thereafter travelled to Darul Iftaa Mahmudiyyah Durban, South Africa, to train as a Mufti under the tutelage of Mufti Ebrahim Desai and Mufti Husain Kadodia.

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