abdur rashiid
07-03-2008, 04:48 AM
Mufti Ebrahim Desai
What are the laws of Shari'ah pertaining to Custody and maintenance
of children in the case of divorce?
As an introduction, we should understand that our children are a trust of
Allah upon us. He has ordered us to fulfill the rights of this trust.
Primarily, children have two rights: to receive love and to receive proper
upbringing.
Both these rights are equally important. Love to the child enhances
compassion and proper upbringing enhances righteousness. While both the
parents have to make an effort to enhance both these qualities in the child,
generally the mother fulfills the greater part of showing love thus
enhancing compassion and the father fulfils the greater part of proper
upbringing thus enhancing righteousness. The absence of any one of these two
qualities (compassion or righteousness) are detrimental to the child. A
person without compassion is not loved and a person who is not upright is
not respected by society.
Only with a joint effort by both parents fulfilling their respective roles
can the children be balanced and fulfill a meaningful role in society.
Generally, a single parent is unable to adequately fulfill both the rights of
the child.
The death of one of the parents is beyond our control, and cannot be
avoided. However, divorce is within our control and should be avoided as far
as possible, especially if there are children involved. Although Shariáh has
addressed the rights of custody and visitation, when there is a dispute and
no understanding between the parties, children still suffer the lifelong
consequences of their parents' disputes and subsequent divorce. Therefore, a
healthy child is he who has been jointly reared by both parents.
However, if the parents are divorced, the mother has the rights of custody
of a minor. In the case of a male, till the age of seven and in the case of
a female till the age of nine (Shaami vol. 3: HM Saeed). The mother will
receive the rights of custody with 5 conditions: She is (a) a free person;
(b) adult; (c) sane; (d) trustworthy; (e) capable (Ibid pg. 556). Hence, the
mother's right of custody is forfeited if: 1) she remarries a Ghayr Mahram
(stranger according to Shariáh) of the child; 2) She demands remuneration
for the upbringing of the child if there is another woman to rear the child
without remuneration; 3) She does not attend to the child due to her leaving
the house very often; 4) Openly indulges in sin and there is fear of the
child being affected.
If the mother does not or is unable to exercise her right, then the
following persons have the right of custody in sequence: maternal
grandmother; paternal grandmother; real sister; maternal sister; paternal
sister, etc. Both of us are first generation Muslims, in both families.
After all the avenues of the female have been exhausted as explained by the
Jurists, the males have the right of custody in the following sequence: a)
father, paternal grandfather, real brother, paternal brother, maternal
brother, etc. So after the mother re-marries the Father is the one with the right to his children.
Irrespective of who (mother/father) has the rights of custody, the other
party has visitation rights according to mutual understanding and consent.
Generally, the party having the rights of custody uses the child as a weapon
to punish the other party by depriving them of visitation rights. This is
un-Islamic and also harmful to the child.
At all times the father of the child is responsible for maintaining the
child; in the case of a female, until she marries; while 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. (Ibid 604).
When the mother has the rights of custody but does not have a shelter to
stay in with the child, the father must provide shelter for both (Ibid pg.
561)
According to the Hanafi Madhab, the child does not have an option to stay
with whomsoever he wishes. After maturity or puberty only does the child
have a choice (Ibid pg. 567).
One mother has been married more times then I have fingers on both hands, and have used the rights of custody as a weapon to punish me by depriving me of visitation rights. This is un-Islamic and also harmful to the child. I have not seen my daughter for ten or more years and have been to jail for ninty days each year. Now I’m being fine one thousand dollars a month interest and now owe $110,000.00 or a sentence of four years in jail and can not get a passport.
4.59] O you who believe! obey Allah and obey the Apostle and those in authority from among you; then if you quarrel about anything, refer it to Allah and the Apostle, if you believe in Allah and the last day; this is better and very good in the end.
[4.60] Have you not seen those who assert that they believe in what has been revealed to you and what was revealed before you? They desire to summon one another to the judgment of the Shaitan, though they were commanded to deny him, and the Shaitan desires to lead them astray into a remote error.
[4.61] And when it is said to them: Come to what Allah has revealed and to the Apostle, you will see the hypocrites turning away from you with (utter) aversion
What are the laws of Shari'ah pertaining to Custody and maintenance
of children in the case of divorce?
As an introduction, we should understand that our children are a trust of
Allah upon us. He has ordered us to fulfill the rights of this trust.
Primarily, children have two rights: to receive love and to receive proper
upbringing.
Both these rights are equally important. Love to the child enhances
compassion and proper upbringing enhances righteousness. While both the
parents have to make an effort to enhance both these qualities in the child,
generally the mother fulfills the greater part of showing love thus
enhancing compassion and the father fulfils the greater part of proper
upbringing thus enhancing righteousness. The absence of any one of these two
qualities (compassion or righteousness) are detrimental to the child. A
person without compassion is not loved and a person who is not upright is
not respected by society.
Only with a joint effort by both parents fulfilling their respective roles
can the children be balanced and fulfill a meaningful role in society.
Generally, a single parent is unable to adequately fulfill both the rights of
the child.
The death of one of the parents is beyond our control, and cannot be
avoided. However, divorce is within our control and should be avoided as far
as possible, especially if there are children involved. Although Shariáh has
addressed the rights of custody and visitation, when there is a dispute and
no understanding between the parties, children still suffer the lifelong
consequences of their parents' disputes and subsequent divorce. Therefore, a
healthy child is he who has been jointly reared by both parents.
However, if the parents are divorced, the mother has the rights of custody
of a minor. In the case of a male, till the age of seven and in the case of
a female till the age of nine (Shaami vol. 3: HM Saeed). The mother will
receive the rights of custody with 5 conditions: She is (a) a free person;
(b) adult; (c) sane; (d) trustworthy; (e) capable (Ibid pg. 556). Hence, the
mother's right of custody is forfeited if: 1) she remarries a Ghayr Mahram
(stranger according to Shariáh) of the child; 2) She demands remuneration
for the upbringing of the child if there is another woman to rear the child
without remuneration; 3) She does not attend to the child due to her leaving
the house very often; 4) Openly indulges in sin and there is fear of the
child being affected.
If the mother does not or is unable to exercise her right, then the
following persons have the right of custody in sequence: maternal
grandmother; paternal grandmother; real sister; maternal sister; paternal
sister, etc. Both of us are first generation Muslims, in both families.
After all the avenues of the female have been exhausted as explained by the
Jurists, the males have the right of custody in the following sequence: a)
father, paternal grandfather, real brother, paternal brother, maternal
brother, etc. So after the mother re-marries the Father is the one with the right to his children.
Irrespective of who (mother/father) has the rights of custody, the other
party has visitation rights according to mutual understanding and consent.
Generally, the party having the rights of custody uses the child as a weapon
to punish the other party by depriving them of visitation rights. This is
un-Islamic and also harmful to the child.
At all times the father of the child is responsible for maintaining the
child; in the case of a female, until she marries; while 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. (Ibid 604).
When the mother has the rights of custody but does not have a shelter to
stay in with the child, the father must provide shelter for both (Ibid pg.
561)
According to the Hanafi Madhab, the child does not have an option to stay
with whomsoever he wishes. After maturity or puberty only does the child
have a choice (Ibid pg. 567).
One mother has been married more times then I have fingers on both hands, and have used the rights of custody as a weapon to punish me by depriving me of visitation rights. This is un-Islamic and also harmful to the child. I have not seen my daughter for ten or more years and have been to jail for ninty days each year. Now I’m being fine one thousand dollars a month interest and now owe $110,000.00 or a sentence of four years in jail and can not get a passport.
4.59] O you who believe! obey Allah and obey the Apostle and those in authority from among you; then if you quarrel about anything, refer it to Allah and the Apostle, if you believe in Allah and the last day; this is better and very good in the end.
[4.60] Have you not seen those who assert that they believe in what has been revealed to you and what was revealed before you? They desire to summon one another to the judgment of the Shaitan, though they were commanded to deny him, and the Shaitan desires to lead them astray into a remote error.
[4.61] And when it is said to them: Come to what Allah has revealed and to the Apostle, you will see the hypocrites turning away from you with (utter) aversion