..::Child Custody after Divorce…Islamic Law

..posted by Pakistani Law Firm..Get Free Legal Advice

Question: Is it permissible for a Muslim woman who has been divorced and subsequently remarries to file for the custody of her child from her ex-husband, who is also Muslim, in a secular court of law?

Answered by: Sheikh Mûhammad al-Ghâmidî, professor at King Khâlid University… Taking such disputes before a secular court of law is something prohibited in Islam. Allah says: “But no by thy Lord, they can have no (true) faith until they make you judge in all disputes between them and find in their souls no resistance against your decisions but accept them with the fullest conviction.”
The husband and wife should fear Allah and not force each other to take their disputes before the courts which rule by such laws. They should, instead, refer any dispute between them to those who possess Islamic legal knowledge, since the custody of children is something quite clear and well known in Islamic law.
In Islamic Law, the custody of the infant is a woman’s right unless she gets married or until the child reaches seven years of age. A woman said to the Prophet (peace be upon him): “This son of mine – my womb carried him, my breast fed him and my lap was a bed for him. Now his father has divorced me and wants to take him away from me. The Prophet (peace be upon him) said: “You have the priority to take him unless you get remarried.” [Musnad Ahmad, Sunan Abî Dâwûd, and Mustadrak al-Hâkim].
If the woman gets remarried and the father disputes with her over custody, then the right for custody transfers to the woman’s mother unless she is not legally fit to fulfill the duty. If she is not fit, then and only then will custody transfer to the father.
When the male child reaches seven years of age, he gets to choose between staying with his mother or his father. He will go with whomever he wants to.
A woman came to the Prophet (peace be upon him) and said: “My husband wants to take my son away from me.”
The Prophet (peace be upon him) said to the child: “This is your father and this your mother, so take the hand of whom you like.” The boy took the hand of his mother and they went together. [Sunan al-Tirmidhî]
This hadîth shows that when the boy is old enough to make such a decision, he can be given the choice between his two parents, provided that neither of them forbids the other from seeing the boy. However, he will not be given to anyone who cannot protect and safeguard him.
On the other hand, when a female child becomes seven years old, she stays with her father until she gets married. If the father cannot handle the responsibility of the girl or he neglects her, or if he is a man of bad character, then the mother will take charge and have custody of the daughter.
In brief, this mother has no right for custody because she has remarried, on account of the hadîth I have already mentioned. The custody of this child will be transferred to other guardians in the order that I have mentioned.

23 comments on “..::Child Custody after Divorce…Islamic Law

    • generally father can claim after 7 years but its not a hard and fast rule the guardian court will decide the custody matters keeping in view the welfare of the minor. if the welfare so demand the father can take the custody even before the age of 7 years


  1. Sir,
    what should i do my wife want to live in separate home because she said i can not live with your mother my problem is i cannot afford twp separate home and i also not want to leave my mother. but my wife is forcing me and telling me this is my legal Islamic right to get separate home. now my wife left me and staying at her mother home from last 2 Months….
    and demanding me that give me separate home or give me divorce i will not come back to your mother home… i have one 6 month child… what should i do please help me and give best suggestion.


    • its better you try at your level best to make the social environment of your home more comfortable for your wife and convince your wife to live with you along-with your mother


  2. We have a situation here.
    1. A guy divorced his wife by three divorces (on simple thing in anger) at a single sitting after 18years of marriage. It was doubted whether it happened or not. A mufti was contacted, he replied that they can reunite if both of them want to accept ahli hadis fiqa. The lady didn’t agree as she was believing on Hanfi and second she was angry on the divorce by the GUY for no reason. Then a normal nikah was performed by the guy, requesting a friend (HALLAHA) to solve the issue and don’t tell any one as this will be a great shame for him, so no one was informed. The friend and the LADY agreed that the GUY will not force the friend or the LADY to have a divorce. To make every thing legal, not non islamic. They have kids who were definitely suffering. The guy after three days of nikah became angry that why the lady is not coming back and spread a news among the families of the lady and the friend (who was also married before) that (A) friend stole the wife of GUY by deceiving him. (B) Spread the news to the parents of the lady that she left the kids and ran away with a new husband. A social pressure put the new relation at a stack and due to this social pressure the friend divorced the LADY making a base that the LADY is crying for kids. Now the LADY moved in iddah to the GUY home again. The friends of family signed a bond by the guy that the GUY will be kind and just to her. And also convinced the LADY that everything will be ok and you will be happy with your kids. But the guy tortured her by saying that why you were not coming back (there is NO proof of the torture) even on the first night there. The friends of the family got informed they tried to help but the GUY said that i did nothing she is crying for no reason. The friends of the family tried to convince her family but due to the previous cultural pressure her family told her that make NIKAH with the Guy (1st husband) otherwise they will never make a contact to her. After all the forces applied, the LADY denied nikah, because the GUY first divorced her, then spread false news and then tortured her and now forcing her for NIKAH. She kept on denying and told the GUY to remarry and she will just live with the kids as she has no one now in the whole world except the children and Allah. But the GUY said you have no rights in them as most of the kids are more then 9 years. Finally the GUY told her to leave home or marry him. An important point is HERE that the friends of the family tried to protect her and provide her an independent shelter but the GUY posted an email to all the people that they are misguiding my wife and gave them threats (The email can be sent to you)
    She left the home of the GUY and now living here and there as her family left her because of the initial blames put by the guy. NOW SHE WANTS TO GO TO COURT TO FIGHT FOR KIDS. BUT AS USUAL the law is not protecting her. The GUY threatened her also that if the LADY moved to court he will kill himself, leave the job and may kill the kids also. NOW neither the second husband nor the first or the family can support her. So how the law can protect the mother? Whats the punishment for the negligence of the parents of the LADY specially the brothers who always helped the first husband and told the relatives never ever allow her to home. Whats the status of the divorce by the second husband (Social pressure) The guy never paid 1. HAQ MEHER 2. KEPT ALL THE DOWRY 3. ALL purchases made by her even the cloths etc . By which means or she may make a suicide in front of this society. Please help. For Allah’s sake.

    GUY= 1st Husband Well Educated (45 year age)
    Friend= 2nd Husband Well Educated (35 years)
    Lady= Mother of Kids Have simple education (36 years)
    Society=Well educated pathans
    Friends of Family= They are witnessed to everything. Can give witnesses for all this.


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