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I was in doubt about getting divorce while my wife was 4 months pregnant.

Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

 

One of our brothers/sisters has asked this question:

Question No. 9876 : Dear respected brother Burhan,

 

Thanking you first for replying my question no.3006.

 

Now again I need your help related to the above question number (Plz refer once).

 

At that time I was in doubt about getting divorce while my wife was 4 months pregnant.

 

As per your advice I tried my best to show her path of Islam to let her know the truth of Al-Islam. But her response was total ignoring and I fail to make her mind as she was having IQ problem too.

 

Till now she has delivered the baby girl whom I love very much. The day she delivered the baby she avoided coming to my home from hospital. I was shocked to see her parents wanting her and baby to take their home as per general rule. I explained my wife and their parents the matters in this case is not possible as per Islam law and took away baby and wife to my home purposely without hearing their any request and threatening talks.

 

Since then my wife is always in a search of points to fight with me and my parents to have reason to go back to her parent home. Some how I managed to keep her quiet till completing 40 days. But in between she got one more reason to go back home on the occasion of Hindu festival- Raksha Bandhan. When I told her this is not possible, she called her mother & sister to my home to take her back. On not giving permission to her mother they called local police to take my wife and baby. They gave their responsibility note in the local police station and took away from me.

 

All my family members and relatives are very much depressed about this behavior which happens with us and seeking your help to get out of this problem. Now I am finally decided to get divorce from her and took my baby back. I want my baby girl back because she born as Muslim and name given to her is Muslim (Ayesha). Even the birth certificate, the Local Polio Dose and other Doctor’s Patient Card is by the name of Ayesha.

 

Now please please help me soon to take my baby back from those non-muslim guardians.

 

Tell me total procedures for getting divorce and taking my baby back in this case. In which court in India (Bombay) should I apply as per Islam law, though our marriage is as per Islam law? I took her affidavit for the conversion from Buddhist to Muslim religion and not getting back, declaration for the marriage, Declaration of her again from Kazi for conversion and Marriage certificate.

 

 

 

If court does not permit me to take my baby back then what about the religion my baby should have and my visitation rights. Also let me know the period for the baby she has to be with her mother and the amount percentage of my earnings to be paid for their upkeep.

 

If she ask the alumni while getting divorced, then tell me what is the amount of my property if have to be given to her as per Islamic rule.

 

I, my family, relatives and friends are seeking your help at your earliest.

 

Thanking you,

Your brother,  

 

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

 

Answer:

 

Custody after divorce non-muslim

 

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person, no grave, no prophet, no imam, no dai, nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

 

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 231-233:

231 When ye divorce women and they fulfil the term of their (`Iddat) either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them or to take undue advantage; if anyone does that He wrongs his own soul. Do not treat Allah's Signs as a jest but solemnly rehearse Allah's favors on you and the fact that He sent down to you the Book and Wisdom for your instruction. And fear Allah and know that Allah is well acquainted with all things.

232 When ye divorce women and they fulfil the term of their (`Iddat) do not prevent them from marrying their (former) husbands if they mutually agree on equitable terms. This instruction is for all amongst you who believe in Allah and the Last Day. That is (the course making for) most virtue and purity amongst you and Allah knows and ye know not.

233 The mothers shall give suck to their offspring for two whole years if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning by mutual consent and after due consultation there is no blame on them. If ye decide on a foster-mother for your offspring there is no blame on you provided ye pay (the mother) what ye offered on equitable terms. But fear Allah and know that Allah sees well what ye do.

 

Your Question: Now I am finally decided to get divorce from her

Beloved brother, since you made up your mind to divorce your wife, and before we get into the legalities of divorce, at the outset we would like to guide you to the three terms of Divine Guidance so emphasized by Allah and His Messenger (saws) in the process leading to and after divorce:

  1. ‘Taqwa’: ie. fear Allah in whatever step you take, in whatever you say, whatever you do…for Allah is our witness, every deed will be brought to account on that Inevitable Day of Judgment in the Majestic Presence of the All-Mighty Lord.
  2. ‘Adl’; ie. Justice! Be absolutely fair and just in your dealings with your wife, regardless of who gains or loses more in the unfortunate break-up of the sacred relationship of marriage. Even if the ‘sword of justice’ falls on you, be fair and just and do what is akin to justice.
  3. ‘Ahsaan’; ie. Generosity. Islam guides that just as two people chose to unite in love and peace; if for any reason they have to part, they should do so in peace and generosity! ‘Ahsaan’ is to do deeds over and above the call of duty and responsibility…to be fairer than fair, to be juster than just, to be better than best, to give more than what is due...that would be ‘Ahsaan’ in the Sight of Allah Subhanah and The Lord Merciful has declared time and again in His Glorious Quran that He loves the ‘Muhseneen’ (those who practice the qualities of ‘ahsaan’).

 

Your Question: Now I am finally decided to get divorce from her and took my baby back. I want my baby girl back because she born as Muslim and name given to her is Muslim (Ayesha). Even the birth certificate, the Local Polio Dose and other Doctor’s Patient Card is by the name of Ayesha.

Now please please help me soon to take my baby back from those non-muslim guardians.

Beloved Brother, all I can do is guide you to the Shariah Law declared by Allah and His Messenger (saws) regarding divorce in Islam. If you reside in a non-muslim country, then unfortunately the law of the land would be implemented; thus it would be best to take the advice of a qualified lawyer who is well-acquainted with the law of the land. In any case brother, you as a believer are duty bound to and must implement the Shariah Law upon yourself, even if there is a loop-hole in the law of the land whereby it would benefit you! If the law of the land gives or allows you something which is not permitted to you by Allah and His Messenger (saws), you must fear Allah and forego that allowance; but if the law of the land takes away something which would rightfully belong to you by Shariah Law, you would be well within your rights to take your case to the highest legal levels; and even if then they withhold what should be rightfully yours, then be patient and expect your reward from Allah.

 

Your Question: I want my baby girl back because she born as Muslim

Shariah Law dictates in the case of custody of children in divorce that under normal circumstances the mother will have primary custody, and the child will stay with the mother until the child reaches the age of understanding or puberty, with visitation rights given the father by the Court. Then if the father of the child wishes to assume primary custody of his child, the case will be brought before a Shariah Judge who will ask the child who he/she prefers to stay with: the mother or the father? Whatever the child decides, the Shariah Judge is duty bound to implement the decision of the child and give visitation rights to the spouse who does not hold primary custody.

 

If it can be proven in a Shariah Court that the mother of the child has left the fold of Islam, the believing father will get immediate primary custody of the child regardless of the child’s age.

Thus brother, in your particular case, since the mother of the child has indeed left the fold of Islam, you are well within your rights to purse your right in Court to have primary custody of your daughter.

 

Your Question: Tell me total procedures for getting divorce and taking my baby back in this case. In which court in India (Bombay) should I apply as per Islam law, though our marriage is as per Islam law? I took her affidavit for the conversion from Buddhist to Muslim religion and not getting back, declaration for the marriage, Declaration of her again from Kazi for conversion and Marriage certificate.

As far as a Shariah divorce is concerned, all you have to do is declare verbally to your wife that you intend to divorce her, and declare once ‘I divorce you’ when she is not in the state of her menses. If the ‘iddah’ or waiting period of her three menstruation periods elapse and you do not conjugate with the wife or take her back, it would be considered a legal divorce in the Sight of Shariah and Allah Subhanah.

 

Regarding which Court in Bombay you should apply for the divorce to become legal in the land according to Indian law and for the primary custody of the child, beloved brother, it would be best to seek proper legal advice from a good divorce lawyer who is well acquainted with the law of the land. We obviously are not qualified to give an opinion regarding the legalities of the current laws prevalent in India.

 

Your Question: If court does not permit me to take my baby back then what about the religion my baby should have and my visitation rights.

In the unfortunate circumstance, if the Indian Law gives primary custody of the child to the mother, regret you would have to accept that although the child will be always be considered a muslim in the sight of Shariah because of her birth from a believing father, even though she will grow up in a disbelieving environment. Whatever little influence you might have will depend on what you are able to salvage during your visitation rights if any, provided by the law of the land.

 

Your Question: Also let me know the period for the baby she has to be with her mother and the amount percentage of my earnings to be paid for their upkeep.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 232-233:

232 When ye divorce women and they fulfil the term of their (`Iddat) do not prevent them from marrying their (former) husbands if they mutually agree on equitable terms. This instruction is for all amongst you who believe in Allah and the Last Day. That is (the course making for) most virtue and purity amongst you and Allah knows and ye know not.

233 The mothers shall give suck to their offspring for two whole years if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning by mutual consent and after due consultation there is no blame on them. If ye decide on a foster-mother for your offspring there is no blame on you provided ye pay (the mother) what ye offered on equitable terms. But fear Allah and know that Allah sees well what ye do.

 

Islam has prescribed a period of two years for the weaning of the child, and has commanded that the father shall bear the full cost for the upkeep of the child on ‘equitable terms’. The mother has a right to demand a fair compensation for weaning the child during this period and the father must compensate the mother on ‘equitable terms’ during this period of weaning of two years. The phrase used by Allah Subhanah is ‘equitable terms’, which basically means that the father must provide for the same standard of living of the child as he himself is living in. The believers are commanded that neither the mother be treated unfairly on account of her child, nor should the father be treated unfairly on account of his child.

 

Thus the compensation during this period of weaning is not calculated as a percentage of one’s earnings, but rather on the standard of one’s living or ‘equitable terms’. Besides, Shariah Law dictates that in the case of divorce, it is the father who will be responsible and bear the complete financial cost of the upbringing of the child until the child reaches the age of adulthood, regardless of who has primary custody of the child.

 

Your Question: If she ask the alumni while getting divorced, then tell me what is the amount of my property if have to be given to her as per Islamic rule.

Shariah Law dictates that other than the compensation the mother has a right to demand for the weaning period of the child for two years, there is no other form of compensation or ‘alimony’ the wife would receive in the case of divorce. But if the husband, of his own free will, wishes to do ‘ahsaan’ and show generosity and gives something to his divorced wife, he is well within his rights to do so.

 

Shariah Law dictates that after one has divorced his wife, under no circumstances can the husband demand the wife to give back anything he had given to her prior to the divorce; even if it were mountains of treasures!

 

Allah Says in the Holy Quran Chapter 4 Surah Nisaa verses 20-21:

20 But if ye decide to take one wife in place of (or divorce) another even if ye had given the latter a whole treasure for dower, take not the least bit of it back: would ye take it by slander and a manifest wrong?

21 And how could ye take it when ye have gone in unto each other and they have taken from you a solemn covenant?

 

Beloved brother, because of the complication of your wife leaving the fold of Islam and your abiding in a land which does not follow Shariah Law, we again reiterate that it would be best to take a legal opinion from a qualified divorce-lawyer who is acquainted with the laws of the land.

 

As your brothers and well-wishers in Islam, we remind you to remember the three elements of Divine Guidance during and after the proceedings in this unfortunate case of divorce:

  1. Fear Allah in whatever you do,
  2. Be just and fair at all times during and after the proceedings of divorce
  3. Practice ‘ahsaan’ or generosity as much as you can.

 

Also brother, we urge you to remember that regardless of the law of the land, you as a believer in Allah and the Last Day are duty bound to implement the Shariah Laws upon yourself. Even if the unjust man-made laws of the land allow you some benefit which does not rightfully belong to you according to Shariah Law, you are not to take advantage of such loop-holes.

 

And finally brother, we implore you that just as you married the woman of your choice in peace and love, and due to unfortunate circumstances and realities you now wish to separate from that woman, make sure the separation is also in peace. Regardless of how unjustly or unfairly your wife or her family treat you, you remain steadfast on the Righteous Path of Truth and do and say only what is Fair, Just, and Pleasing to Allah Subhanah, The Lord of the Heavens and the Earth and everything that exists in between.

 

If one trusts, obeys, and follows the guidance and commands of Allah and His Messenger (saws), one can be assured of never ever being misled; but if one believes, obeys and follows any other guidance, other than that of Allah and His Messenger (saws), one can be assured of being led astray.

 

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

 

Your brother and well wisher in Islam,

 

 

Burhan

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