Message No : 139Sr.No : 567/725
Question By : khadijahhabeeb

Assalamu Alaikum
Respected Sir:
My question is that if mother is not able to take care of her child because of her bad manners and behavior with child, husband and other family members, also she leaves the husband house without permission and without taking her child. The child is not more than 6 years and instead of mother there are child¡¯s father, grandfather and grandmother who can take care of the child very well. So can they take the child in divorce periods? And it should be noted that she is not at home from 6 months.

 

Reply By : Asadullah Qasmi
Designation : Mufti, ODI, MMERC, Mumbai 

In the name of Allah the most Gracious the most Merciful
The answer to your question is as follows:
According to Shariah if the parents are divorced, the mother has the rights of custody of a minor. In the case of a male, till the age of seven and in the case of a female till the age of nine (Shaami vol. 3: HM Saeed). The mother will receive the rights of custody with these conditions: She is (a) a free person; (b) sane; (c) trustworthy; (d) capable (Ibid pg. 556). Hence, the mother¡¯s right of custody is forfeited if: 1) she remarries a Ghayr Mahram (stranger according to Shari¨¢h) of the child; 2) She demands remuneration for the upbringing of the child if there is another woman to rear the child without remuneration; 3) She does not attend to the child due to her leaving the house very often; 4) Openly indulges in sin and there is fear of the child being affected. If the mother does not or is unable to exercise her right, then the following persons have the right of custody in sequence: maternal grandmother; paternal grandmother; real sister; maternal sister; paternal sister, etc. After all the avenues of the female have been exhausted as explained by the Jurists, the males have the right of custody in the following sequence: a) father, paternal grandfather, real brother, paternal brother, maternal brother, etc. Irrespective of who (mother/father) has the rights of custody, the other party has visitation rights according to mutual understanding and consent. At all times the father of the child is responsible for maintaining the child; in the case of a female, until she marries; while in the case of a healthy male, until he reaches maturity. In the case of a disabled child (male or female) the father is permanently responsible. (Ibid 604)(And Allah Knows The Best).

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