Custody of children.
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:
My son discovered that my husband married for the second time in their country without my knowledge and when confronted he said he could not say no to his mother and could not break the tradition of arrange marriage. The second wife knows about me and my son before that marriage happened but she doesn`t know that we are legally married in country. He and his family lied to her. Now he is not staying with us for more than a year because he is afraid from his new wife and his parents. Is the second marriage valid? Could I declare a divorce? Will our 10 year son be in my custody after the divorce?
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Custody of children
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 none 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 4 Surah Nisaa verse 3:
3 If ye fear that ye shall not be able to deal justly with the orphans marry women of your choice two or three or four; but if ye fear that ye shall not be able to deal justly (with them) then only one or (a captive) that your right hands possess. That will be more suitable to prevent you from doing injustice.
Allah has permitted and given the option to the believers who wish to marry more than one wife (upto a maximum of four) to do so provided they treat the wives with equality and justice. If one chooses to exercise the option of marrying and keeping more than one wife and does not treat them equally, the husband will be held severely accountable in the Court of Allah Subhanah on the Day of Judgment.
Sunan of Abu-Dawood Hadith 2128 Narrated by Abu Hurayrah
The Prophet (saws) said: When a man has two wives and he is inclined to one of them, he will come on the Day of resurrection with a side hanging down.
Your Question: Is the second marriage valid?
It is not an obligation in Shariah Law to take the permission or consent of the first wife for a believer to seek to marry another woman, but it would have been only piety and righteousness on the part of the person to have made it absolutely clear to the second wife that he is already married and has a prior wife. If the person chose to practice deceit when seeking to marry again, he will be held severely accountable for his deceit and his dishonesty in the Court of Allah Subahnah.
Provided all the obligatory conditions of an Islamic nikaah were fulfilled (proposal and acceptance, the determination of mehr, the presence of two witnesses, and the consent of the parents/guardians of the bride), the marriage itself will be deemed lawful and valid in the Sight of Shariah Law and of Allah Subhanah.
Your Question: Could I declare a divorce?
If ones husband wishes to exercise his option of taking more than one wife, and the first wife cannot bring herself to accept her husbands decision.she is well within her rights in Islam to initiate a divorce proceedings against her husband and seek her freedom from the marriage.
If ones husband has legally married another woman, what the wife cannot and should never do, if indeed she sincerely believes in Allah and the Last Day, is demand that her husband divorce the other wife.
Sahih Al-Bukhari Hadith 8.598 Narrated by Abu Huraira
Allah's Messenger (saws) said, "No woman should ask for the divorce of her sister (Muslim) so as to take her place, but she should marry the man (without compelling him to divorce his other wife), for she will have nothing but what Allah has Decreed for her."
Your Question: Will our 10 year son be in my custody after the divorce?
In the unfortunate event of a divorce in Islam, Shariah Law states that all children (male or female) will remain in the custody of the mother until they reach the age of understanding and puberty; and it will be responsibility of the father to provide the financial means for their upkeep.
Once the children reach the age of understanding, the father has a right to move the Shariah Court if he wishes to gain custody of the children. The Shariah Court Judge will then ask the children who have attained the age of puberty whom they wish to live with: their mother or their father; and whatever decision is made by the children will be enforced by the Shariah Judge.
The decision of who gains the custody of the children in a divorce neither rests with the mother, nor the father, nor the Shariah Court Judge; but Allah Subhanah has placed this right of decision in the hands of the children as soon as they reach the age of understanding and puberty. The Shariah Court Judge will only enforce the decision of the children, and give the parent who lost the custody fair visitation rights.
In your particular case the boy of ten will remain in your custody until he has reached the age of puberty, and if then the father wishes to get primary custody of the son, he will have to approach a Shariah Court and the Shariah Judge will enforce the decision made by the son regarding whom he wishes to live with, his father or his mother.
The total financial responsibility for the upkeep of the son, absolutely regardless of who holds his custody, will be borne by the father.
Whatever written of Truth and benefit is only due to Allahs Assistance and Guidance, and whatever of error is of me. Allah Alone Knows Best and He is the Only Source of Strength.
Your brother and well wisher in Islam,