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:

what is the concept of sponsership in islam of boy (13) and a girl(8). when the wife seeks for khul`a 4 a valid reason? The husband is harrassing his wife with a written fatwa of shiekh As Sudais imamul haram, that the boy is free 4 his choice but the gilr will be with his father only . And the husband is putting a condition on his wife to sign on that fatwa give the rights of the daughter totally to him and then only he will free her with khul`a separation. plz guide us according to quraan wa sunnah how to solve this prob?

We have never read in quraan abt the condition abt the daughter`s sponsership or kafalah., niether we found any exampl;e in ahaadeesth. I`ll b obliged to u if u`ll give priority to this question as the dicesion has to be taken in this week only , plz plz help us with your urgent answer. jazakallah.

(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 of children in divorce

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.

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 the 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.

If your particular case the mother will get the primary custody of the girl (8 years) until she has reached the age of puberty, and if then the father wishes to get primary custody of his daughter, he will have to approach a Shariah Court and the Shariah Judge will enforce the decision made by the daughter regarding whom she wishes to live with, her father or her mother.

The boy of 13 has already reached his age of puberty, thus if the father wishes to gain primary custody, he will have to approach the 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 and the daughter, absolutely regardless of who holds his custody, will be borne by the father.

Whatever written of Truth and benefit is only due to Allah’s 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,

Burhan