Custody children divorce.
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
friend wife is requesting for khula. They were married for 15 years and started
to fight for very petty reasons and now the wife is very adamant not to accept
any reconcillation and send a legal notice (in India). Her family supports her.
We all tried very hard but without success. They have two children Son 14 years
and girl-10 years. The legal view is that the children should be with mother.
However, we would like to get the Islamic views. Who will have the custody of
the children. Will my friend has to pay for monthly expences and until when?
What about meher? The children are more confortable with the father.
Jazakallah
Khair
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errors in the above statement. The forum does not change anything from
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confidentiality.)
Answer:
Custody children
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.
Your
Question: Who will have the custody of the children.
In the unfortunate event of a divorce in Islam, regardless
of who amongst the spouse initiates the divorce, 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 for the financial upkeep of the children.
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 this particular case the mother will get the primary
custody of the girl (10 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 14 has already reached his age of puberty, thus
if the father wishes to gain primary custody of his son, 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.
Your
Question: Will my friend has to pay for monthly expences and until when?
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 until the children are able to sustain themselves on their
own.
Your
Question: What about meher?
Allah Says in the Holy Quran Chapter 2 Surah
Baqarah verse 229:
229 A divorce is only permissible twice: after that the parties should
either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back
any of your gifts (from your wives) except when both parties fear that they
would be unable to keep the limits ordained by Allah. If ye do indeed fear that they would be
unable to keep the limits ordained by Allah, there is no blame on either of
them if she give something for her
freedom. These are the limits ordained by Allah; so do not transgress
them. If any do transgress the limits
ordained by Allah such persons wrong (themselves as well as others).
Allah Says in the Holy Quran Chapter 4 Surah
Nisaa verse 20:
20 But if ye decide to take one wife in place of 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?
If it is the husband who initiates or declares the
divorce, then it would be absolutely and categorically unlawful for him to take
back anything he might have given to his wife during their marriage.
But if the wife initiates a divorce or ‘khula’, she would
be required by Shariah to pay back the ‘mehr’ given to her by her husband at
the time of marriage….but if the husband of his own free will wishes to forego
receipt of the ‘mehr’ he had paid her, he is well within his rights to do so.
Your
Question: The children are more confortable with the father.
Since the girl of 10years has not yet reached the age of
understanding and puberty, regardless of whom she is comfortable living with at
the moment, her primary custody will be held by her mother. Once she has reached the age of puberty and
understanding, and her father wishes to hold primary custody of his daughter,
he would be required to move his case to the
The boy of 14 years will be deemed to have reached the age
of puberty, and if the father wishes to gain primary custody of his son, he
would have to initiate his custody case in a Shariah Court of Law….and the
Shariah Judge will enforce and implement the decision of the boy regarding his
choice of custody.
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
Wister