Question Summary:
I know that according to Shariah laws children belong to their father once a divorce takes place given they have reached puberty. If … Question Detail:
I know that according to Shariah laws children belong to their father once a divorce takes place given they have reached puberty. If the mother remarries while her children have not reached puberty then she looses the custody of her children to their father. I would like to know what sources are used to justify this law. Is this mentioned in Quran or Hadith? I would like to know according which specific religious sources this laws came to be.
Thank you.
Answer :
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In the name of Allāh, Most Gracious, Most Merciful
Assalāmu ῾alaykum wa Rahmatullāhi Wabarakātuh
The mother has the first right to custody of the children according to the Shariah. There is a consensus on this issue, due to her tender love and care for her children.1
Women are recognized in the Shariah for being more loving, more compassionate, and more capable of tarbiyyah (upbringing of children) than men.2
When the mother re-marries another man who is an ajnabi (stranger) and not a mahram (of close relation) to her child, she foregoes the right of custody. However, she does not lose custody to the father. Rather, the grandmother on the mother's side (i.e. mother of the child's mother) becomes next most entitled to custody of the children.3
The source is found in an authentic hadith narrated by numerous Muhadditheen such as Imam Abu Dawud, Imam Al-Baihaqi and Imam Al-Hakim4:
أن امرأة قالت يا رسول الله إن ابني هذا كان بطني له وعاء وثديي له سقاء وحجري له حواء وإن أباه طلقني وأراد أن ينتزعه مني فقال لها رسول الله صلى الله عليه وسلم أنت أحق به ما لم تنكحي
A woman said: O' Messenger of Allah (salallahu alayhi wa sallam), my womb was a vessel to this son of mine, my bosoms, a water-skin for him, and my lap a gathering-place for him, yet his father has divorced me, and wants to take him away from me. The Messenger of Allah (salallahu alayhi wa sallam) said: You have more right to him as long as you do not marry.
The father is entitled to custody of the son at the age of seven and to the daughter when she becomes mature (i.e. reaches the age of puberty).5
And Allāh Ta῾āla Knows Best
Wassalāmu ῾alaykum
Ml. Sohail Bengali
Correspondence Iftā Student, US.
Checked and Approved by:
Mufti Ebrahim Desai
Dārul Iftā, Madrasah In῾āmiyyah
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