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Islamic perspective on child custody after divorce |
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Introduction:
Children are focus of gravity in Islamic
Family tradition and law. When spouse are together, upbringing their
child(ren) is paramount joint responsibility. Not only physical care
and health, but emotional, educational, and religious welfare and well
being are mutual responsibility. When spouses separate by divorce or
annulment, these welfare responsibilities get also split according to
best abilities of each parent. While fathers are vested with financial
burden and legal guardianship roles, mothers are given role of physical
carer and emotive guardian of child(ren).
Inherently, Islamic system
balances between multitude levels of child(ren)’s need. In recognition
of an infant’s need for female care, all the juristic schools give
first preference to a mother’s claim to physical custody of her young
child provided that she satisfies all the requirements for a female
custodian. After divorce during the period of the mother’s custody, she
is generally entitled to receive custody wages from the father to help
her maintain the child. Islamic Jurisprudential inferences Islamic law
on custody of children after divorce is based on several hadith
relating to how the Prophet sallalahu Alaihe wasallam dealt with cases
brought before him.
One of the key relevant hadith is the following:
According to Amr Ibn Shu'aib, a woman came to the Prophet* and said:
'Truly my belly served as a container for my son here, and my breast
served as a skin-bag for him (to drink out of) and my bosom served as a
refuge for him; and now his father has divorced me, and he (also)
desires to take him away from me.' The Prophet sallalahu Alaihe
wasallam said: 'You have a better right to have him, as long as you do
not marry again. (Hadith: Ibn Majah)
The mother is recognised as
generally the fittest person to take care of the children, because of
the instinctive love and tenderness she feels for them and her closer
contact with them throughout pregnancy, nursing, and childhood.
However, if the mother marries again she would generally forfeit her
right to custody. However, the period of female custody ends once the
child reaches a certain age of custodial transfer.
The Hanbali and
Shafii schools do not distinguish between girls and boys regarding the
duration of female custody. The Hanbalis maintain that the female
custodian should have custody from birth until the child reaches the
age of seven, at which point he or she may choose between parents. The
Shafiis allow female custody until the child reaches the age of
discretion and may choose either parent as custodian. The Malikis rule
that female custody of a boy shall last until he reaches puberty, and
for a girl until she marries. Under the Hanafi School, female custody
of a boy ends when he is able to feed, clothe, and cleanse himself.
Most Hanafi jurists set this age of independence at seven years,
although some set it at nine. Hanafi jurists differ on when a mother’s
custody of her daughter ends. Most maintain that the mother’s custody
ends when the girl reaches puberty, set at either nine or eleven years
of age. However, others allow the mother’s custody to last until the
girl reaches the age of womanhood. Conditions of custody Whoever has
custody of a child has to abide by conditions concerning residence and
Islamic upbringing, to ensure that the child's welfare is properly
cared for.
The court may, if necessary, enforce these conditions or
direct that the child be given to the next eligible custodian. The
father should have access to his children, and he remains financially
responsible for their maintenance and education even though they may be
under the care of their divorced mother or one of her relations.
Duration of custody and Transfers The duration of custody varies
between the Four Schools of Islamic Jurisprudence as detailed earlier.
There are different criterions for transfer of custody to next eligible
candidate as per table below:
| School of Law |
Transfer trigger |
Next eligible custodian |
Next eligible custodian |
Next eligible custodian |
| Hanafi |
Boy: 7 / 9 year age
Girl: marriage / 9-11 age |
Boy: Choice of either parents
Girl: Father |
Maternal grandmother /
paternal grandmother |
Mother’s sister (khala) |
| Shafi’e |
7 years age/ discretion age |
Choice of either parents |
Maternal grandmother / paternal grandmother |
Mother’s sister (khala) |
| Maliki |
Boy: Maturity
Girl: Marriage |
Grandmother |
Maternal grandmother / Khala |
Paternal grandmother |
| Hanbali |
7 years age |
Choice of either parents |
Maternal grandmother /
paternal grandmother |
Mother’s sister (khala) |
Source: Kuwaiti Encyclopaedia of Jurisprudence
Application of Sharia perspective in the West
Family courts in the UK and West in general are broadly in conformation
with Islamic Law of custody, especially Maliki School. Since current
social priorities are child(ren) centred in most aspects so is Islamic
Sharia. Other perspectives reported earlier reflect the social trend of
the time. For Mufti’s and Islamic Sharia courts choosing from Maliki
perspective is not strange especially if it reflects current social
policy trends.
Islamic Sharia councils have little control over
custodial orders. But they have a balancing act to perform when matters
are in Sharia courts. Currently Family courts are overlooking father’s
rights and input to child(ren) development. Recent high profile public
protests reflect that imbalance in the courts orders. There is
extensive lobbying and cry to give fathers significant contacts and say
in child(ren) development. All major decisions affecting the life of
child(ren) should be taken in consultation with both mother and father
even after separation/divorce. General Islamic Sharia principles have
major role to play in addressing that balance.
CHAPTER XIV. OF HIZANIT, OR THE CARE OF INFANT CHILDREN.
[In case of separation, the care of the infant children belongs to the
wife-. If a separation take place between a husband and wife who are
possessed of an infant child, the right of nursing and keeping it rests
with the mother, because it is recorded that a woman once applied to
the Prophet; saying:
"O Prophet of God ! This is my son, the fruit
of my womb, cherished in my bosom and suckled at my breast, and his
father is desirous of taking him away from me into his own care;"
to which the Prophet replied,
” thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger;"
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moreover, a mother is naturally not only more tender, but also better
qualified to cherish a child during infancy, so that committing the
care to her is of advantage to the child; and Siddeek alluded to this,
when he addressed Omar on a similar occasion, saying "the spittle of
the mother is better for thy child than honey, O Omar!" which was said
at a time when separation had taken place between Omar and his wife,
the mother of Assim, the latter being than an infant at the breast, and
Omar and Omar desirous of taking him from the mother ; and these words
were spoken in the presence of may of the companions, none of whom
contradicted him :-but the Nifka or subsistence of the child is
incumbent upon the father, as shall be hereafter explained. It is to be
observed however, that if the mother refuse to keep the child, there is
no constraint upon her, as a variety of causes may operate to render
her incapable of the charge.
AL-HEDAYA Vol. I (Hanafi Manual)
[Translated by Charls Hamilton, Published in London 1760) "When a man
who takes away his child from his mother, and then divorces her, is
obliged to return the child to her. A man having married a woman at
Busra, where she bears him a child, takes the child with him to Kufa,
and there divorces the mother; whereupon she brings a suit against him
for the child, contending that he must bring it back to her. If he took
away the child by her own desire, he is not obliged to bring it back,
and the woman should be told to go there and fetch it. But if the child
was taken there without the mother's direction, he must bring it back
to her. A man goes out from Busra to Kufa taking his wife and child
with him, and then sends her back to Busra and divorces her. In such
circumstances it is incumbent on him to send the child back to her, and
he may be compelled to do so." (Hidayah, vol. I.; Fatawa-i-'Alamgiri,
vol. I.; Durru 'l-Mukhtar, pg. 846; Jami'u 'r-Rumuz; Tagore Lectures,
1879; Bailie's Digest, p. 430.)
AL-RISALA (Maliki Manual) 33.09 NURSING (RADA') AND CUSTODY (HADANA) OF CHILDREN
A woman in wedlock shall suckle her own baby, except where women of her
status do not suckle their babies. A divorced woman shall suckle her
child at the child's father's expense. And she can take the reward for
such suckling if she likes.
The custody of children is the
responsibility of the mother after divorce. This condition shall remain
in force until a boy becomes sexually mature, or until a girl is
married away and the marriage consummated. If the mother dies or
marries another husband, the right of custody passes into the hands of
the grandmother; after her comes the maternal aunt. But if there are
more of the mother's maternal relations the right shall pass into the
hands of sisters and paternal aunts. And if there are none of these,
the right passes into the hands of agnates.
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The Quran |
Chapter: Al-Mulk (67)
Ayat(verse): 5 |
| 5 . And verily We have beatified the world ' s heaven with lamps , and We have made them missiles for the devils , and for them We have prepared the doom of flame . |
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