Wife wants divorce from husband who returned to US
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

Praise be to Allah, the Lord of the World; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions.

There is no harm in agreeing with the proposal of Khul'a if there is no harmony between the spouses. Allah Says (interpretation of meaning): {… Then if you fear that they would not be able to keep the limits ordained by Allâh, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul' (divorce). …} [2: 229].
The Prophet (Sallallahu Alaihi wa Sallam) said to the wife of Thabit bin Qais , "Will you return his garden?" She said, "Yes", then the Prophet (Sallallahu Alaihi wa Sallam) ordered Thabit to accept the garden and divorce her." [Reported by Imam 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 marry. The Prophet (Sallallahu Alaihi wa Sallam) said: "You have more right over him (the son) then his father as long as you have not got married" [ Abu Dawood ].
The Muslim scholars differ in the order of the blood relatives who have the right of taking care after the mother.
Generally, it is agreed that female relatives are preferred over male relatives since they are more compassionate than males.
Majority of Muslim scholars are of the opinion that maternal grandmother is the most deserving person after mother to take care of the child. However, we mention in the following the order of relatives who have the right to take care of a child according to each school of thought.
1) al-Ahnaf: The mother, then the maternal grandmother, then father, then the full sister, then the sister from the mother side, then the sister from the father side, then maternal aunts then paternal aunts. If there is no female who deserves to take the custody of the child and male relatives disagree in this matter, in this case they are preferred on the basis of their order in inheritance. So, the father comes first then, paternal grandfather and then brother, etc.
2) al-Malikiyyah 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 aunt of the mother then the grandmother that means 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) al-Shaf'iyah believe that after mother if there are only females then the sequence of the blood relatives who deserve to take care is as following: the mothers of the mother (i.e. her mother, grandmother, their mothers and grand mothers 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 mother of paternal grandfather then the mother of the father of the grandfather then sisters, then the maternal aunts. The mentioned sequence is according to new opinion of Imam Shafi'e 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 paternal aunts. Also every male who takes a share in inheritance is liable to take care of the child according to his grade in taking inheritance. Therefore, the father comes first then grandfather then full brother and so on.
If there are male and female relatives, 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 rights 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., 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 than the female relative is preferred over the male relative.
4) A Hanabilah: The sequence of the relatives who are liable to take the care of a child after his mother is the mothers of the mother based on their closeness in relation, than the father, than the grandmothers, then the grandfather, than mother of the grandfather than the sister then the maternal aunt, then the paternal aunt then daughters of his brothers and daughters of his sisters; the full sister comes first then the sister from mother side and then the sister from the father side. Then comes the turn of other blood relatives based on their closeness in relationship.
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 comes to an end she returns to her father's custody.
The jurists differed in this issue as following:
A) al-Ahnaf believe 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. While al-Malikiyah believes that it ends when she gets married and lives with her husband. al-Shafi'e scholars are of the opinion that the guardianship continues till the age of discretion whether he is a boy or girl. After this age, that is seven years, he/she are allowed to choose the father or mother or the one who will replace the mother.
Hanabilah are 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 in his custody.
Probably Hanabilah's opinion is the preponderant one except if he is a dissolute person and known for his dissoluteness, such as the one who is alcoholic, practices stealing, Zina or other Haram acts. A dissolute person is not trustworthy, so a dissolute person is not worthy to be a guardian of a child.
There are other details and conditions for the one who takes care of a child; the books of Fiqh deal this subject thoroughly. 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.
Allah knows best.

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