Custody of a nine month old child

Q: What does sharia say concerning custody of 9 month old baby girl in divorce. Also do the paternal grandparents have rights on the child?

A: The wife (after being divorced) will receive custody of the child provided she does not remarry. In the case of a boy she will receive custody till the age of seven and in the case of a girl till the age of nine. Thereafter the custody will go to the father. The father and the paternal grandparents will have the right to visit the child.

And Allah Ta’ala (الله تعالى) knows best.

( تثبت للأم ) ( ولو ) كتابية أو مجوسية أو ( بعد الفرقة إلا أن تكون مرتدة ) فحتى تسلم لأنها تحبس ( أو فاجرة ) فجورا يضيع الولد به كزنا وغناء وسرقة ونياحة كما في البحر و النهر بحثا قال المصنف والذي يظهر العمل بإطلاقهم كما هو مذهب الشافعي أن الفاسقة بترك الصلاة لا حضانة لها وفي القنية الأم أحق بالولد ولو سيئة السيرة معروفة بالفجور ما لم يعقل ذلك ( أو غير مأمونة ) ( أو ) تكون ( أمة أو أم ولد أو مدبرة أو مكاتبة ولدت ذلك الولد قبل الكتابة ) لاشتغالهن بخدمة المولى لكن إن كان الولد رقيقا كن أحق به لأنه للمولى مجتبى ( أو متزوجة بغير محرم ) الصغير ( أو أبت أن تربيه مجانا و ) الحال أن ( الأب معسر والعمة تقبل ذلك ) أي تربيته مجانا ولا تمنعه عن الأم قيل للأم إما أن تمسكيه مجانا أو تدفعيه للعمة … ( ثم ) أي بعد الأم بأن ماتت أو لم تقبل أو أسقطت حقها أو تزوجت بأجنبي ( أم الأم ) وإن علت عند عدم أهلية القربى ( ثم أم الأب وإن علت ) بالشرط المذكور وأما أم أبي الأم فتؤخر عن أم الأب بل عن الخالة أيضا بحر ( ثم الأخت لأب وأم ثم لأم ) لأن هذا الحق لقرابة الأم ( ثم ) الأخت ( لأب ) ثم بنت الأخت لأبوين ثم لأم ثم لأب ( ثم الخالات كذلك ) أي لأبوين ثم لأم ثم الأب ثم بنت الأخت لأب ثم بنات الأخ ( ثم العمات كذلك ) ثم خالة الأم كذلك ثم خالة الأب كذلك ثم عمات الأمهات والآباء بهذا الترتيب ثم العصبات بترتيب الإرث فيقدم الأب ثم الجد ثم الأخ الشقيق ثم لأب ثم بنوه كذلك ثم العم ثم بنوه وإذا اجتمعوا فالأورع ثم الأسن اختيار  (الدر المختار 3/555-563)

Answered by:

Mufti Zakaria Makada

Checked & Approved:

Mufti Ebrahim Salejee (Isipingo Beach)

 

Three talaaqs during haidh

Q. A man issued  three Talaaqs to his wife during her state of haidh. He is still living with her claiming that the Talaaqs are not valid  due to her haidh. Is he correct?

A. Despite it not being permissible to issue Talaaq during the state of haidh, the Talaaq is valid. Since he had issued three Talaaqs, the issue of reconciliation  does not develop. They can no longer reconcile. The marriage has finally and irrevocable ended.

majlis ulema -south africa

My husband promised to accept Islam after our marriage

Q. My husband promised to accept Islam after our marriage. A short while after the marriage, he accepted Islam. However, soon thereafter he  began attending church and  said that he was not a Muslim. What is the state of our marriage?

A.  There never was a valid marriage. You never were his wife according to the Shariah. If he had had not accepted Islam before the marriage, then the Nikah was not valid. In that case you were living in adultery with him.  He is  not your husband. It is  absolutely necessary that you move out of his house. You have to separate yourself from him. Ill-luck and misfortune will overhang you as long as you are living with the kaafir man.

majlis ulema – south africa

Is it talaaq?

Q.   A husband said to his wife: “If you ever speak about this subject, it will mean you are divorced.” After some time, the husband wants to retract his statement and allow her to speak on the subject. Will this be permissible? What should he say to retract?

A.   A retraction will not be valid. If the wife speaks on the subject, one Talaaq Raj’i will come into effect. Before expiry of her iddat, the husband may reconcile with her without the need to renew the Nikah. However, one Talaaq will always remain. If at any time in future he issues two Talaaqs, then together with this one Talaaq, it will be three which finally and irrevocably terminates the marriage.

majlis ulema- south africa

“THE WOMAN IS LIKE A QAADHI”

Question: My husband gave me three Talaaqs, but now denies it although I am absolutely certain about this. He went to a Mufti who said that if I do not have witnesses, then the Nikah is still valid, and the word of the husband  will be taken. Now what must I do when I know  for a certainty that my husband gave me three Talaaqs. He has no Deeni scruples, therefore he denies the Talaaqs. He does not care if he will be living in the state of adultery. What should I do?

ANSWER:  The issue for you is quite simple. You do what the Shariah tells you to do, not what the errant mufti advised the man who is no longer your husband. The Mufti is not a Qaadhi. The issue of witnesses is therefore superfluous. According to the Shariah, in Talaaq issues of this nature, the word of the wife is final. The principle underlying this is: The woman is like a Qaadhi. That is, in so far as she herself is concerned, she should decree that the three Talaaqs have been issued and separate herself and  sit in Iddat, regardless of the tantrums of the man (the ex-husband).

Regardless of what any Mufti rules, the  woman should remember that it is her Shar’i right , in fact obligation, to make the decision when the husband denies having issued Talaaq and she is absolutely certain that he did give Talaaq. She should reject his  false claim and  understand that he is a liar lacking in fear for Allah Ta’ala, hence his satanic denial.

No amount of fatwas can negate this right which wives have, and no Mufti has the power, either coercive or moral and spiritual to compel her to remain with a man who has given her three Talaaqs or even one Talaaq Baa-in which terminates the Nikah.

Talaaq Explained

In spite of the numerous articles, lectures and programs on Talaaq, it seems that the Muslim public has not come to grips with the concept of Talaaq, its proper implementation or its disastrous consequences if abused. In light of this, we attempt to present “Talaaq” before you in as simple a manner as possible.
What is Talaaq?
Talaaq is the act of issuing divorce, whether in word or in writing.
What is the Islamic status of Talaaq?
Rasoolullah Sallallaahu Alayhi Wa Sallam has described Talaaq as the most hated of permitted actions in the sight of Allah. (Abu Dawud) It is allowed only under specific circumstances. Hence, Talaaq is of a very serious nature and should never be treated lightly.
Who can issue Talaaq?
The husband has the sole prerogative of issuing Talaaq. A woman who is living in an unbearable marriage due to an abusive spouse may apply for annulment of her marriage from an Ulama body. Although Talaaq is the right of the husband, he will be answerable in the court of Allah should he abuse this right.
Under what circumstances may Talaaq be issued?
Talaaq is issued as a last resort, not as a first. Numerous verses in the Qur’an stress the need for mutual appreciation, overlooking faults and reconciliation in bitter situations. Talaaq should only be considered after all options are exhausted, there seems to be no future in the marriage, and advice from the Ulama is sought.
How should Talaaq be issued?
Talaaq is only to be pronounced once. This is accomplished by the husband stating, “Talaaq!”, “I give you Talaaq!”, “I divorce you!” and similar statements. In written form, the words have the same effect.
Do not under any circumstances pronounce Three Talaaqs. Such an action is completely Haraam and had greatly angered Rasoolullah Sallallaahu Alayhi Wa Sallam. The effect of Three Talaaqs issued at once is that it will cause an immediate termination of the Nikah without scope for reconciliation. It is an evil that many have regretted. Do not be of those who have to live with this regret.
When should Talaaq be issued?
To pronounce Talaaq whilst a woman is menstruating is Haraam and though a Talaaq pronounced during menstruation takes effect, it is compulsory for the husband to revoke the Talaaq, if possible.
The period of time wherein a woman is not menstruating is known in Islam as Tuhr (clean period). Talaaq should only be pronounced during a Tuhr period in which there is no intimate relations between spouses.
This article is meant to provide a brief understanding of Talaaq. Consulting with the Ulama is a must before contemplating the issuance of Talaaq.

My husband issued three Talaaqs by text message

Q. My husband issued three Talaaqs by text message. Are the Talaaqs valid?
A. All three Talaaqs issued by your husband by ‘text message’ are valid. You are no longer in his Nikah. You have to remain in Iddat. After expiry of the Iddat period you will be free to marry anyone you wish.

Talaaq given during haidh

TALAAQ GIVEN WHEN WIFE WAS IN HAIDH, WHEN SHOULD IDDAT BEGIN

Q. A man issued Talaaq to his wife while she was in the state of haidh. From when will her iddat begin?
A. The iddat begins immediately. In other words all the rules which the woman has to observe during iddat commence immediately the Talaaq is given. However, the three haidhs of the iddat will be calculated from the next haidh, not the haidh in which the divorce took effect.