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Man divorce custody

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:

Dear Brother,

 

Assalam Alaikum.

 

I am married and having one child. Now I am separated from my wife past one & half year as she insists following the code of Shia religion. Though prior to marriage she did convert willingly but later backed off. Now, my only child is under her custody and even after repeated pursuasion she is not willing to come back nor ready to give back my child. Let us call this Girl as X1.

 

In the meanwhile, my parents fixed my marriage with some other girl (let us call this Girl as X2) . But due to shyness or denial of proposal, we admitted that I have already taken Divorce from my first wife (X1), though I havent.

 

a) Should I inform them (X2) that I havent taken divorce.

 

b) If I apply for divorce with X1 , I will not be allowed to see my child of whom I get a custody of 02 days every fortnight.

 

c) If I inform to the new girl (X2) that I am not divorced they might deny my proposal of marriage.

 

What should I do in the above circumstances in the light of Islam as my main concern is , at any cost my child should not be bought up in the Shia family/atmosphere as my son is 04 years of age.

 

Awaiting your reply a.s.a.p.

 

Your brother in Islam.

 

(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:

 

Man divorce custody

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.

 

Dear and Beloved Brother, Islam is a religion based on the Truth and Allah and His Messenger (saws) have guided the believers to always practice the truth in their words, deeds and actions; regardless of the consequences the truth may bring.

 

Allah Says in the Holy Quran Chapter 4 Surah Nisaa verse 135: O ye who believe! stand out firmly for justice as witnesses to Allah even as (if it be) against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts) lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.


 

An institution and bond as sacred as a marriage between two believers should never be based on dishonesty or half-truths; but the believers must fear Allah and always abide by the truth in their words, deeds and actions.

 

Q-a: Should I inform them (X2) that I havent taken divorce.

It would be best to fear Allah Subhanah, and come forth with the truth and tell them clearly that you have not yet divorced your wife; regardless of what consequences might result from speaking the Truth.

 

Even if one gets away without telling the woman (X2) regarding the truth of the divorce, and you marry the woman; one day she will definitely find out and the chaos and distrust that might result in the aftermath would be much worse than facing the present consequences if the woman (X2) declines your proposal. Besides, you will be held accountable for your dishonesty and lie in the Just and Supreme Court of Allah Subhanah on the Inevitable Day of Judgment.

Thus my dear and beloved brother, the absolute best and only choice for a believer, who sincerely believes in Allah and the Last Day is to speak the truth and inform the woman (X2) and her family about the reality of the matter.

 

Q-b: If I apply for divorce with X1 , I will not be allowed to see my child of whom I get a custody of 02 days every fortnight.

Shariah Law, and indeed the civil laws of most nations allow visitation rights to divorced parents who do not hold custody of the children.

 

Shariah laws prescribes that if the children are below the age of puberty, the custody of the children in cases of divorce shall be given to the mother and the father will have visitation rights granted by the Shariah Court. Once the children reach the age of understanding or puberty, the father may initiate a Court proceedings to gain custody of the children. The Shariah Judge will then ask the children whom they wish to live with, and whatever decision the children make the Shariah Judge will implement the decision of the children.

 

In Shariah and in most developed nations, unless there is an absolutely valid reason for the Judge to deprive visitation rights to the biological father; there should be no problem in gaining visitation rights regarding your children even if you did apply for a divorce.

 

Q-c: If I inform to the new girl (X2) that I am not divorced they might deny my proposal of marriage.

There is a possibility that the new girl (X2) might or might not deny your proposal if you tell them the truth regarding your first marriage; but there is almost a certainty that one day she and her family will find out the truth and the chaos and mess the truth will create then will definitely be larger and more complicated than her refusal to accept your proposal at present.

 

Even if one gets away with the lie in the life of this world, there is absolutely no chance of getting away with the lie in the Presence of the All-Mighty and Just Lord in the Hereafter. Thus, my beloved brother, we implore you to fear Allah, and face the consequence the truth might bring in the life of this world, rather than face the Wrath and Anger of Allah Subhanah in the Hereafter. The maximum the new girl (X2) might do is refuse your proposal to marry you until your divorce is finalized; but the price you would have to pay for the lie later in your marriage with X2, and ultimately in the Presence of Allah Subhanah would be unbearable.

 

Your Question: What should I do in the above circumstances in the light of Islam as my main concern is , at any cost my child should not be bought up in the Shia family/atmosphere as my son is 04 years of age.

Dear and Beloved Brother, we understand your dilemma and concerns regarding the upbringing of your child; and the reality of the matter is that the damage is now done, and nothing other than a compromise with your wife (X1) can elevate the situation. Regardless of whether you live separate from her or divorce her, she will keep the primary custody of the child according to common law, and even according to Shariah Law. The only way to retain permanent legal custody of the child for you is to opt to come to a compromise and live with your wife (X1) in marriage, and with extreme patience and wisdom try to bring her to the Straight Path of Islam.

 

Telling a lie and marrying another woman (X2) will not help you in any way gaining custody of your child; but rather the lie will bring about only more complications and chaos in your new marriage. Thus brother, our sincere advice as your brothers in faith and your well-wishers is to fear Allah, and not put yourself in further trial by starting your new marriage based on a lie; but rather accept and face the reality and speak and only do what is aligned to the truth. That would be safer and purer for you in the life of this world and in the life of the Hereafter.

 

Dear and Beloved Brother, if it is any consolation we assure you that in these trying times that we live in today, you are not the only one faced with this dilemma! Many a young brother and sister fall in love and marry spouses from other religions, without seeking the guidance of Allah and His Messenger (saws), and at times even without the consent of their elders and guardians, and these youth in love disregard the consequences their transient desires might bring upon them and their families in the future!

 

If only our youth would heed the advice of Allah and His Messenger (saws) in all matters of their lives, they would be able to evade themselves from the trials which they bring upon themselves.

 

Sahih Al-Bukhari Hadith 7.27 Narrated by Abu Huraira

The Prophet (saws) said, "A woman is married for four things, i.e., her wealth, her family status, her beauty and her religion. So you should marry the religious woman (otherwise) you will be a loser."

Al-Tirmidhi Hadith 3090 Narrated by Abu Hurayrah

Allah's Messenger (saws) said, 'When someone with whose religion and character you are satisfied asks your daughter in marriage, accede to his request. If you do not do so, there will be temptation on Earth and extensive corruption.'

 

Al-Tirmidhi Hadith 3096 Narrated by Anas ibn Malik

Allah's Messenger (saws) said, "When a man marries he has fulfilled half of the religion; so let him fear Allah regarding the remaining half."

 

May Allah Subhanah make your trial easy for you and guide you to make the decision that is best for you in your life of this world and in the Hereafter.

 

If one trusts, obeys, and follows the guidance and commands of Allah and His Messenger (saws), he 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), he can be assured of being led astray.

 

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 in Islam,

 

 

Burhan

 


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