ESL Blogs

• Islamic law the rights and duties of the mother and the father of the child are clearly defined (Q)

if marriage is terminated, perhaps the biggest problem will be lifted up to resolve the care of the child. In Islamic law, following all Schools and sects, the guardianship of child primarily belongs to the father. In non attendance of father, it belongs to the next male kinsman in the agnatic line, after the father , paternal grandfather is given priority to take the care of child. The mother may never be guardian of her infant children, be they male or female. In Islamic law, guardianship in three forms is classified. One is care custody ( Hadannah) and other is guardianship  of person ( legal guardianship) and finally guardianship of property .

Hadannah ( care custody)

The legal meaning of Hadannah is defined as to keeping of person who can not be independent and can not carry his or her own responsibility , raise and protect him or her from what can hurt :- Muhammad IBN Ismail in his Subul Al- Sabil, an adult and competent person must take the care of her or him ( child).

This covers full responsibility for child ‘s immediate needs ; including feeding him or her, keeping him or her well, sending him or her to school and normal medical care. On the other hand , following the term of guardianship ,  guardian has full responsibility for children’s welfare ; including decision concerning  educational and non emergency medical treatment. The right of child custody is unquestionably given to father or next male kin whereas mother or female in kin has the right of residential custody.

At the time of mother ‘s period of custody overall control of child is in hand of the father ( or next male kinsman). It is father who is guardianship of the child. The father will make all important decision regarding their upbringing. For example father alone can decide on children’s education or if they may travel  , and of course he may contract the child in marriage.

The mother’s right of custody:

Islamic law bases it’s decision on giving the right of custody to the mother based on Quran, Sunnah and Consensus. Quran enjoins that should not harm the mother by isolating her offspring from  her, (verse 2233).  Prophet Mohammad (s) said a woman to keep her child with her unless you remarry. There is a consensus among the jurists that mother is more fit for child’s welfare than father .

Parental rights for Custody

If mother is died or deprives to the mother of her right of child custody somehow, there is dissenting or disagreement among the schools as to who is entitled to the custody of infant child. The Hanafis and Malikis hold that Hadannah is the right of females and following the right will pass to the kinswoman of mother. The shafis and Hanbalis as well as the shia , do not accord the great priority to female line. Therefore, if mother has no surviving female ascendant , in the shafi and Hanbali law the custody right passes to the father and , in his absence, to his ascendants. In Shia law , the custody or hadannah right passes in all cases to the father , in his absence , to the paternal grandfather  provided that mother is dead or she has lost her right of hadannah.

Qualifications of the custodian

In order to safeguard the welfare of young children, all schools and seets are acceded that some specific conditions should be fulfilled before the person is given the right of custody:-

1)    Any dispute is not lifted up among the jurist on the issue that the custodian must be an Adult so that child is cared well.

2)    Two self evident requirements are that the custodian should be an adult and of sound minded neither insane nor feeble minded.

3)    The custodian must adhere to the religious and moral codes.

4)    Mother whose devotion to prayer or fasting or other acts of worship are instance, then it may cause for her to neglect her child would be considered unfit for custody.

5)    The person having the right of custody must be trustworthiness. She must not influence the life of children in any way of immoral. That is in order to preserve  the morality of the child.

6)    Finally, the custodian should be physically able to take proper care of the child and free from contagious diseases.

The remarriage of the mother

There are differences among the School; hanafi , maliki , shafi  schools as well as some jurists of Hambali school held mother’s remarriage is a cause for removal of child custody. Others said that remarriage has no effect on custody in the absolute sense. This view was given by Hasan – AL- Basri and IBN Hazam referring to the fact of Umm Salmah ( who was wife of Prophet). This opinion was seldom accepted by the majority of contemporary jurists. However , if the mother remarries a relative of the child ( only  in case of female child) then she will be able to keep up the custody. This was the position adopted by the Hanbali School and by Abu Hanifa.

Unity of religion

If the mother of the child is a Christian and a Jew , then whether she ( mother0 will lose the right of custody or not . the Hanafis and Malikis hold that custodian of the child need not herself be muslim. Whatever , such a mother will lose the right of hadannah if she attempts to impose her faith upon the child. According to the doctrine of the shafi and hanbali  a non muslim woman may never have the custody of a muslim child even if she is the child ‘s mother . Jurists have a general maxim “ no guardianship of a non muslim over a muslim”.

The period of custody:

Following the doctrine of Hanafi , mother has the right of custody until her male child attains age of seven and a female child attans age of nine. In Maliki law the mother’s custodial right lasts, in case of boy, until he attains puberty and , in case of a girl until she is married. The shafi  School gives both girls and boys the option, once they have attained the age of reason ( usually assumed to be at seven years), to choose whether to remain with mother or to live with the father. In Hanbali law, this right to choose is given only to boys. In Ithna’ asharis sect of the shia the mother’s right of hadannah lasts until her sons are two and her daughters are seven years old.

Legislations in the muslim world

In many countries of the muslim world the mother’s custodial rights have been extended so that she is not deprived of her right to live with her children at such early ages. For example , in Morocco, in accordance with the provision of law, the right of custody belongs first to the mother of the child, then to the father and then to the maternal grandmother if non of these people are able to assume custody the court will decide upon the person most suitable to assume the function. It will take the opinion of the child male or female, into account if the child is over 15. In Iran , where Ithna Asahri Law applies, Article 1130 of the civil code now provides that a minor is under the natural guardianship of the father and the paternal grandfather. The custodial care of the children is in the hands of the mother until both male and female children.