Question Summary:
According to the X and the family, X has given the divorces in 2 sittings thus only constitutes 2 divorces regardless of number of times the word divorce has said. The family are in denial that all 3 divorces has happened. .. and Child Custody

Question Detail:

According to the X and the family, X has given the divorces in 2 sittings thus only constitutes 2 divorces regardless of number of times the word divorce has said.  The family are in denial that all 3 divorces has happened.

Can you kindly advise on the following.

Also there is an issue of child custody. Due to X's violent behavior that also resulted in the above divorce, Y does not want her child to be given. X also is not capable of supporting the child and everyone knows in their family. Despite of this all the efforts to resolve the issue has been in waste since the X's father does not allow X to come and talk and the elders can't agree on anything. The daughter is currently with Y.

1. Since X has beaten his mother, has violent behavior (beaten Y 8-9 times during the 2 year marriage),   and cannot support the daughter, who should get the custody of the child (now and in future). On the day X gave 2 divorces, Y was severely beaten and X put her head in the commode. Y shouted and the other family members came to rescue her. X then gave 2 divorces.

2. Based on the above scenario, X's father sometimes says to give the custody of the child at 2 years and sometimes says at 9 years. The X's other brother's and their wives have said that they can take care of the child for one month at the time. X's mother (grand mother) has said in front of everyone that she can't take care of the child. X's father insists that they will not finalize the divorce unless the custody of the child will be given to them.

3. What are the options does Y have. What will happen if she marries? who will get the custody because based on the past behaviour and the X's family circumstances and structure, the child cannot be safe or taken care well if the custody will be given to the father.

I know it is a lot of things to ask, but I will appreciate if you can response in detail.

Answer :

In the name of Allah, Most Gracious, Most Merciful
Assalaamu `alaykum waRahmatullahi Wabarakatoh
The general principal of the bounties of Jannah is explained in the following verse
“And for you in Jannah will be whatever your soul desires.”
If a person wished to fulfill his base desires in Jannat, he will be granted that. The actual form and details of a dweller in Jannah fulfilling his base desires is known by Allah. 
And Allah knows best
Wassalam
Mufti Ebrahim Desai
Darul Iftaa, Madrassah In'aamiyyah
Child Custody
As an introduction, we should understand that our children are a trust of Allah upon us. He has ordered us to fulfil the rights of this trust. Primarily, children have two rights: to receive love and to receive proper upbringing.

Both these rights are equally important. Love to the child enhances compassion and proper upbringing enhances righteousness. While both the parents have to make an effort to enhance both these qualities in the child, generally the mother fulfills the greater part of showing love thus enhancing compassion and the father fulfils the greater part of proper upbringing thus enhancing righteousness. The absence of any one of these two qualities (compassion or righteousness) is detrimental to the child. A person without compassion is not loved and a person who is not upright is not respected by society.

Only with a joint effort by both parents fulfilling their respective roles can the children be balanced and fulfil a meaningful role in society. Generally, a single parent is unable to adequately fulfil both the rights of the child.

The death of one of the parents is beyond our control, and cannot be avoided. However, divorce is within our control and should be avoided as far as possible, especially if there are children involved. Although Shariáh has addressed the rights of custody and visitation, when there is a dispute and no understanding between the parties, children still suffer the lifelong consequences of their parents’ disputes and subsequent divorce. Therefore, a healthy child is he who has been jointly reared by both parents.

However, if the parents are divorced, the mother has the rights of custody of a minor. In the case of a male, till the age of seven and in the case of a female till the age of nine (Shaami vol. 3: HM Saeed). The mother will receive the rights of custody with 5 conditions: She is (a) a free person; (b) adult; (c) sane; (d) trustworthy; (e) capable (Ibid pg. 556). Hence, the mother’s right of custody is forfeited if: 1) she remarries a Ghayr Mahram (stranger according to Shariáh) of the child; 2) She demands remuneration for the upbringing of the child if there is another woman to rear the child without remuneration; 3) She does not attend to the child due to her leaving the house very often; 4) Openly indulges in sin and there is fear of the child being affected.

If the mother does not or is unable to exercise her right, then the following persons have the right of custody in sequence: maternal grandmother; paternal grandmother; real sister; maternal sister; paternal sister, etc.

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, paternal grandfather, real brother, paternal brother, maternal brother, etc.

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 un-Islamic and also 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. (Ibid 604).

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 (Ibid pg. 561)

According to the Hanafi Madhab, the child does not have an option to stay with whomsoever he wishes. After maturity or puberty only does the child have a choice (Ibid pg. 567).

Mufti Ebrahim Desai