Custody Of A Child In Islamic Law: Who And How?

By IMRAN, Ridwan Anuoluwapo

Introduction

This article focuses on the analytical study of child custody. In the Muslim-dominated communities today, divorce has been a factor that brings the question of who will be entitled to the custody of a child and how? Whatever form of divorce occasions separation and dissolution of marriage, Islamic law entitles the wife to custody of any young children of the marriage: female children until they are married and male children until they reach puberty. In practice, however, wives are denied custody of their children by threat or actual use of force. Some women do not pursue their rights to custody for fear that their former husbands will not provide maintenance to support the children. Often, those fears are real. However, a few women do have recourse to courts where eventually they obtain custody and order for maintenance of the children. The practice of denial of custody following divorce is widespread. Many men seek to further antagonise their former wives and use denial of custody for that purpose.

The meaning of custody

In the Arabic language custody is termed as ‘Hidhanat’.Custody means physical or material possession of the children, whereas its Arabic equivalent Hidhanat literally means ‘training’ or ‘upbringing of the child’.

According to the principles of established Muslim jurisprudence,  custody (hidhanat) is a right of the child and not of either of the parents or any other person claiming through them. The basic consideration always is to provide to the child the most natural, most considerate, and most compassionate atmosphere to grow up as a better member of society. Islam keeps the institution of family in high esteem and tries to preserve it. The rights and duties of the spouses have been prescribed in a manner to keep an ideal balance. While it is the man’s job to earn livelihood and provide sustenance to the family, the wife must give birth to the children, bring them up, and groom them. She is not required to work for her family or earn a living.

However, the practice of custody of a child in our societies today has derailed from the laydown principles or procedures of  Islamic law. What the law enjoys is the interest of the child, to enable him/her to receive the proper upbringing to exonerate the societies from abnormalities. It’s obvious that most of the children outside there are not properly upbringing which lowers their upright as a result of divorce between the two parents, the father who fails to discharge his duty to the mother and the child, Classical Muslim Scholars agree that subsistence of the child is incumbent upon the father even when he is in mother’s custody. Under Islamic law, it is not the responsibility of the mother to provide sustenance and protection of progeny.

Child Custody in Quran, Sunnah, and Fiqh

An in-depth study of Islamic law reveals that there is no verse in Quran on custody of minors but the classical Muslim jurists have referred to the verse of fosterage  (Ayat al Radha’at) which says that the mother should breastfeed their infants for two complete years. Therefore through Iqtada al Nass, it is inferred that in the years of infancy the right of upbringing and fostering the child remains with the mother. 

In the light of the hadith literature available and the decisions of Prophet Mohammad (PBUH) on the cases brought before him on child custody, three principles have been laid down while deciding the custody of a child.

1- The mother possesses the priority right of child custody so long as she does not remarry.

2- In a situation where both parents profess different religions, custody of the child should go to that parent who follows the religion of Islam.

3- When the child has gone past the years of minority (7 years) he will be given an option to choose between both parents.

According to the principles of established Muslim Jurisprudence, the father is considered to be the child’s natural and legal guardian because upon him is the responsibility of nafaqa of his child.  Mothers are the custodians till a particular age after which the custody either reverts to the father of the child is given the option by the court to choose between both parents, though no such age limit is stated in the texts.

What Islamic law says

Islamic law categorically gives custody of minor children to the mother: girls until they marry and boys until they reach the age of puberty and discretion. This ruling is based on the case that was brought before Caliph Abubakar by a grandmother challenging the attempt of Umar to take his child away from her. Caliph Abubakar decided in her favour adding that, “The hugs and kisses of that old woman to the child are more important and valuable than whatever material wealth you can offer the child”. This provision of Islamic law, besides granting rights to the wife, has the additional benefit of placing a restraint on indiscriminate divorce. In effecting a divorce the husband has to consider the unpleasant prospect of losing custody of the children. Muslim Jurists unanimously agree that custody of young children is rightly in the hands of the mother and her

relatives. In the order of priority outlined in Sharia, the father is fifth in line of eligibility to custody. So far, from all the known cases, the courts have unhesitatingly given custody to the mothers.

The custody of a child, if the mother is disqualified;

In the case where a mother is disqualified because of some other reasons, the following women will take her position accordingly:

1- Mother, whether a Muslim or a Kitab is

2- Mother’s mother how high so ever

3- Maternal aunt

4- The mother maternal aunt

5- The father’s mother

In other words, where no relations are willing and able to look after the child, the mother who has became disqualified by marrying a stranger may be appointed by the court as the guardian of her minor child. Thus, such a mother was preferred to a paternal aunt, who has married and was not in a better financial position than the mother.

Conclusion

Custody is a legal mandate because the child might die or get hurt if left alone. Therefore, he should be protected from death. The rule of law is obligatory if there is only one custodian. Therefore, women are often granted custody as a result of being closer to the child. Furthermore, they should have the ability to do what is necessary. When there is a dispute among relatives, they always refer to a judge or a ruler. When we say that women have more rights to it, it is because they are closer and more proper to look after, care, protect while awake or asleep, feed, dress, clean, calm, play with, treat and do all necessary in education. There is no doubt that these are duties for women and no man can perform them with patience, ever. Even if a man ends up winning custody of a child – a father or any of his relatives – this custody has to be represented by a woman from the side of the man, which is one of the conditions for scholars to allow men custody. Furthermore, it is mandatory if the custodian is not willing to accept the child or if there is more than one custodian and the child chose a certain one. Therefore, the custodian and the one in custody have the right to custody. In this case, it is a choice for the custodian and not a mandate. That is to say, if the custodian refrains, he cannot be forced to it because it is not forced on him. This is when we have multiple custodians. If the custodian refrains, he will not be forced, because it is a right that he can go back and assume again as long as he is still fit. It is a right that is renewed throughout time. The child’s right is honored. For example, when he accepts nobody except his mother and when the father and the child have no money, the mother is forced into custody.

Imran Ridwan Anuoluwapo, is a graduate of English literature from Usman Dan Fodio University, Sokoto. He is currently a year three student of law at the University of Maiduguri. His area of interest is Islamic personal law, constitutional law, oil and gas, commercial law, international law, corporate practice, and criminal law. His candid for mentorship and training. He is reachable vide/WhatsApp 08131077061 and imranridwan@gmail.com

References

1- Imam Shaukani, Nayl al Autar, Syria:Dar al Fikr, vol.  7, p.142

2- Al Bahaiqi, Sunan al Kubra (Beirut:Dar al Kotob Al- Ilmiyah) vol.8, p. 8

3-  Al-Quran 2:233

Al Bahaiqi, Sunan al Kubra, Dakkan, Vol8, p.4

Al Bahaiqi, op. cit., vol 8, p.3 ; Sunan Abu Dawood       (Karachi: Karkhana e Tijarat) vol 1, p. 305 8

4-  Ibn Qaddama, Al Mughni, Egypt: 1367, vol. 7, p.      614-16 (Hanbali scholar, 541-573 AH)

Najm ud din Jafar, Shara’i al Islam, Tehran, vol. 2, p. 1-2

5- Hadith Book, by Imam Mohammad ibn Ali Shaukani

6- Ibn Qayyam (1292-1350CE / 691 AH- 751 AH) was a Sunni Islamic jurist and commentator of Quran. His scholarship was focused on Hadith and fiqh.

Ibn Qayyam, Zad al Ma’ad, translated by Syed Rais Ahmad Jaferi (Karachi: Nafeees Academy) Vol 4, p.289