Children are focus of gravity in Islamic Family tradition and law. When spouse are together, upbringing their child(ren) is paramount joint responsibility. Not only physical care and health, but emotional, educational, and religious welfare and well being are mutual responsibility. When spouses separate by divorce or annulment, these welfare responsibilities get also split according to best abilities of each parent. While fathers are vested with financial burden and legal guardianship roles, mothers are given role of physical carer and emotive guardian of child(ren).
Inherently, Islamic system balances between multitude levels of child(ren)’s need. In recognition of an infant’s need for female care, all the juristic schools give first preference to a mother’s claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian. After divorce during the period of the mother’s custody, she is generally entitled to receive custody wages from the father to help her maintain the child. Islamic Jurisprudential inferences Islamic law on custody of children after divorce is based on several hadith relating to how the Prophet sallalahu Alaihe wasallam dealt with cases brought before him.
One of the key relevant hadith is the following:
According to Amr Ibn Shu’aib, a woman came to the Prophet* and said: ‘Truly my belly served as a container for my son here, and my breast served as a skin-bag for him (to drink out of) and my bosom served as a refuge for him; and now his father has divorced me, and he (also) desires to take him away from me.’ The Prophet sallalahu Alaihe wasallam said: ‘You have a better right to have him, as long as you do not marry again.
Hadith: Ibn Majah The mother is recognized as generally the fittest person to take care of the children, because of the instinctive love and tenderness she feels for them and her closer contact with them throughout pregnancy, nursing, and childhood. However, if the mother marries again she would generally forfeit her right to custody. However, the period of female custody ends once the child reaches a certain age of custodial transfer.
The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody.
The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian.
The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries.
Under the Hanafi School, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother’s custody of her daughter ends. Most maintain that the mother’s custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mother’s custody to last until the girl reaches the age of womanhood.
Conditions of custody Whoever has custody of a child has to abide by conditions concerning residence and Islamic upbringing, to ensure that the child’s welfare is properly cared for. The court may, if necessary, enforce these conditions or direct that the child be given to the next eligible custodian. The father should have access to his children, and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother or one of her relations. Duration of custody and Transfers The duration of custody varies between the Four Schools of Islamic Jurisprudence as detailed earlier. There are different criterion for transfer of custody to next eligible candidate as per table below:
Family courts in the UK and West in general are broadly in conformation with Islamic Law of custody, especially Maliki School. Since current social priorities are child(ren) centered in most aspects so is Islamic Sharia. Other perspectives reported earlier reflect the social trend of the time.For Mufti’s and Islamic Sharia courts choosing from Maliki perspective is not strange especially if it reflects current social policy trends. Islamic Sharia councils have little control over custodial orders. But they have a balancing act to perform when matters are in Sharia courts.
Currently Family courts are overlooking father’s rights and input to child(ren) development. Recent high profile public protests reflect that imbalance in the courts orders. There is extensive lobbying and cry to give fathers significant contacts and say in child(ren) development. All major decisions affecting the life of child(ren) should be taken in consultation with both mother and father even after separation/divorce. General Islamic Sharia principles have major role to play in addressing that balance
Citations from Islamic Law Books on the issue of Custody for Children after divorce:
[In case of separation, the care of the infant children belongs to the wife-.
If a separation take place between a husband and wife who are possessed of an infant child, the right of nursing and keeping it rests with the mother, because it is recorded that a woman once applied to the Prophet; saying
“O Prophet of God ! This is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care;”
to which the Prophet replied,
” thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger;”
- moreover, a mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child; and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying “the spittle of the mother is better for thy child than honey, O Omar!” which was said at a time when separation had taken place between Omar and his wife, the mother of Assim, the latter being than an infant at the breast, and Omar and Omar desirous of taking him from the mother ; and these words were spoken in the presence of may of the companions, none of whom contradicted him :-but the Nifka or subsistence of the child is incumbent upon the father, as shall be hereafter explained. It is to be observed however, that if the mother refuse to keep the child, there is no constraint upon her, as a variety of causes may operate to render her incapable of the charge. AL-HEDAYA Vol. I (Hanafi Manual) [Translated by Charls Hamilton, Published in London 1760)
“When a man who takes away his child from his mother, and then divorces her, is obliged to return the child to her. A man having married a woman at Busra, where she bears him a child, takes the child with him to Kufa, and there divorces the mother; whereupon she brings a suit against him for the child, contending that he must bring it back to her. If he took away the child by her own desire, he is not obliged to bring it back, and the woman should be told to go there and fetch it. But if the child was taken there without the mother’s direction, he must bring it back to her. A man goes out from Busra to Kufa taking his wife and child with him, and then sends her back to Busra and divorces her. In such circumstances it is incumbent on him to send the child back to her, and he may be compelled to do so.” (Hidayah, vol. I.; Fatawa-i-‘Alamgiri, vol. I.; Durru ‘l-Mukhtar, pg. 846; Jami’u ‘r-Rumuz; Tagore Lectures, 1879; Bailie’s Digest, p. 430.)
AL-RISALA (Maliki Manual) 33.09 NURSING (RADA’) AND CUSTODY (HADANA) OF CHILDREN
A woman in wedlock shall suckle her own baby, except where women of her status do not suckle their babies. A divorced woman shall suckle her child at the child’s father’s expense. And she can take the reward for such suckling if she likes.
The custody of children is the responsibility of the mother after divorce. This condition shall remain in force until a boy becomes sexually mature, or until a girl is married away and the marriage consummated. If the mother dies or marries another husband, the right of custody passes into the hands of the grandmother; after her comes the maternal aunt. But if there are more of the mother’s maternal relations the right shall pass into the hands of sisters and paternal aunts. And if there are none of these, the right passes into the hands of agnates.