Question: I need advice for my brother; he has
being married for over 2 years now. He is very sad and unhappy in his
marriage. In the beginning before he got married he talked to his wife and
told here what he accepted of her i.e. that is she will be good religious
Muslim woman. And like most Pakistani girls she said she would listen and
be good etc. My brother then got married to her.
But after marriage, she the wife did not change her ways. She did not want
to be a practising Muslim woman, but kept to her cultural and Pakistani
ways. My brother lived in the UK and brought her over from Pakistan, but
with her behaviour and attitude he is very sad and upset, he has being
telling her to listen and behave, but she never listens. Rather then being
interested in the deen, she has no real interest at all. She is more
interested in watching Indian movies and listening to songs, reading love
novel etc.
What I’m trying to say is, my brother got married to her because she said
she will a good religious woman, but that has not happened. The woman he
married had no intention of being a practising Muslim but just wishes to
stick to her own cultural and Pakistani ways. And does not listen or obey
her husband
My brother thought he give her time to change, but she hasn’t. He has not
given her any divorces as yet. But now she is pregnant and child is on his
ways.
He is in real dilemma now, he was hoping not to have nay kids, as the
marriage may not last, but it has happened by Allah’s will. He was
thinking of getting married again to another woman, but now he has a kid
is on the way, and he does not know what to do?
1) What are the Islamic duties of a father, if he divorces or separates
from the wife, who has a child?
2) Who has the right to the child, the father or mother?
3) Who is responsible for the financial responsibility of the child? When
they are divorced?
4) What are the responsibilities or duties of the father, when he divorces
is wife and she takes the child. And he gets married to another woman. And
his divorced wife stays single or gets married. Does the father forget his
child from his previous marriage and carry on with his new life and family
or must he visit and keep contact with his child in his previous marriage?
Basically these are some of the key questions I need to ask, but can you
address what the Islamic Shariah says about these matters, ‘about when the
husband divorces or separates form his wife and they have a child and
everything related to that’. The father’s role in the future of his child
from his previous marriage?
Answer: In the Name of Allah, Most Compassionate, Most Merciful,
If and when a marriage unfortunately comes to an end, the problems of the
parties involved should not in any way affect the children. Children are a
trust (amanah) from Allah and they should be treated and looked after in a
proper manner.
They have many rights, of which two are of utmost importance: to receive
proper care and love, and the other proper upbringing (tarbiyah). Theses
rights of a child can not be fulfilled except with the joint endeavour of
the parents. The love, care and attention of the mother is just as
important as the upbringing and training of the farther.
In light of the above, divorce should definitely be avoided as much as
possible, especially in the case where children are involved. The
Messenger of Allah (Allah bless him & give him peace) said:
“Divorce is the most hated of all lawful (halal) things in the sight of
Allah” (Sunan Abu Dawud, no. 2178).
However, if divorce did take place, and both parties demand their rights,
then the right of custody will be in the following way. In should be
remembered here that there is nothing wrong in making a mutual
arrangement, as long as there is no objection from those who have a right
to custody.
The mother has a right of custody for a male child until the child is
capable of taking care of his own basic bodily functions and needs, such
as eating, dressing and cleaning himself. This has been recognized at
seven years of age.
Imam al-Haskafi (Allah have mercy on him) states:
“The custody of a male child is the right of the mother until the child
is capable of taking care of his own self. This has been approximated at
seven years of age, and the Fatwa (legal verdict) has been issued on this
age, as normally children are able to take care of themselves at this age”
(See: Radd al-Muhtar, 3/566).
In the case of a female, the mother has this right of custody until she
reaches puberty. This has been declared at nine years of age. (al-Mawsili,
al-Ikhtiyar li ta’lil al-mukhatr, 3/237).
The right of custody will be taken away from the mother if she:
1) Leaves Islam
2) Openly indulges in sins such as adultery and there is a fear of the
child being affected
3) She does not attend to the child due to her leaving the house very
often
4) She marries a non-relative (stranger) to the child by which the child
may be affected
5) She demands payment for the upbringing of the child if there is another
woman to raise the child without remuneration
In the above cases (when the mother no longer has the right to custody),
this right then transfers to the following in order:
a) Maternal grandmother, and on up;
b) Paternal grandmother, and on up;
c) Full sisters
d) Maternal half sisters
e) Paternal half sisters
f) Maternal aunts
g) Paternal aunts
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
b) Paternal grandfather
c) Real brother
d) Paternal brother
e) Maternal brother
The reason for this is that, in the early years, the mother and the other
female relatives are more suitable for raising the young child (regardless
of sex) with love, mercy, attention, and motherly care. The male child
after reaching the age of understanding (7) is in need of education and
acquiring masculine traits, which is why he is then transferred to the
farther. The female child, after reaching the age of understanding is in
need of being inculcated with female traits, which she receives by living
with her mother. After reaching puberty, she is in need of protection
which the farther offers.
In a Hadith recorded by Imam Abu Dawud in his Sunan, the Messenger of
Allah (Allah bless him & give him peace) said to a woman who complained
that her husband was intending to take her child away from her: “You are
more rightful of the child as long as you don’t marry” (Sunan Abu Dawud,
no. 2276 & Mustadrak al-Hakim, 2/207).
It should also be remembered that after the transferral of custody from
the mother to the farther, the boy remains in the custody of the farther
until puberty, at which point, if he is mature and wise, he is free to
choose with whom to live, or to live on his own. As for the girl, custody
remains with the farther until she marries (See: Qadri pasha, Hanafi
articles, 498 & 499).
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 totally against the concept of Islam and a grave sin. It is also
very 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.
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. (See
Radd al-Muhtar of Ibn Abidin).
With the above, I hope all your questions have been answered.
And Allah Knows Best
Muhammad ibn Adam
Darul Iftaa
Leicester, UK
Article taken (with
Thanks) from Darul Ifta
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