Determination Of Child’s Custody Under The Marriage Act And Islamic Law

Y.A Usman Esq

Introduction:

Basically, the determination of custody of a child usually arises after the dissolution of marriage regardless of how the marriage was conducted or celebrated, either the marriage was contracted under the Marriage Act and Matrimonial Causes Act or such was conducted in accordance with the dictates of Islam.

Though, different factors may lead to the discord between husband and wife, and marriage may be dissolved by the request of either of the parties. However, the rights of a child are not affected by the divorce; he or she is entitled to parental cares such as right to be well trained, education, proper upbringing, accommodation and maintenance, and should not be denied the parental love, affection and other related rights.

The custody of a child is one of the basic rights that every child must enjoy and a child must not be deprived of it. Therefore, this right has been given a statutory flavour under the Marriage Act and Islamic law in order to protect it from being disregarded.

Concept of Custody Under the Marriage Act and Islamic Law:

The term “Custody” has been defined under different laws. In this regard, the paper intends to first consider the general meaning of the term before considering the statutory definitions of it and relate or compare them together.

Generally, the term “Custody” is defined as the care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding.[1]

In Otti v. Otti[2] Custody is also defined as

 “essentially concerns control, and the preservation and care of the child’s person, physically, mentally       and morally; responsibility for a child in regard to his needs, food, clothing, instruction, and the like”.

Under the Islamic law, the term “Custody” in Arabic language is called Hadhanah which literally means ‘training’ or ‘upbringing of the child’.[3]

In the case of Tanimu v. Bashir[4]

“Custody (Hadhanah) in Sharia terms means protection and shielding of the young ones from the hazards of life at their tender age. It involves looking after a child in terms of maintaining where he lives, preparing his bed and taking good care of his personal hygiene.”

The Malik Jurist defined Custody of a child under Islamic Law to mean:

“Protection and care of a child in his worldly affairs such as making provision for feeding, clothing and cleanness of his body.”

Having considered the foregoing definitions from the two angles, one can safely posit that custody of a child is an act of looking after a child, taking good care of him by providing him with the basic necessities of life such as food, clothes, suitable accommodation and other basic needs.

Under The Marriage Act:

It is settled that, after the pronouncement of dissolution of marriage by a competent court, custody of a child is never awarded as a reward for good conduct of either parties nor is it ever denied as punishment for the guilty party’s matrimonial offences. Both parents have rights to custody of the children. The court in determination of custody of a child of the dissolved marriage, considers two factors as provided under section 71 (1) of Matrimonial Causes Act:

“In the proceeding with respect to the custody, guardianship, welfare, advancement or education of children of the marriage the court shall regard the interest of those children as the paramount consideration, and subject thereto the court may make such order in respect to these matters as it thinks proper”.

From the above provision, a court in determining custody of a child is bound to do the followings;

• The court must consider the interest of the children as a paramount consideration.
• The court must exercise its discretionary power to make an order in respect of the custody.

In considering the two aforementioned points, the custody of the children may be granted to either the husband or wife even to the third party if the court so considers it as the best to the interest of the children[5]. It should be noted that, after the court considers the interest of children, it will now use its discretion to grant the custody to any of the parties.

The question here is that: how can “best interest of the children” be determined by the court as stated in the Act?

To determine what constitutes “interest of children” the court can only consider the circumstances surrounding the case at hand such as age, sex, personal preference of the child, the emotional attachment of a child to a particular parents, mother or father; financial status of a particular parent to ensure that the children are given a proper upbringing, education and the likes.

In the case of Odusote v. Odusote[6] it was held that:

“Interest of the children would include their welfare, education security and overall well being and development.”

Also in the case of Okoro v. Okoro[7] on the proper proceedings relating to custody of children,  Karibi- Whyte JSC stated in Williams v. Williams thus:

“It is now settled that in proceedings with respect to the custody of children, the court shall regard the interests of the children as of paramount consideration. The determination of the welfare of a child is a composite of many factors. Considerations such as the emotional attachment to a particular parent, mother or father; the inadequacy of the facilities, such as educational, religious, or opportunities for proper upbringing are matters which may affect the determination of who should have custody. What the court deals with is the lives of human beings and ought not to be regulated by rigid formulae.”

The above cases state certain factors that court may consider to determine what constitutes the interest of children.

Ordinarily, the custody of children of tender age, male or female is to be awarded to the mother. There are different cases in which the age and sex were considered to determine what constitutes the interest of children.

In considering the age of children as a factor to determine the interest of children, the court may grant the wife the custody of children even though there is no laid down rules which serve as guidelines that provide that a minor or a female child should remain in the custody of the mother when a marriage is dissolved.

In Odusote v. Odusote (supra) the court held thus:

“Although there is no rule of law which says that a female child or a child of tender age should remain in the custody of the mother when a marriage is dissolved, however it cannot also be seriously disputed, sentiments apart, that children who are female and in their growing or formative years are better cared for and looked after by the mother except the contrary is shown by credible evidence. It is generally presumed that such children would be happier and more at peace because of the closeness and intimacy, which breed affection and familiarity with the mother, who most of the times, was there for them.”

It is important to note here that, in case the court at its discretion consider the parental affection, emotional attachment and grant the mother the custody of a female and the child of a tender age, if it happens or the court observes that the mother suffers from moral misconduct, infectious diseases, insanity, lack of reasonable means or is cruel to the child, she would not be granted the custody of such children.

Furthermore, the court may also in its discretion consider the wishes of the child, arrangement made for the education of children, and conduct of the parties in determining who to have the custody.

It is should be further noted that, according section 71(3) of Matrimonial Causes Act, the court if considers it desirable may award the custody of children to the third party i.e.; a person other than a party to the marriage.

The court in deciding the custody of a child may make at its discretion the following orders;

• That the children the parties should have divided custody of the children i.e.; the mother may have custody during the school year and the father might have custody during the vacation.[8]
• That the father should have the custody of some children and the remaining children will be under the custody of mother, this is called split custody which is very uncommon.
• That the parties should have joint custody of their children. One may have physical custody and the other will have legal custody.ie; both parents share responsibility. The legal custody gives one the right to make significant decisions regarding the child while the physical custody gives one the right to physical care and control of the child.[9]
• That one party should have total custody of the children without the involvement of other party.
• That one of the parties should have custody of the children pending the determination of divorce proceeding. Though, ancillary relied of custody can be sought after the principal relief of dissolution of marriage has been first instituted. However, the custody of a child can be temporarily awarded to one of the parties pending the determination of divorce. This is called temporary custody.
• That the third party should have custody of the children either permanently or as an interim measure, if the court considers it to be in the interest of children. The court can only make this order if;
• Where it is obvious that neither of the parties to the marriage is genuinely interested in the welfare and upbringing of the children.
• Where neither of the parties to the marriage has applied for the custody.
• Where in the opinion of the court that neither of the parties to the marriage is a fit and proper person to have custody of the child.[10]

Section 71 (4) of Matrimonial Causes Act also gives room for the parents to have access to their children awarded to the third party.

Under Islamic Law

To lay a proper foundation for the issue of custody under Islamic law, it is apt to first consider the narration of Abdullah Ibn Amru of an episode involving a woman who brought her husband before the Prophet Muhammad (S. A. W) when her husband wanted to force her to surrender the custody of their child.

“…. O Messenger of Allah my womb was a vessel to this son of mine, my breasts were a means of quenching his thirst, and my lap was a place of protection for him. Yet his father has divorced me and wants to take him away from me. The prophet (S.A.W) said: you have more right to him as long as you have not married another person”[11]

According to the above narration, Islam law entrusts the custody of the children at their tender age to the lenient, tender and safe hands of their mothers.[12] This serves as the basic of Islamic Law in considering mothers before the fathers when they separate and a dispute arises on that should have the custody of their young children.[13] In other  words, mothers are more compassionate in taking good care of children and more patient in dealing with any situation arises in the course of that.

Islam has preference for the mother if the wife and the husband are legally separated before the father can be considered to have custody of his children. However, there are certain conditions which the mother should satisfy before she can be considered to have the custody.

The Maliki School of jurisprudence is of the view that before custody can be awarded to the wife, the following conditions need to be fulfilled;

• She must be sane;
• She must be chaste and trustworthy;
• She should not be adulterous nor have a disease that may likely affect the health of the ward under her.
• She must not be married to someone else.[14]

As to issue of re-marry, there are divergent opinions as to whether the mother loses the right to custody by marrying to another person. Some scholars are of the view that, if the mother gets married to another person and the person is a strange, i.e.; a non relative to the father, the custody will be reviewed but if the person is a relative, there is no need for review.

According to Hanbali School of thought, the conditions which must be fulfilled are as follows;

• She must not be insane or mentally deranged;
• She must free from a serious disease such as leprosy;
• She must be able to protect the child or guide her body intellect and religion and belief;
• She must turn to a disbeliever[15].

Maliki and Hanafi Schools of thought did not consider different of religion between divorced couples as a factor for disqualifying a mother from granting the right to custody[16]. This is because the most factors to be considered in custody are care, love, and well being of the children.

It is worthy to note that, some scholars are of the view that, in a situation where the parties profess different religion, the one practices Islam remains with the custody. In other word, if either of the parties is a non- Muslim, the custody of a child will be awarded to the party who is a Muslim. The above view is premise on hadith of the prophet when a man called Rafi’ bn Sinan accepted Islam but his wife refused to accept it. The Prophet then made the mother sit down to a side and the father to another side, and made the son sit down between them. The son inclined to his mother. The Prophet then said: “O Allah! Give him guidance” then he inclined to his father and he took him. Though, other scholar opined that, being a non Muslim of the mother doesn’t serves as a hindrance for a mother to have the right to custody but it is just a pre- condition for custody.

It is important to further note that, in a situation where the mother is given the custody of a child, father still has a right to supervise and control over the well being of a child, when the mother permanently travels to another place which is very far from the father usual place as this hinders the father from supervising his child, the mother loses the right of custody, except the mother temporarily travels.

Duration of Custody ‘Hadhanah’ under Islamic Law:

From the aforementioned views, there is no doubt that under Islamic law, mother is considered first to have the custody of her children provided that she is not disqualified by her failure to satisfy the laid conditions.

However, mother does not have permanent custody of her children. The custody awarded to mother terminates as follows;

• The right of a mother to the custody of a male child terminates when a male child attains age of puberty. Though, there is another view that says it terminates when he replaces milk teeth with permanent teeth.[17] But majority hold the view that, it terminates with the attainment of puberty.
• The right of a mother to the custody of a female child terminates when she is married and the marriage is consummated.[18]

The Right of Father to Custody of Children:

Islam doesn’t give a mother permanent custody of her children. As noted above, the mother may loss her right to custody if any of the above impediments arise. In absence of these impediments, the right of the mother to the custody of male child ends when the male child attains age of puberty and in a case of female child it extends to the time a female child is married and such marriage is consummated. However, custody of children goes to the father in a circumstance in which the mother is not fit, loses or forfeits her right to custody. Noted here that, the father can get the custody if the following persons are not available or they are available but not fit to have the custody;

• The mother’ s mother how high whatsoever;
• The maternal aunt;
• The mother’s maternal aunt
• The father’s mother;
• The father;
• The paternal aunts;
• The child’s sister;
• The father executor;
• Anyone appointed by the court and
• The child brother, uncle and paternal grandfather.[19]

From the foregoing, if the right of custody awarded to the mother is lost or forfeited by any of the reasons previously explained, the right will automatically pass to the mother’s relatives, and the first person to be considered is a mother to the wife i.e grandmother from the side of mother side, then Maternal aunt, mother’s sister, paternal aunt, the mother’s birth in the absence of the above, thereafter the custody now shifts to the father or his relatives.

Custody of An Illegitimate Child:

An illegitimate child is a child born out of wedlock i.e. no valid marriage is conducted between the parties or conducted but the pregnancy and delivery of a child does not fall within the gestation period. According to Islamic law, the child needs to be born within the generally accepted period of gestation.[20]

Under the common law, custody of a child born out of wedlock is always awarded to a mother and in a very real circumstance such custody may be given to the father if he can establish the fact that the mother is not fit to look after the illegitimate child. However, in line with the Matrimonial Causes Act[21], children of the marriage defined for purpose of custody to include any child of the husband and wife born before the marriage whether legitimated by the marriage or not and any child of either the husband or wife (including an illegitimate child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife.

Furthermore, by the virtue of section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a child by the reason of the circumstance of his birth should not be subjected to any disability or deprivation. In view of the foregoing, common law principle is not applicable to the case of an illegitimate child in determining whom to have custody.

On the other hands, Islamic law does not attributes or ascribes a child born outside wedlock to a man who has illicit affairs with a woman, thus, since an illegitimate child can only be attributed and ascribed to a woman; the mother has a right to the custody of such a child. Note here that, if the mother is not considered fit to have the custody, the custody goes to her mother i.e. the mother’s mother.

Conclusion:

Undoubtedly, there are slight similarities and dissimilarities between the position of the Marriage Act and Islamic law regarding the determination of custody of a child, some of which are as follows;

• Under the Marriage Act, determination of custody is solely placed at the discretion of court, though; court is to consider the best interest of child while determining which of the parents most deserves the custody. Whereas, Islamic law originally gives preference to the mother over the father i.e. it considers the mother to have the custody of her child before the father by considering the affection that mostly attaches to mother which a child needs most. Islam does not ignore the best interest of child, which is the major reason it subjects the right given to the mother to certain conditions failing which may lead to the withdrawal of the right.
• According to Islamic law, the custody of a child will not be awarded to the mother and if same is awarded will be withdrawn from the mother; if it is established that the mother is suffering from moral misconduct, infectious diseases, insanity and the likes. Likewise under the Marriage Act, the court has the responsibility while using its discretion to determine what constitutes the best interest of children to consider the health status and character of the mother.
• Under the Marriage Act, custody of an illegitimate child ordinarily awarded to the mother but same may pass to his father if the father so requests for that with the condition that the mother is unfit to have the custody. Unlike the Marriage Act, under Islamic law, the custody of an illegitimate child remains with the mother and if the mother is not fit, it can only be transferred to her relatives.

Y.A Usman Esq (Ar-rohees),K.K Eleja & Co.,Phone: 07033589425, Email: rohees@gmail.com

[1] Bryan A. Garner (edn) Black’s Law Dictionary (9^th edn)

[2] (1992)7 NWLR (Pt. 252) 187 at 210 para (E-F)

[3] Aeyesha Rafiq, Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World (Analysis).International Journal of Humanities and Social Science- Vol.4 No. 5 (2014)<

[4] (2014) 2 SQLR (Pt. IV) 663 at 678 paras. B-D)

[5] Section 71 (4) Matrimonial Causes Act

[6] (2012) 3 NWLR (Pt. 1288) 478 at 505

[7] (2011) ALL FWLR (Pt. 572) 1749 at 1780, paras. D – G

[8]  Nasiru Tijani, Matrimonial Causes in Nigeria- Law and Practice (2017) Renaissance Law Publishers Ltd. 2^nd edn. P.150

[9] Bryan A. Garner (edn) Black’s Law Dictionary (8^th edn) p, 412. See also, Nwosu v. Nwosu (2012) 8 NWLR (Pt. 1301) 1 at 32 paras F – H

[10] Nasir Tijani, Op. cit, p. 153

[11] As- Sayid U Sabiq (1403H/1983), Fiqhus Sunnah, Darul Fikr, Lebanon, 4^th Edition, Volume II, p. 289

[12] Mutalib A. Ambali, The Practice of Muslim Family Law in Nigeria. Princeton & Associates Publishing Co. Ltd. Lagos (2014) 3^rd Edn. P, 325

[13] Mutalib A. Ambali, Op. Cit, p, 328

[14] Mahammad Al-Kafiy, Ihkamul Ahkam, Commentary on Tuhfah, Darul Fikr. P. 108

[15] Abubakar Jabir Al-Jazairiy (1396H/1976), Minhajul Musllim, 8 Edition, Darul fikr, Lebanon. Vol. 2 p. 392 – 393

[16]  Wahbah Al-azzuhaili (1431H/2010), Alfiqhul- Maliki Al- Muyassir, Darul Al-kalam, Damasco. vol. 2. P, 295

[17] Aliy Bn Abdul Salami At-Tasuli (1370H/1951), Al-Bahjah Commentary on Tuhfah, Mustafa Al-Babi Al- Halabi and Sons Press, Cairo.

[18] Ibid. See also, Abdul Rahman, Fiqh Al-Mazahib Al- Arbah. Vol.4, p. 441- 442

[19] Al-mudawwana Al-Kubrah, Vol. II, P. 359

[20] When a child is born through a valid marriage, but under a period of six months or six months less five days, from the date of marriage, then the child cannot be attributed to that husband.

[21] Section 69