Question Summary:
Is this Marriage Valid now? If not who should the kids stay with ? My Sister is a working Woman and she is taking care of her Kids from their childhood and she wants to keep the children.

Question Detail:

My Sister is not having good relationship (due to some confusion of an extra Marital Affair of my Brother in Law with some Lady, which has not been proved so far.) with her Husband from last three years and from last four months she is staying with our parents. When I called my Brother In Law a couple of months back to clear the things. He told me that he does not want to discuss anything and does not want to keep any relationship with my Sister and said the he is giving "Talaak' (He said it loud and clear Three times to me over the phone) to my sister and wants his Kids back.He was very Angry at that time. He has not sent any Written Notice or never has he said it directly to my sister.  Now  he has sent a mediator to our Home and wants my sister and the two Kids Back.

My Questions to you are:-
Is this Marriage Valid now? If not who should the kids stay with ? My Sister is a working Woman and she is taking care of her Kids from their childhood and she wants to keep the children. One of my Neices (9 yrs Old) is staying at her Maternal Home since her birth and does not want to stay with her Father. Kindly Advice in context of Hadith and Quraan. Jazakum-ul-Allah

Answer :

In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
1. If he (the husband) said the words of Talaaq thrice, the marriage is no longer valid.
2. Regarding the custody of the children, the mother has right of custody of her male children until they reach the age of seven, and the right of custody over her female children until the time their periods commence or they reach the age of adult desire, whichever of the two comes first. After these two respective times, the right of custody belongs to the father. (Hindiyyah vol.11 pg. 327, Badaai’ vol.8 pg.239)
 
الفتاوى الهندية  - (ج 11 / ص 327)
وَالْأُمُّ وَالْجَدَّةُ أَحَقُّ بِالْغُلَامِ حَتَّى يَسْتَغْنِيَ وَقُدِّرَ بِسَبْعِ سِنِينَ وَقَالَ الْقُدُورِيُّ حَتَّى يَأْكُلَ وَحْدَهُ وَيَشْرَبَ وَحْدَهُ وَيَسْتَنْجِيَ وَحْدَهُ وَقَدَّرَهُ أَبُو بَكْرٍ الرَّازِيّ بِتِسْعِ سِنِينَ وَالْفَتْوَى عَلَى الْأَوَّلِ وَالْأُمُّ وَالْجَدَّةُ أَحَقُّ بِالْجَارِيَةِ حَتَّى تَحِيضَ وَفِي نَوَادِرِ هِشَامٍ عَنْ مُحَمَّدٍ رَحِمَهُ اللَّهُ تَعَالَى إذَا بَلَغَتْ حَدَّ الشَّهْوَةِ فَالْأَبُ أَحَقُّ وَهَذَا صَحِيحٌ هَكَذَا فِي التَّبْيِينِ .
بدائع الصنائع في ترتيب الشرائع  - (ج 8 / ص 239)
وَأَمَّا الْجَارِيَةُ فَهِيَ أَحَقُّ بِهَا حَتَّى تَحِيضَ كَذَا ذُكِرَ فِي ظَاهِرِ الرِّوَايَةِ وَحَكَى هِشَامٌ عَنْ مُحَمَّدٍ حَتَّى تَبْلُغَ أَوْ تَشْتَهِيَ .
And Allah knows best
Wassalam
Mufti Moosa Salie
Checked and Approved by:
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah