Islamic Law by Mashood A. Baderin

Author:Mashood A. Baderin [Baderin, Mashood A.]
Language: eng
Format: epub
ISBN: 9780191643552
Publisher: OUP Oxford
Published: 2020-12-09T00:00:00+00:00

Child custody and guardianship

On dissolution of marriage the mother has a superior right to custody (haḍānah) of an infant child, on the presumption that this will serve the best interest of the child, while the father’s duty of guardianship (wilāyah), including provision of maintenance for the child, subsists after divorce. This is deduced from Q2:233—‘Mothers shall suckle their children for two whole years for those who desire to complete the suckling term; and the father of the child shall bear provisions for their feeding and clothing equitably.’ There are also many ahādīth that serve as authority for the different aspects of haḍānah. For example, al-Marghinānī states in his al-hidāyah that ‘If separation occurs between the parties, then the mother has a superior right to the custody of the child, due to the report that a woman said: “O Prophet! This child of mine, for him my belly is like a cradle, my lap like a tent, and my breast like a beaker, but now his father wants to separate him from me”. The Prophet said to her: “You have a superior right to him, as long as you do not marry” … Accordingly there is greater justice in giving the child to the mother.’

It is also reported in another hadīth that a woman came to the Prophet and said: ‘My husband wants to take away my son, although he [my son] gives me comfort and brings me drinking water from the well.’ Her husband contested her claim over the child. The Prophet gave the child an option saying, ‘O child, this is your father and this is your mother, make a choice of whomever you want between the two of them.’ The son took the hand of the mother and she went away with him (Abū Dāwud).

There is consensus amongst Islamic jurists that the mother has the primary and superior right to the custody of her child, which consists of the duty to physically take care of the child. And the father has the right and duty of guardianship which consists of the right to monitor the child and duty to provide for his maintenance. However, there are differences of juristic opinion regarding the age of the child at which the right to physical custody may revert to the father. Although the mother is listed as having the primary right of custody of the child, the jurists acknowledge, as stated by al-Marghinānī in al-hidāyah, that she is not to be forced to undertake custody where it is obvious that she is unable to care for or bring up the child. In such cases, the classical jurisprudential manuals provide rules on the hierarchy of persons entitled to custody in the absence of the mother, most of which prioritize the child’s maternal relatives.

Protecting the best interest of the child is the guiding principle on the rules of child custody in Islamic law. Thus, Ibn Qudāmah stated in al-mughnī that the principles of custody have been introduced for the welfare of children. Thus,

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