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DISPELLING SOME MISCONCEPTIONS GERMANE TO HADHAANAH/CUSTODY OF CHILDREN

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There prevail several misconceptions germane to the Shar’i Injunction of Hadhaanah, that is custody of children. In this brief article some misconceptions are dispelled for the benefit of Muslims who generally lack knowledge of the Masaail of Deen.

The word Hadhaanah can be pronounced with a fat’hah, or with a kasrah, that is hidhaanah. (Shaami, 2/687, Al-Ibaanah, 1)

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Definition

The authorities of the Shariah have defined hadhaanah as follows:

The Shar’i definition of hadhaanah is: The upbringing of the child by the one who holds the right. (Shaami, 3/555)

Hadhaanah or Hidhaanah refers to a mother keeping and separating the child from the father so that the child be by her, for her to care and look after the child. (Badaa’i, 4/40)

Hidhaanah is the nurturing of the child. The first right of Hidhaanah goes to the mother, before separation and after separation, unless she is a murtaddah, or faajirah who cannot be trusted. (Dustoorul Ulama, 2/27)

Haadhinah is the woman to whom the child is entrusted. (Al-Ibaanah, 1)

From the above definitions we gather that Hadhaanah is the keeping, caring, nurturing and nursing of the child.

This Shar’i Injunction is generally translated and referred to in the English language as custody of a child.

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When Does Hadhaanah or Custody of a Child Begin and Who Has this Right?

The custody, care and upbringing of a child obviously begins when the child is born, and the right of custody is awarded to the mother by the Shariah.

The authorities of the Shariah state:

Hadhaanah is not confined to after separation of the couple. Nurturing the child during the subsistence of the marriage is also termed as Hadhaanah. (Shaami, 2/688)

The most cautious and beneficial stance is for the small child to be with the mother in view of her having more loving care and more gentleness with the child. (Sharhu Mukhtasarit Tahaawi, 5/322)

The father does not have the wilaayat (authority/Shar’i right) of keeping the child and providing hadhaanah (childcare) with the mother. The mother enjoys precedence in view of the right of the child. (Sharhu Mukhtasarit Tahaawi, 5/322)

It should be known that the Shariah has vested the right of looking after and tending to the needs of small children, in those who are compassionate to them, on account of them being unable to look after themselves and tend to their needs by themselves…

The Right of Hadhaanah (custody) has been vested in mothers in view of their gentleness, compassion and their ability to fulfil that (right) by virtue of them adhering to their homes.

It is clear that the mother is more loving and caring for the child than the father. Hence, she bears in this course such difficulties which the father cannot bear.

Handing this (right of custody) to her is of greater benefit to the child.

(Al-Mabsoot, 5/207)

The most deserving of hadhaanah of the child during the subsistence of the nikaah and after separation is the mother. (Aalamgeeri, 1/541)

The mother has the first right in hadhaanah (caring for the child), before the separation and after the separation. The recalcitrance (nushooz) of the wife does not cancel her right to look after the child. (Mukhtasarul Fataawal Mahdiyyah, 29)

If the mother makes khula’ with the husband agreeing to hand over the child to him, the khula’ will be valid whilst the condition (of handing the child over to him) will be null. (Shaami, 2/690)

The following salient points emerge from these explicit statements of the Authorities of the Shariah:

  1. Custody starts once the child is born.
  2. Custody immediately goes to the mother.
  3. The father does not share in this initial custody right.
  4. The father cannot take the children away from the mother when she enjoys the right of hadhaanah.
  5. The father in no way can compare to the mother in the qualities necessary for the rearing of small children.
  6. Even if the wife happens to be recalcitrant, she retains her right to keep the children and nurture them.
  7. This right of rearing and nursing the child is also the right of the child itself and hence the mother cannot cancel this right. She has to provide this care as long as she is able to or is not disqualified.
  8. A general misconception is that hadhaanah only comes into effect when the couple has separated. This is erroneous.
  9. Another misconception is that if the wife leaves the marital home without the permission of the husband, the custody of the children goes to the father. This too is erroneous as is obvious from the citations above.

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The Basis and Rationale Behind the Mother Enjoying Exclusive First Right to Her Children

The basis and rationale of hadhaanah being the exclusive first right of the mother are explained in the following texts from the authoritative works of the Shariah:

A woman came to Rasulullah (Sallallahu alaihi wasallam) and said: “Yaa Rasulallah! This child of mine, my womb was a container for it, my lap a home and my breast a bottle. Now his father thinks that he can snatch him away from me. Rasulullah (Sallallahu alaihi wasallam) replied: “You have the first right over the child as long as you do not remarry.” (Badaa’i, 4/42)

It is reported that Umar Bin Khattaab (Radhiyallahu anhu) issued talaaq to Ummu Aasim – her name was Jameelah. He came to Hazrat Abu Bakr (Radhiyallahu anhu) arguing his case of taking the child from her. Hazrat Abu Bakr (Radhiyallahu anhu) replied: “Her breath – in one narration comes: her saliva – is better for the child than the butter and honey you have O Umar! Leave him by her till he matures.” (Ghaayatul Bayaan, 6/346)

In another narration appears that the two were pulling at the child and the child started to cry. So, they went to Hazrat Abu Bakr (Radhiyallahu anhu) who said: “Her touch, her lap and her breath are better for the child than you. Leave the child to mature and decide for himself.” (Marginal Note of Ghaayatul Bayaan, 6/347)

Women are more compassionate, more gentle and more aware of how to nurture a child. (Badaa’i, 4/41)

The right of hadhaanah (keeping, caring, nurturing and nursing children) is entrusted to women in view of them having more insight and being more positioned than men to protect children on account of their abounding compassion and love, and their clinging to their homes. (Ghaayatul Bayaan, 6/346)

The following points are established from the above texts:

  1. The mother holds a greater right over the father in the first stage of custody.
  2. The touch of the mother is better for the child than the money and gifts of the father.
  3. Women have more knowledge and are naturally more gifted than men in rearing small children.
  4. Women love their children more than fathers.
  5. Fathers are not in the home permanently; hence they cannot compare to mothers in the care of children.
  6. The bastion of a mother is her home wherein she remains resolutely. She is therefore ideal for the nurturing and nursing of her offspring.

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The Mother is Entitled to Remuneration for Her Care and Nursing of Her Children

The Authorities of the Shariah state that the mother is entitled to a remuneration for her upbringing of her children. Some references appear hereunder:

The mother is entitled to ujrat (fee/remuneration) for her hadhaanah when she is not remarried, and she is not in iddat of the father. This ujrat is not the remuneration for breastfeeding the child. (Aalamgeeri, 1/543)

The haadhinah is entitled to a fee for her childcare… This fee is not the fee for breastfeeding. (Al-Ibaanah, 3)

Since the mother has attended to the care of the child, she has confined herself to its upbringing and is therefore unable to earn a living, it is waajib upon the father (of the child) to provide her with that which substitutes her expenses, that is, the fee for her childcare. (Al-Ibaanah an Akhthil Ujrati alal Hidhaanah, 10)

The well-to-do father will compulsorily have to pay the mother a fee for the hadhaanah for the sake of the child. (Shaami, 2/689)

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After the Mother

After the mother, the Right of Custody goes to the mother’s mother (nani). This can be in one of the following cases:

  1. The mother passes away.
  2. The mother refuses to look after the children.
  3. The mother is incompetent or unqualified to take care of her children.
  4. The mother marries a ghair mahram (unrelated man) of the child.

After the mother, is the right of the mother’s mother (nani). This is when the mother either dies, or she does not want to look after the child, or she waives her right, or she marries a stranger (an unrelated man) to the child, or she is not fit to look after the child. The latter includes the faajirah (flagrant violator of the Shariah), and the untrustworthy woman. (Shaami, 2/693)

The above scenarios apply to all those females in line for custody, such as the nani, dadi, khala, et al.

If any of them is unworthy, such as being out of the house for most of the day or involved in haraam, fisq and fujoor then she becomes disqualified and the next in line will have the right to take the children for nurturing.

Thus, when a man’s wife passes away and she leaves behind small children, the custody of the children goes to the nani, and thereafter to the other females who hold the right.

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The Khala Being Compelled to Look After The Child

In certain cases, a woman will be compelled to look after the children. A case in instance is given by the Fuqaha as follows:

In Fataawa Abul Laith is mentioned that Abu Bakr Iskaaf was asked about a maternal aunt (khala) of two little children, and the khala…says, “I am not going to leave them to stay with me in my house,” she will be compelled to let them be with her in her home until they do not need her.

Faqeeh Abul Laith (Rahmatullahi alaihi) adds: “She has to care for them, just like she has to spend on them when they are in need of expenses, and she is able to. Similar is the case when they are in need of care.”

(Al-Muheetul Burhaani, 4/244)

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The Good of the Child is of Paramount Importance

The illustrious Allaamah Shaami states:

The mufti should have insight to see what is in the best interest of the child. Sometimes the child may have a close relative, but the relative hates the child and wishes that the child dies, whilst sometimes the (second) husband of the mother is compassionate and it pains him to be separated from the child. The near relative wishes to take the child and harm the child and hurt the child’s mother, or devour the child’s wealth, etc.

Sometimes the near relative’s wife harms the child much more than the mother’s husband who is unrelated to the child. Sometimes the near relative has children who it is feared will be a fitnah upon the small girl by living with them.

When the mufti or qaadhi comes to know of any of this, it is not lawful for him to take the child from the custody of the mother, as the crucial factor in Hadhaanah (childcare) is the good of the child. (Shaami, 2/694-5)

Two scenarios and pertinent Fatwas in the two cases, are presented hereunder:

  1. I am the maternal grandmother of a 4-year-old girl whose mother (my daughter) has passed away. Her father (my son-in-law) has recently remarried and taken away the child without my consent.

Since the passing away of the mother, I have had custody of the child, and I was taking full care of her. Now the child’s father who has remarried refuses to bring back the child. What are my rights towards the child in terms of the Shariah?

  1. According to the Shariah you, the maternal grandmother, are the lawful and rightful custodian of the child. Her father is not the custodian.

While he can visit the child and have full access to her, he has no right of denying you custody. His act of depriving you of your Shar’i right of custody is haraam. (The Majlis, Vol. 27 No. 8)

  1. I am a divorcee with three minors – one son and two daughters. Their ages are 2, 4 and 7 years. My son is 7. The father claims custody of the son. He says that according to the Shariah custody of the 7-year-old boy is his right. He has married again. The whole day he is involved in his business. His parents have a haraam business.

Although I accept his right, the question is the welfare of my son. How will he be able to care for the boy when the child will practically not be in his custody for the greater part of the day? Proper care cannot be expected from the stepmother.

He argues that his mother will take care of the child when he goes to the shop. The television is on almost the whole day at his parents. They are not strict followers of the Shariah.

Does my mother (the maternal grandmother) not have a greater right than the paternal grandmother? Do I not have a greater right over my own child than the stepmother? In these circumstances can I deny the father custody?

  1. The Deeni welfare of the child is of paramount importance. In the circumstances explained by you, it is obvious that his father is incapable of caring for him. The grandparents being fussaaq are out of the question. Proper care is not to be expected from the stepmother. You may therefore deny the father custody.

He may visit the children and take them to his house, but he must bring them back to you by Maghrib. If he wishes the children to sleep at his place occasionally, do allow it. However, they should not stay or even go to the house of their grandparents in view of the haraam television.  (The Majlis, Vol. 27 No. 5)

May Allah Ta’ala guide us to follow the Shariah which He is pleased with, Aameen, Yaa Rabbal Aalameen!