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Fatwa CenterA dissolute mother has no right to child custody
Question
my nephew (muslim) "sharia marriage" a hindu who reverted to islam and prayed and fasted. A year ago she took her mother to india for cancer treatment. There (being alone) she smoked, drank went dicos and had affairs with men and visited mujaras. My nephew left her (now one year). They have a son, who is shared one week each. If we go to law court (as children in my country are placed in child law) we might loose the case/child. What to do ??
Answer
All perfect praise be to Allaah, the Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
If the situation is as you have mentioned, then this woman has done many evil matters and she has been negligent about the right of her Lord and that of her husband and she has committed a great major sin. However, it is known that the Islamic Sharee’ah has given the husband the right to be the protector of his wife; Allaah Says (what means): {Men are in charge of women by [right of] what Allaah has given one over the other and what they spend [for maintenance] from their wealth.}[Quran 4:34]
Being in charge of the wife requires that the husband fulfills his responsibility towards her and endeavors to protect her as he is responsible for her. Ibn ‘Umar 
narrated that the Prophet 
said: “Each one of you is a guardian and is responsible for the people under his guardianship, …..and a man is a guardian in his house and is responsible for the people under his guardianship….” [Al-Bukhari and Muslim]
What this woman did like having illegitimate relationships with non-Mahram men is enough evidence of her disobedience and recalcitrance, and the treatment of a recalcitrant wife is mentioned in the Sharee’ah and this is clarified in Fatwa 85402.
As regards her husband deserting her for one year, then this is something contrary to the Sharee’ah, wisdom and sound reasoning, because by deserting her, she may persist in her sin and disobedience and follow her desires without any one to watch her or to hold her accountable for her sins.
Therefore, your nephew has to be firm and do what the Sharee’ah advised the husband to do, then if his wife becomes righteous, this is what is required, otherwise he should divorce her. In case he divorces her, she has no right to take custody of her child due to her dissoluteness as clarified in Fatwa 90461.
To evade the law that you mentioned in the question, that wife should be gradually lured, if possible, to a Muslim country and then the matter should be taken to an Islamic judge there who would prevent her from taking custody of the child.
Allaah Knows best.
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