Wife Wants Divorce as Husband Returned To US and Issue of Fostering the Child
Fatwa No: 84618

  • Fatwa Date:31-7-2002 - Jumaadaa Al-Oula 22, 1423
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Question

My wife wants a Khul'a divorce not due to any harm I have done to her but she says we are not compatible. She is 5 months pregnant. I was living in the UAE and had to return home to the US to find work to take care of the two of us until she has the baby. I asked her to come to New York until the baby is born but she refused. She said she does not want to be married any more. She has filed papers with the court in Ajman, UAE, saying she wants a divorce based on abandonment. I have not abandoned her. She is trying to force me to give her a divorce before the baby is born. 1. Do I have to give her a Khul'a now? 2. Once the baby is born and we are divorced, if she remarries do I have a right to take my child after she has finished nursing. 3. Do I have the right to take my child for the summer if she has custody of the child?

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

There is no harm in agreeing with the proposal of Khul' if there is no harmony between the spouses. Allah Says (what means): {But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself.}[Quran 2: 229]

The Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said to the wife of Thaabit ibn Qays, “Will you return his garden?” She said, “Yes”; then the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) ordered Thaabit to accept the garden and divorce her.” [Al-Bukhari]

As for taking care of the child after divorce, the mother is more deserving than anyone else as long as she does not remarry. The Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said: “You have more right over him (the child) than his father as long as you do not remarry.” [Abu Daawood]

The Muslim scholars differed about the sequence order of the blood relatives who have the right of fostering a child after the mother.

Generally, it is agreed that female relatives are preferred over male relatives since they are more compassionate than males. The majority of Muslim scholars are of the opinion that the maternal grandmother is the most deserving person after the mother to take care of the child. However, we will mention the order of relatives who have the right to take care of the child according to each school of jurisprudence as follows:

1) The Hanafi School of jurisprudence: The mother, then the maternal grandmother, then the father, then the full sister, then the sister from the mother’s side, then the sister from the father’s side, then the maternal aunts, then the paternal aunts. If there is no female who deserves to take the custody of the child and male relatives disagree in this matter; then, in this case, they are preferred on the basis of their order in the inheritance. So, the father comes first, then the paternal grandfather, and then the brother, etc.

2) The Maaliki School of jurisprudence: They are of the opinion that the most deserving person after the mother is the maternal grandmother or the mother of the maternal grandmother and so on, then the maternal aunt, then the maternal aunt of the mother, then the paternal aunt of the mother, then the paternal grandmother (i.e. the father's mother), and his maternal and paternal grandmothers, then the father, then the sister, then the paternal aunt, then the maternal aunt, then the daughter of the brother of the child who is being nursed, then the daughter of his sister, and then the caretaker, etc.

3) The Shaafi’i School of jurisprudence: They believe that after the mother if there are only females, then the sequence of the blood relatives who deserve to take care of the child is as follows: the mothers of the mother (i.e. her mother, grandmother, their mothers and grandmothers and so on) who have the right in inheritance; taking into consideration the nearness of those mothers, then the paternal grandmother, then her mother, her maternal grandmother and so on. Then the mother of paternal grandfather, then the mother of the father of the grandfather, then the sisters, then the maternal aunts. The mentioned sequence is according to the new opinion of Imam ash-Shaafi'i, otherwise his old opinion is that the sisters and maternal aunts are given priority over the mothers of the father and grandfather, then the daughters of the sisters and brothers, and then the paternal aunts. Also every male who takes a share in the inheritance is liable to take care of the child according to his share in the inheritance. Therefore, the father comes first, then the grandfather, then the full-brother and so on.

If there are male and female relatives; then, in this case, the mother is given priority over others, then the maternal grandmother or her mother and so on. Then comes the father; it is also said the maternal aunt and the full sister or half sister have more right than the father.

The father and mother or their fathers and mothers are given priority over sisters, aunts, etc. If there are no father, grandfather or mother and grandmother etc.; then, in this case, the other relatives are given priority according to their close ties. If there are males and females in the same grade like a brother and sister, then the female relative is preferred over the male relative.

4) The Hanbali School of jurisprudence: The sequence of the relatives who are liable to take care of a child after his mother is the mothers of the mother based on their closeness in relation, then the father, then the grandmothers, then the grandfather, then the mother of the grandfather, then the sister, then the maternal aunt, then the paternal aunt, then the daughters of his brothers and daughters of his sisters; the full-sister comes first, then the sister from the mother’s side, and then the sister from the father’s side.

Then, comes the turn of other blood relatives based on their closeness in relationship (to the child).

This is the brief illustration of the opinion given by the Jurists in the matter of nursing and guardianship.

Know that the expenses of nursing are charged to the account of the child who is being nursed. If he does not have money, then the person who is obliged to spend on him is charged for his expenses.

If other than a father takes care of a girl, when his guardianship over her comes to an end, she returns to her father's custody.

The jurists differed in this issue as follows:

A) The Hanafi School is of the view that the guardianship of a girl ends when she reaches the age of puberty; according to them, it is nine years and then she returns to her father's custody. However, the Maaliki School is of the view that it ends when she gets married and lives with her husband. The Shaafi’i scholars are of the opinion that the guardianship continues till the age of distinction whether he is a boy or girl. After this age, that is seven years, he/she is allowed to choose the father or mother, or the one who will replace the mother.

B) The Hanbali School is of the opinion that a girl after seven years is forced to live with her father till she marries and lives with her husband. They say that the reason of the guardianship is providing safety; so a father can do this job more perfectly than others.

Also, she is proposed for marriage through a father and he is more suitable than others to keep her away from any kind of harm or cheating. Thus, it is compulsory for her to be given to his custody.

Probably, the opinion of the Hanbali School is the preponderant one except if the father is a dissolute person and known for his dissoluteness, such as the one who is alcoholic, steals, commits Zina (fornication or adultery) or other unlawful acts. A dissolute person is not trustworthy, so he is not worthy of being a guardian for a child.

There are other details and conditions for the one who takes care of a child; the books of Fiqh deal with this subject thoroughly.
Finally, it should be mentioned that if there is any disagreement between a father and others in the matter of guardianship, then they should solve their problem in the light of Islamic teachings.

For more benefit on the sequence of relatives who have more right in the fostering of the children after their mother, please refer to Fatwa 90467.

Allah Knows best.

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