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CUSTODY OF CHILDREN ACCORDING TO SHARIAH

Answered according to Hanafi Fiqh by DarulUloomTT.net

Question:

As Salaamu Alaikum,

  1. Will any of the Islamic sharia be broken if a woman fights for custody of her children, maintenance for them according to the law of the land?
  2. Can a woman receive alimony payment from her husband if they are divorced according to the sharia but upon divorce from the laws of the land as well… I hope I phrased my questions clearly…..jazack Allah khair ….may Allah reward you immensely ameen

 

Answer:

Wa Alaikum As Salaam,

  1. If the Muslim woman fights for custody of her children and by doing so, she takes away the custody rights of the father which Islam has given to him, then she will be violating the laws of the Shariah. However, if she fights for her rights of custody which Islam has given to her, then she will not be violating the laws of the Shariah. The same is with respect to seeking maintenance for the children. That is, if the father refrains from giving maintenance for the children, and he refuses to do so, then the mother can use the law of the land to get the maintenance. In this, she will not be violating the laws of the Shariah, since maintaining the children after divorce is a duty upon the husband.

With respect to the rights of custody which belong to her as the mother, and the right of custody which belong to the father, the following is an explanation of these laws:-

  • The boy child will be in the custody of the mother until he is capable of taking care of his own self. The Jurists have stated that this is at the age of seven years.
  • The girl will be in the custody of the mother until she reaches the age of puberty.

Upon completing seven years, the boy child will then be transferred to the custody of the father until he reaches the age of puberty. At this age, if he is mature and wise, then he will be free to choose with whom he wants to live with.

When the girl reaches the age of puberty, she will move into the custody of the father and remain with him until she marries.

Regardless of who has custody of the child, the other parent has visitation rights according to mutual understanding and permission.

Irrespective of where the child is, maintaining the child is the responsibility of the father. In the case of a girl, the father will maintain her until she marries, and in the case of the boy, the father will maintain him until he reaches the age of maturity where he can work and be gainfully employed.

According to the Fuqaha (Jurists), the right of custody will be taken away from the mother in the following cases:-

  1. If she leaves the religion of Islam.
  2. If she indulges in sins like adultery and other similar indecent acts and there is fear of the child being affected.
  3. If she does not look after the child properly, and she regularly leaves her home
  4. If she marries someone who is not related to the child.

If the mother loses the right of custody of the child in any of the above cases, then the right of custody will be transferred to other blood relatives in the following order:-

  • Maternal grandmother and above
  • Paternal grandmother and above
  • Full sister
  • Maternal half sisters
  • Paternal half sisters
  • Maternal aunts
  • Paternal aunts

If all the above females are not present, or are unable to fulfill the rights of taking care of the child/children, then blood related males will have custody of the child/children in the following sequence:-

  • Father
  • Paternal grandfather
  • Full brother
  • Paternal brother
  • Maternal brother

(Radd Al Muhtaar Vol. 3 Pags 555-558 H.M Saeed Karachi 1406 A.H)

  1. When a woman is divorced from her husband with a valid divorce in the Shariah, then her husband must provide maintenance to her during her waiting period (iddah) which is three months. After this, the husband is not required to give maintenance or alimony to the wife according to the Shariah. The wife must not seek alimony payment after her iddah comes to end. It will be unlawful (Haram) for her to seek such payment through the law of the land, and if the court orders the husband to pay alimony, then it will be Haram (unlawful) for the wife to accept it. She is required to return it to the husband. The wife must understand that upon the completion of her iddah (waiting period of divorce), she becomes a total stranger to the husband and there remains no relationship again between the both of them. Therefore, asking the former husband to continue to pay alimony, is in reality asking a total stranger to pay monies towards her maintenance when he has no relationship with her.

Regarding this, the jurists of Islam have stated, ‘since there no longer exists any relationship between the husband and wife, then no type of maintenance is binding upon the husband (Bahr Ar Ra’iq – Ibn Nujaim).

With respect to being divorced through the law of the land, then there is some explanation to this. If your matter went to the court and the court instructed your husband to divorce you, and then he uttered the word divorce to you, or he wrote on the paper and/or signed that he divorced you, then this is considered a divorce, and all the laws connected to divorce in Islam like the iddah period and maintenance during the iddah will come about.

However, if he did not say that he divorced you, or he did not write it on a paper or signed that he divorced you, and it was the court that issued a divorced to you, then this divorce is not valid according to the Shariah. This means that in this case, although the court on its own granted you a divorce, you are still in a legal marriage with your husband. No iddah period will be counted, and it will be Haram for you to marry another person since you are still married to your husband according to the Shariah.

If you were divorced according to the Shariah and then went through the law of the land to obtain legal documents for the divorce, then this is acceptable. There is no problem in this.

And Allah Knows best

Mufti Waseem Khan

04/12/2018

This answer was collected from DarulUloomTT.net, which is operated under the supervision of Mufti Waseem Khan from Darul Uloom Trinidad and Tobago.

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